Calcutta High Court (Appellete Side)
Shiba Prasad Banerjee vs The State Of West Bengal And Others on 7 April, 2021
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
WPA No. 20340 of 2019
With
IA No: CAN 1 of 2020 (Old No.182 of 2020)
With
CAN 2 of 2020
Shiba Prasad Banerjee
Vs.
The State of West Bengal and others
For the petitioners : Mr. Saptangsu Basu,
Mr. Swarup Paul,
Mr. Surya Maity,
Ms. Amrita Maji,
Ms. Mrinalini Majumder
For the State : Mr. Samrat Sen,
Mr. Amitava Mitra,
Ms. Amrita Panja
Hearing concluded on : 12.03.2021
Judgment on : 07.04.2021
Sabyasachi Bhattacharyya, J:-
1. The petitioner participated in a tender dated September 6, 2019 floated
by the respondent authorities for cleaning and housekeeping services in
respect of two hospitals at Kalna and Katwa and succeeded, along with
respondent nos. 9 and 10, in the technical stage. Thereafter there was a
tie between the petitioner, respondent nos. 9 and 10 and others at the
financial bid stage, for which the fate of the bidders was decided by lots.
The petitioner participated and lost in respect of both the hospitals and
three others, including respondent nos. 9 and 10, were chosen as
successful bidders for each hospital and work orders issued to them. On
October 25, 2019, the petitioner gave a representation to the tender
issuing authorities indicating his grievances at the selection of
respondent nos. 9 and 10 even at the technical stage. The present writ
petition has been filed challenging the tender process and consequential
work orders and for a direction on the respondent authorities to consider
the petitioner's aforementioned representation.
2. The petitioner assails the selection of respondent no. 9 on two grounds.
3. First, that the petitioner had submitted the PAN Card of Jayanti Saha
while all other documents were in the name of M/s Command Security
Services, which is respondent no. 9. Secondly, scanned copies of
documents, which were required by Clause 10.5.2 of Section VI of the
Notice Inviting Tender (NIT) to be uploaded in black and white, were
submitted in colour.
4. The selection of respondent no. 10, namely M/s Noble Security Services,
is challenged on several grounds.
5. First, no GST Certificate, but only a provisional certificate was submitted
by the said respondent.
6. Secondly, the Professional Tax Enrolment of respondent no. 10 had
expired on July 31, 2018, that is, before the tender.
7. Thirdly, instead of submitting a Performance Statement as required
under Section IX of the NIT, the said respondent had submitted only an
affidavit declaring that performance statement has been submitted. Such
affidavit was notarized on April 19, 2018 while the tender was invited on
September 6, 2019.
8. The fourth objection, common with respondent no. 9, was that colour
scan of documents were uploaded, contrary to the black and white
required under Clause 10.5.2.
9. Learned senior counsel appearing for the petitioner relied on Clause
10.5.2 of the NIT, one of the requirements stipulated wherein is that
scans of the technical documents had to be uploaded in black and white.
10. Clause 10.5.3 enumerates the documents to be contained in the non
statutory cover, which included Certificates pertaining to Income Tax
PAN, Professional Tax Registration and GST Registration.
11. Clause 18.6, it is contended, specifies that if any document required to
be submitted for tender by the bidder in his technical proposal is not
submitted or is found to be deficient in any manner at any stage after
opening of bid,, the bid may be summarily rejected.
12. Apart from the grounds pleaded in the writ petition, learned senior
counsel for the petitioner contends that the time-limit stipulated for
furnishing performance security was relaxed in the case of respondent
no. 10 after it became successful in the tender.
13. Section IX of the NIT provides a proforma performance statement,
credentials of which are also one of the requirements, along with
documentary evidence, as per Clause 10.5.3 of the NIT.
14. Learned senior counsel argues that respondent nos. 7 and 8, who were
responsible for conducting the present impugned tender, were also
instrumental in floating a previous tender, where the petitioner, on his
bid being rejected, submitted a representation on October 10, 2017. A
co-ordinate Bench, by an order dated November 3, 2017, the tender
issuing authority to dispose of such representation in accordance with
law. The present respondent no. 7 himself had communicated such order
dated November 14, 2017, issued by the Director of Health Services,
West Bengal, where it was observed that the selected bidder had not
fulfilled the terms and conditions of the tender bid documents and the
tender had been cancelled and a fresh tender directed to be invited.
15. Upon a subsequent writ petition being filed by the present petitioner
alleging that the persons responsible for the lapses in the previous tender
were again given charge of the fresh tender, the learned Single Judge
directed an enquiry to fix responsibility. The present respondent no. 7
was found in the resultant enquiry to be partially responsible for such
lapses, since he should have checked the documents before issuing
award of contract.
16. By relying upon such developments in a previous tender, the petitioner
alleges that the respondent nos. 7 and 8 are wreaking vengeance on the
petitioner in the present tender as well.
17. In reply, learned senior counsel appearing for the respondent authorities
submits that, as far as respondent no. 9 is concerned, PAN Card of the
sole proprietress of the concern had been filed. The objection as to colour
scan being filed instead of black and white, it is contended is technical in
nature and best left to the discretion of the tender issuing authorities.
18. Regarding respondent no.10, it is argued that it had submitted
Provisional GST Certificate, a GST payment receipt dated August 21,
2019 (which was contemporaneous with the tender) and an enrolment
application for GST registration. These were considered sufficient by the
tendering authorities on the score of GST.
19. As far as Professional Tax is concerned, learned senior counsel for the
tendering authorities argues that respondent no. 10 had submitted up-
to-date professional tax payment receipt for the relevant period (April 1,
2019 to March 31, 2020). The tendering authorities had considered such
document sufficient compliance with the NIT clauses.
20. Since respondent no. 10 had submitted performance statement of
January 18, 2019, which was for a period before the impugned tender,
which was issued on September 6, 2019, the authorities accepted it as
due compliance with the relevant NIT clause.
21. Regarding filing of colour scan, the contention of the tendering
authorities is similar to that of respondent no. 9.
22. In support of such contentions, learned senior counsel for the
respondent authorities files a detailed written instruction in support of
his contentions, apart from relying on the annexures to the writ petition
itself.
23. By placing particular reliance on Clause 19.3 of the NIT, learned counsel
points out that prior to the detailed evaluation of price bids, the
purchaser will determine the substantial responsiveness of each bid. A
substantially responsive bid is defined in the clause as one, which
conforms to all the terms and conditions of the TE documents without
material deviations. 'Material deviations' is defined as deviations from, or
objections or reservations to, critical provisions. Examples thereof, as
given in the clause, are those concerning Performance Security, terms
and mode of payment, force majeure and applicable law.
24. Since, in the present case, there was substantial compliance without
material deviations from critical provisions, as illustrated in Clause 19.3,
it was fully within the power of the tendering authorities to accept such
bids.
25. Moreover, learned senior counsel appearing for the tender issuing
authorities argues, the petitioner himself participated up to the lottery
stage of financial bids and waived his right to turn back and challenge
the process after knowing the final result, in which he lost out.
26. Learned counsel for the respondent places reliance on Poddar Steel
Corporation v. Ganesh Engineering Works and others, reported at (1991) 3
SCC 273 in support of his contention that deviation from non-essential
or ancillary/subsidiary requirements and minor technical irregularities
on the part of the bidder can be waived.
27. Upon considering the materials on record and submissions of learned
senior counsel for the parties, it is evident that the petitioner had
actually taken a chance by participating in the entire tender process and
had not raised any objection regarding the technical bid before he
participated and lost only on lots at the financial bid stage. Such conduct
indicates opportunism on the part of the petitioner, if not outright
waiver.
28. Secondly, the summary rejection of any document submitted in the
technical bid is a discretion vested in the tender issuing authority and is
not mandatory, as clearly indicated in the expression "may be" preceding
such rejection, appearing in Clause 18.6. Such clause cannot be
construed as mandatory.
29. That apart, Clause 18.6 of the NIT, which contemplates such direction, is
to be read in conjunction with Clause 19.3, which stipulates that
substantial responsiveness of a bid will be one which conforms to the
terms and conditions without "material deviations". The said term has
been further qualified by the expression "deviations from, or objections or
reservations to critical provisions". Illustrations of such deviations have
also been given, which hit at the root of the NIT. The deviations and
irregularities alleged by the petitioner are not "material deviations" from
"critical provisions" at all. It was the sole discretion of the tender issuing
authority to consider the technical bids of respondent nos. 9 and 10 as
substantial compliance.
30. The allegations of mala fides on the part of respondent no. 7 and 8,
merely on the basis of one of them (respondent no. 7) having been held
partially responsible for lapses in a different tender, since he ought to
checked to documents, cannot ipso facto give rise to the presumption of
mala fides. The person held primarily responsible in that case is not
pleaded or proved to be involved in the present tender process at all.
31. The allegations of non-compliance on the part of respondent nos. 9 and
10 of the NIT provisions, as discussed above, are flimsy at best, and do
not fall within the category of "material deviations" from "critical"
provisions of the NIT. The ratio laid down by the Supreme Court in
Poddar Steel Corporation (supra) is, thus, squarely attracted in the
present case.
32. The colour scan allegation is ex facie frivolous in case of both respondent
nos. 9 and 10, since the requirement of black and white was not of an
absolute mandatory nature; on the contrary, a colour scan could be over-
compliance rather than under, since it would provide the exact replica of
the documents.
33. As far as respondent no. 9 is concerned, submission of the PAN Card of
the sole proprietress of the bidder concern was sufficient, since a sole
proprietorship is not a separate juristic entity, distinct from the
proprietor, in law.
34. The allegation of performance security relaxation for respondent no. 10 is
absent from the pleadings in the writ petition. Moreover, such challenge
was post facto, after the petitioner took a chance till the financial bid
stage and lost in the drawing of lots upon there being a tie.
35. The GST and Professional Tax clauses of the NIT were also substantially
complied by respondent no. 10. It is well settled by a plethora of
judgments, which need not be multiplied here, which lay down that
satisfaction on compliance of the tender terms and the choice of
competence for the proposed work lie within the domain of the employer,
that is, the tender issuing authority. Such discretion ought not to be
interfered with by courts. In the present case, no patent mala fide and/or
favouritism or arbitrariness in the conduct of the impugned tender has
been demonstrated at all by the petitioner.
36. Thus, the impugned tender is held to have been valid on all scores on the
materials on record, rendering the challenge thereto and consequential
direction on the authorities to consider the petitioner's representation
meaningless.
37. In view of the above observations, the writ petition fails.
38. Accordingly, WPA No. 20340 of 2019 is dismissed on contest. The
connected applications, bearing CAN Nos. 1 and 2 of 2020, are disposed
of consequently.
39. There will be no order as to costs.
40. Urgent certified copies, if applied for, be furnished to the parties upon
due compliance of requisite formalities.
( Sabyasachi Bhattacharyya, J. )
