Calcutta High Court (Appellete Side)
Shiba Prosad Banerjee vs The State Of West Bengal And Others on 22 January, 2021
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
WPA No.1724 of 2020
IA NO: CAN 1 of 2020
Shiba Prosad Banerjee
Vs.
The State of West Bengal and others
For the petitioner : Mr. Saptangshu Basu,
Mr. Swarup Pal,
Mr. Surya Maity,
Ms. Amrita Maji,
Ms. Mrinalini Majumder,
Mr. Anirban Chakraborty
For the respondent-authorities : Mr. Jishnu Chowdhury,
Mr. Robiul Islam,
Ms. Pramita Banerjee
For the respondent no.10 : Mr. Aurobinda Chatterjee,
Mr. A. Sengupta
Hearing concluded on : 15.01.2021
Judgment on : 22.01.2021
Sabyasachi Bhattacharyya, J:-
1. The petitioner challenges the rejection of his bid and the acceptance of
respondent no.10 as the successful bidder in a tender floated by the
respondent-authorities on May 27, 2019 for supply of cooked diet for
indoor patients admitted to health facilities. The Revised Bid
Summary Report (Annexure P-1 at page 81 of the writ petition)
indicates that the petitioner's bid was rejected for non-submission of
Performance Certificate in prescribed format as per Clause 3 of the
Notice Inviting Tender (NIT). Learned counsel for the petitioner
submits that the petitioner duly submitted Performance Statement in
terms of the proforma given in Clause 3 of the NIT. By placing such
Performance Statement dated June 7, 2019 (annexed at page 86 of the
writ petition), learned counsel contends that all particulars, as
required by the NIT, were furnished by the petitioner. Despite having
done so, the tendering authorities rejected the petitioner's bid for non-
submission of Performance Statement in prescribed format.
2. Learned counsel for the petitioner further submits that the bid of the
private respondent was accepted unlawfully, although the same was
in contravention of the conditions stipulated in the NIT.
3. Clause 18.3 of the NIT provides that if any document required to be
submitted for e-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.
4. Clause 13.1 of the NIT provides that the bidder shall provide an
undertaking that the proprietor/promoter/director of the firm, its
employee, partner or representative are not convicted by a court of law
for offence involving moral turpitude in relation to business dealings
such as bribery, corruption, fraud, etc. The undertaking should also
contain the averment that the firm does not employ a government
servant, who has been dismissed or removed on account of corruption
and that the firm has not been debarred or blacklisted by any
Government Ministry/Department/Local Government/PSU, etc., in
the last 2 years from scheduled date of opening of the e-tender.
5. The undertaking submitted by the private respondent, annexed at
page 93 of the writ petition (Annexure P-4), was undated and, as such,
did not qualify for being considered within the contemplation of
Clause 13.1, it is submitted.
6. That apart, learned counsel for the petitioner argues, the Performance
Statement of the private respondent was not accompanied by a
notarised certification authenticating the correctness of the
information furnished. Such requirement appears at the end of Clause
3.1 of the NIT. Comparing the mere notarial stamp and seal appearing
on the Performance Statement of the private respondent (at page 92 of
the writ petition) with the full-fledged notarial certificate furnished by
the petitioner (annexed at page 85 of the writ petition), learned
counsel argues that the documents of the private respondent were
deficient on such score as well, thus disqualifying the bid of the
private respondent.
7. Learned counsel appearing for the respondent-authorities submits
that the undertaking furnished by the private respondent sufficiently
complied with the provisions of the NIT, since the last sentence of
such undertaking (although undated) mentioned that the firm had not
been debarred or blacklisted by any Government
Ministry/Department/Local Government/PSU, etc., in the last two
years from scheduled date of opening of the tender.
8. Learned counsel submits that the notarial stamp affixed to the
Performance Statement of the private respondent, although not a
'notarial certificate' in the strictest sense, fulfilled the criterion
stipulated in the NIT in that regard.
9. Learned counsel for the tendering authorities further contends that
the Performance Statement of the petitioner was insufficient. Pointing
out in particular to the details furnished under the first and third
columns thereof, learned counsel submits that the full address of the
purchaser in respect of the previous work done by the petitioner was
not furnished. Merely "C.M.O.H Burdwan" was mentioned under the
said column. In comparison, the Performance Statement of the private
respondent clearly mentioned the particular Hospital and the order
number and date of the previous work in details. As far as the
description and quantity of the past work was concerned, the
petitioner merely mentioned various years and the number of beds,
but did not mention any other detail thereof. In contrast, the private
respondent, in its Performance Statement, had clearly indicated the
number of beds and that the supply pertained to cooked diet in the
relevant column.
10. Referring to Item C under the document check list chart provided in
Clause 12.3 of the NIT, learned counsel for the respondent-authorities
submits that the same was a mandatory requirement. Since the
credential documents required under the said check list were to be
read into the eligibility criterion, as stipulated in Clause 3 of the NIT,
non-furnishing of the same by the petitioner exposed the petitioner's
bid to rejection. As per the last paragraph of Clause 3.1, documentary
evidence was to be furnished in support of the Performance
Statement. Clause 3.1, sub-clauses (a) and (b) specifically provide that
the intending tenderer should produce credentials as stipulated
therein to be eligible and to qualify for the bid. Such clause, implicitly,
mandates the production of documents in support of the bidders'
Performance Statement relating to past work done. However, the
petitioner was deficient on such score and his bid was, thus, rightly
rejected.
11. Learned counsel for the private respondent, apart from adopting the
arguments of the respondent-authorities, argues that the writ petition
was filed about six months after issuance of the work order in favour
of the private respondent. In the absence of appropriate explanation
for such inordinate delay, the writ petition ought to be dismissed on
such score alone.
12. It is further submitted by the private respondent that Clause 3.1, sub-
clauses (a) and (b) of the NIT contemplate 'completed work' during
three years prior to the date of issuance of the e-tender notice.
However, as borne out by the Performance Statement of the petitioner,
no completed work of such description was cited by the petitioner.
Thus, being in contravention of Clause 3.1 of the NIT, the petitioner's
bid was rightly rejected.
13. In reply to the arguments of the respondent-authorities, learned
counsel for the petitioner submits that sufficient details were
furnished in the Performance Statement of the petitioner. Counsel
submits that the term "C.M.O.H. Burdwan" sufficiently covered the
requirement of the proforma for Performance Statement provided in
Clause 3.1 of the NIT. C.M.O.H., Burdwan was the authority placing
the order and, as such, the individual Hospitals to which food was
supplied by the petitioner were immaterial. The mention of the
concerned C.M.O.H.s was sufficient to satisfy the NIT conditions.
Since the number of beds for which food was supplied in the
corresponding financial years was mentioned in the relevant column
of the petitioner's Performance Statement, there was no deficiency on
that score either.
14. In reply to the contentions of the private respondent, learned counsel
for the petitioner argues that there was delay in online uploading of
the necessary details pertaining to the tender. This, coupled with the
intervening pandemic situation, caused the delay in filing the writ
petition.
15. It is further argued that the requirement stipulated in Clause 3.1,
sub-clauses (a) and (b), of the NIT was not a part of the Performance
Statement mentioned in the NIT. Thus, the work experience indicated
in the Performance Statement of the petitioner, which covered several
periods and pertained to several C.M.O.Hs, was sufficient compliance
of the NIT.
16. Considering the submissions of both sides, a conjoint reading of the
clauses of the NIT does not rule out the view that the "documentary
evidence", as sought in the last paragraph of Clause 3.1, also
encompassed the eligibility criteria stipulated in the sub-clauses (a)
and (b) of Clause 3.1 of the NIT. In the absence of such specific
documents being produced by the petitioner, it was plausible for the
tendering authorities to reject the petitioner's bid. The credentials
stipulated in the said sub-clauses, being mandatory eligibility criteria,
can very well be read into the credentials to be disclosed in the
Performance Statement.
17. It is arguable whether the details furnished by the petitioner,
particularly under the first and third columns of his Performance
Statement, were sufficient. In contrast to the detailed Performance
Statement of the private respondent, the petitioner merely mentioned
the names of the respective authorities. Even if it is assumed for the
sake of argument that detailed address need not have been furnished,
the particulars of the hospitals in which the petitioner actually
provided food might have been a valid consideration for deciding the
petitioner's eligibility vis-à-vis the other bidders. That apart, the
petitioner did not mention whether the diet provided by the petitioner
in the past occasions was cooked or not.
18. In contrast, the Performance Statement of the private respondent was
much more specific, although it was comprised of lesser number of
works done. What is to be seen is whether the eligibility criteria
stipulated in the NIT were fulfilled and not the volume of past
experience of the bidder.
19. As regards the undertaking filed by the private respondent, the same
clearly stipulated that the firm had not been debarred or blacklisted
by any Government Ministry/Department/Local Government/PSU,
etc., in the last two years from the scheduled date of opening of the
tender. Such undertaking was precisely in consonance with the
requirement of the NIT (last paragraph of Clause 3.1 thereof) to the
letter. Thus, the bid of the private respondent could not be rejected on
the score of deficiency in that regard.
20. The last paragraph of Clause 3.1 required "notarised certification
authenticating the correctness of the information furnished". It did
not stipulate that a formal 'notarial certificate' had to be furnished in
the form maintained by the Notaries functioning under the
Government of West Bengal. Even assuming that the private
respondent deviated from the usual form used by Notaries in West
Bengal, the stamp and seal of the concerned Notary was imprinted on
the Performance Statement of the private respondent. There was no
bar in the tendering authorities considering such notarial certification
to be due compliance with the authentication of correctness of
information required under the NIT.
21. The writ court has to examine whether the tendering authority had
the discretion which was exercised by it in choosing a successful
bidder over others. It is well-settled that the court cannot impose its
own view on the tendering authority. The choice made by the
respondent-authorities in the present case was plausible and valid
and, as such, ought not to be interfered with.
22. That apart, the long delay of six months in preferring the writ petition
even after the issuance of work order, pursuant to which the
successful bidder has already commenced work, is itself an indicator
of the petitioner having approached court with unclean hands. There
is not a single sentence in the writ petition which pleads any
appropriate, let alone sufficient, cause for the delay. Hence, whatever
submission is made from the Bar in that regard cannot be accepted as
justification for the delay, in the absence of any specific pleading in
that regard. Thus, in any event, the writ petitioner ought not to be
granted the reliefs claimed in the writ petition at this belated juncture.
23. Accordingly, WPA No. 1724 of 2020 is dismissed on contest without
any order as to costs.
24. IA No: CAN 1 of 2020 is also disposed of accordingly.
25. Urgent certified website copies of the order shall be provided to the
parties upon due compliance of all the requisite formalities.
( Sabyasachi Bhattacharyya, J. )
