Calcutta High Court (Appellete Side)
In Re: Hi-Speed Logistics Private ... vs Food Corporation Of India & Ors on 18 August, 2021
18.08.2021
Item No.09
Court No.30
Avijit Mitra
MAT 791 of 2021 (Via Video Conference)
with
CAN 1 of 2021
In re: Hi-Speed Logistics Private Limited
- Versus -
Food Corporation of India & Ors.
Mr. Tanmoy Mukherjee,
Mr. Dinabandhu Chowdhury,
Mr. Amal Kumar Saha,
Mr. Iresh Paul
.....for the Appellant
Mr. Kamal Kumar Chattopadhyay
...for the F.C.I.
The present appeal has been preferred against an order
dated 11th August, 2021 passed in WPA No.12144 of 2021.
Mr. Mukherjee, learned advocate appearing for the
appellant/writ petitioner submits that the firm, namely, Hi-
Speed Logistics Private Limited participated in a tender
process initiated by the Food Corporation of India (in short,
FCI) authorities vide Notice Inviting Tender (in short, NIT)
dated 17th May, 2021. In terms of Clause 3(a)(iv), a tenderer is
required to submit audited Profit and Loss Account (in short,
P&L Account) and Balance Sheet for the preceding three
financial years, meaning thereby the financial years of 2017-
18, 2018-19, 2019-20 since filing of such audited P&L
Account and Balance Sheet for the year 2020-21 on the tender
submission date was not possible and in view of the
2
pandemics the date for finalization of such accounts was
deferred. In view thereof, the respondents ought to have
considered the appellant's work experience pertaining to the
said financial year 2020-2021.
He submits that upon consideration of the bid
documents as submitted, the authorities of FCI uploaded the
technical bid on 16th July, 2021 at 4.48 p.m. wherefrom the
appellant came to learn that its technical bid has been
rejected due to non-submission of requisite documents as per
the Model Tender Form (in short, MTF), however, the
authorities did not disclose the particulars of the 'requisite
documents'. The authorities were under an obligation to give a
reasoned decision but no such decision was communicated.
The appellant's bid was rejected by a cryptic order. As 17 th
July and 18th July, 2021 were weekend holidays and 21 st July
was also a holiday in view of a religious festival, the counting
of three working days would, accordingly, commence from 19 th
July and the representation was thus submitted within three
working days on 22nd July, 2021 in terms of Clause XVIII(c) of
the MTF. Without considering the same, the authorities
opened the financial bid on 22 nd July, 2021 though in the
document disclosing the result pertaining to the technical bid,
the date for opening of the financial bid was stipulated to be
21st July, 2021. The said issues though specifically urged were
not considered by the learned Court in course of hearing of
the writ petition.
He further argues that one of the grounds towards
rejection of the writ petition was that the only bidder who
succeeded at the technical stage had not been impleaded as a
party respondent. Such ground is not sustainable since in a
case where a participant challenges the rejection of its own
technical bid, the other tenderers are not necessary parties. In
support of such contention reliance has been placed upon the
judgment delivered in the case of Silppi Constructions
Contractors Vs. Union of India & anr., reported in (2020) 16
SCC 489.
Per contra, Mr. Chattopadhyay, learned advocate
appearing for FCI submits that it would be explicit from the
tender documents that the tenderers were required to possess
work experience of 5 years. The appellant furnished work
experience in respect of financial years 2019-2020 and 2020-
2021. The financial year 2020-2021 stood excluded due to
lack of P&L Account and Balance sheet. The experience
pertaining to the other year, as indicated in the document
annexed at page 54 of the stay application, did not amount to
25% of the estimated value of the contract to be awarded in
any of the single contract nor 50% of the estimated value of
the contract to be awarded, in different contracts.
He further submits that in the web portal of FCI e-mail
of General Manager was open and available from 16 th July,
2021 onwards, every day, irrespective of holidays but the writ
petitioner submitted the representation on 22 nd July, 2021.
The FCI authorities had no obligation to consider such belated
representation.
Records reveal that after filing of the writ petition
further materials were brought on record by the writ petitioner
through a supplementary affidavit. A reply was also filed by
FCI. Since all the materials are on record, the appeal itself and
the connected application are taken up for final hearing.
The primary argument of Mr. Mukherjee is that the
appellant's work experience pertaining to the financial year
2020-2021 could not have been excluded by the authorities in
view of Clause 3(a)(iv) of the NIT which runs as follows:
"Duly audited P&L Account and Balance sheet for
preceding 3 financial years. For immediate preceding
financial year, in case the tender submission date is
before the due date for finalisation of accounts as per
law, financial statements for previous 3 years (prior to
the immediate financial year) shall be submitted. In case
the bidder submits the Experience for the years not
covered under P&L Account and Balance sheet of 3
financial years as mentioned above he/she shall also
submit duly audited P&L Account and Balance sheet for
the relevant period for which experience has been
claimed and submitted."
The conditions, as incorporated in the NIT, need to be
considered together and not in isolation. A particular clause
cannot be picked up and highlighted. A composite reading of
the clause as quoted above does not reveal that the work
experience of the appellant pertaining to the financial year
2020-2021 ought to have been taken into consideration. The
said year is excluded since finalization of the accounts
pertaining to the said year was not complete. We do not find
any infirmity in such decision of the authorities towards non-
acceptance of work experience of the appellant pertaining to
the said financial year. On the basis of the work experience of
the financial year 2019-20, as detailed in the document
annexed at page 54 of the stay application, the appellant
could not fulfil the experience criterion as specified in the NIT
and MTF.
No mala fide can be attributed to such action of the
authorities and it cannot be said that the authorities have
acted in a manner which would benefit a private party at the
cost of the authorities. The appellant has failed to establish
any arbitrariness or unreasonableness in the tender process.
The judgment delivered in the case of Silppi Constructions
(Supra) is also distinguishable on facts.
The invitation to tender is in the realm of contract and
the Writ Court should not easily interfere in the same. The
learned Judge, upon dealing with all the factual issues arrived
at specific findings and we do not find any error in the order
impugned.
The appeal and the connected application are,
accordingly, dismissed.
All parties shall act on the server copies of this order
duly downloaded from the official website of this Court.
(Subhasis Dasgupta, J.) (Tapabrata Chakraborty, J.)
