Gauhati High Court
WP(C)/3006/2021 on 8 October, 2021
Page No.# 1/20
GAHC010088872021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C) 3006/2021
A1 FACILITY AND PROPERTY MANAGERS PVT. LTD.
HAVING ITS REGISTERED OFFICE AT PLOT NO. AG-3,
3RD FLOOR,CAMAINDUSTRIAL ESTATE, NEAR HUB, GOREGAON (EAST),
MUMBAI,PIN-400063, BEING REPRESENTED BY ITS AUTHORISED
SIGNATORY SRIPONNURU SRINIVASA RAO, AGED 36 YEARS
...............Petitioner
-Versus-
1. THE STATE OF ASSAM
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT OF
ASSAM, HEALTH AND FAMILY WELFARE DEPARTMENT, DISPUR,
GUWAHATI-781006
2. THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HEALTH AND FAMILY WELFARE (B) DEPTT.
DISPUR, GUWAHATI-781006
3. THE DIRECTOR OF MEDICAL EDUCATION, ASSAM
SIXMILE, KHANAPARA, GUWAHATI, ASSAM
PIN-781022
4. THE TECHNICAL COMMITTEE
REPRESENTED BY THE DIRECTOR OF MEDICAL EDUCATION,
ASSAM, SIXMILE, KHANAPARA, GUWAHATI, ASSAM
PIN-781022
5. M/S. FABER SINDOORI MANAGEMENT SERVICES PVT. LTD.
HAVING ITS REGISTERED OFFICE AT NO. 77, 4TH FLOOR,
POTTIPOTI PLAZA, NUNGAMBAKKM HIGH ROAD, TAMIL NADU,
INDIA, PIN-600034
Page No.# 2/20
6. M/S ANUPAM KAKATI
C/O- ANUPAM KAKATI
R/O- PNGB ROAD, SHANTIPUR HILLSIDE,
GUWAHATI, KAMRUP (M), ASSAM,
PIN- 781009
...................RESPONDENTS
Advocates :
For the petitioner : Mr. M.K. Choudhury, Senior Advocate
Mr. D.R. Gogoi, Advocate
For the Respondent nos. 1 to 4 : Mr. D.P. Borah, learned Standing Counsel,
Health & Family Welfare Department
For the Respondent no. 6 : Mr. R. Dubey, Advocate
Date of Hearing : 30.09.2021
Date of Judgment & Order : 07.10.2021
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER
This writ petition under Article 226 of the Constitution of India has arisen out of an
Invitation for E-Bid [IFB] ['the NIT', for short] dated 21.01.2021 through National Competitive
Bidding issued by the respondent no. 3 i.e. the Director of Medical Education, Assam [the
DME, Assam].
2. By this writ petition, the petitioner, a company incorporated under the provisions of the
Companies Act, 1956, has assailed a report dated 26.04.2021 submitted by the Technical
Committee in respect of the NIT dated 21.01.2021 issued by the respondent no. 3. By the
said report dated 26.04.2021, the Technical Committee did not accept the technical bid of the
petitioner submitted in response to the NIT. The petitioner has preferred this writ petition
seeking inter alia a direction to the respondent authorities to accept its technical bid and to
declare the petitioner qualified in the technical bid evaluation stage with the further direction
to open the financial bid submitted by the petitioner along with the other financial bids
submitted in relation to the NIT.
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3. The background facts leading to the institution of the instant writ petition may be
exposited first in order to appreciate the issues sought to be raised by the petitioner.
4. The respondent no. 3 as the tendering authority published the NIT dated 21.01.2021
inviting Re-e-tender bids through e-procurement system i.e. through website,
www.assamtenders.gov.in from intending and experienced agencies for selection of suitable
Agency[s] for providing 'Cleaning & Sanitation Services to different Medical College
Hospital[s] under the DME, Assam, under the Health & F.W. Department, Government of
Assam' ['the Contract Work', for short] on outsourcing basis.
4.1 As per the original NIT, the period of downloading of e-tender was from 21.01.2021 to
10.02.2021. A pre-bid meeting was scheduled at 11-00 a.m. on 28.01.2021 in the office of
the respondent no. 3 i.e. the tendering authority. The bids were to be submitted within the
period from 28.01.2021 to 10.02.2021. By a Corrigendum dated 09.02.2021, the last date of
submission of bids was extended up to 20.02.2021. By another Corrigendum dated
20.02.2021, the last date of submission of bids was extended up to 26.02.2021. On
23.02.2021, another Corrigendum was published whereby Point no. 4 of Part-IV : Eligibility
Criteria of Qualification and the Supplementary BOQ were modified for larger participation of
bidders.
4.2 In response to the NIT, 8 [eight] nos. of bidders participated in the bidding process by
submitting their bids. After the time period for submission of bids was over, the technical bids
of all the participating bidders were opened and evaluated. A Technical Committee
constituted for the purpose of evaluation of technical bids, evaluated the technical bids of all
the 8 [eight] participating bidders in reference to the eligibility criteria stipulated in Part-IV :
Eligibility Criteria of Qualification of the NIT. A comparative statement was prepared by the
Technical Committee based on the criteria stipulated in the said eligibility criteria for
qualification. Upon such evaluation, the Technical Committee had declared 3 [three] nos. of
bidders as qualified for technical evaluation on weightage matrix, meaning thereby, the bids
of the remaining 5 [five] nos. of bidders were found disqualified in reference to Part-IV :
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Eligibility Criteria of Qualification of the NIT. As per the minutes of the meeting of the
Technical Committee, held on 26.04.2021, the Technical Committee had found 3 [three] nos.
of bidders as qualified based on eligibility criteria. Thereafter, the bids of those 3 [three]
qualified bidders were examined for technical evaluation on weightage matrix and after
awarding technical scores, the Technical Committee found that only 2 [two] bidders had got
more than 50 marks, which was the minimum score for the technical bid for qualification as
per the Technical Criteria and Weightage Matrix stipulated in the NIT.
4.3 In the comparative statement prepared by the Technical Committee, it had remarked
that the petitioner did not have an office in Assam. By remarking so, the Technical Committee
had recorded in the relevant column in the comparative statement that the petitioner had
been technically disqualified.
5. Aggrieved by the said decision of the Technical Committee, the petitioner has
approached this Court by this writ petition seeking, inter alia, the directions, mentioned
above.
6. Heard Mr. M.K. Choudhury, learned Senior Counsel assisted by Mr. D.R. Gogoi, learned
counsel for the petitioner. Also heard Mr. D.P. Borah, learned Standing Counsel, Health &
Family Welfare Department for the respondent nos. 1 - 4 and Mr. R. Dubey, learned counsel
for the respondent no. 6. The name of the respondent no. 5 was deleted from the array of
respondents at the instance of the petitioner at an earlier date.
7. Mr. M.K. Choudhury, learned Senior Counsel for the petitioner has submitted that the
action on the part of the Technical Committee to declare the technical bid of the petitioner as
non-compliant at the technical bid evaluation stage is arbitrary, discriminatory and unjustified.
It was only on the ground that the petitioner did not have an office in Assam the technical bid
of the petitioner was not taken up for consideration by the Technical Committee. It is his
contention that the petitioner had all the other eligibility criteria for qualification as per the
terms and conditions laid down in the NIT.
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7.1 He has contended that the qualification criterion of having an office in the State of
Assam cannot be termed as an essential condition for qualification. It is his submission that
the purpose of having an office in the State of Assam has been mentioned in the NIT only for
getting on assurance that in case of any urgent need to contact the service provider agency
the concerned authority can contact the agency immediately so that the necessity or the
problem, if any, can be addressed forthwith. The petitioner had submitted an undertaking
along with its bid whereby it had undertaken to establish an office in Assam within 15
[fifteen] days from the date of issue of award of the Contract Work, if the Contract Work was
awarded to it. Considering the track record of the petitioner in the field, the said undertaking
given by the petitioner was as good as having an office in the State, he submits.
7.2 It is his further contention that a discriminatory treatment had been meted out to the
petitioner on the sole ground of not having an office in the State whereas the same Technical
Committee had admitted the technical bid of another bidder viz. M/s Faber Sindoori
Management Services Private Limited ['M/s Faber Sindoori', for short] for consideration at the
technical bid evaluation stage despite failure on the part of the said bidder to satisfy the Point
no. 5 of Part-IV : Eligibility Criteria of Qualification of the NIT fully. According to him, the
petitioner's right to equality and fair treatment has been violated in the matter of evaluation
of its bid and as such, the bidding process is in violation of Article 14 of the Constitution of
India. To buttress his such submission, he has relied on the observation made by the Hon'ble
Supreme Court of India in paragraph-66 of the decision in B.S.N. Joshi & Sons Ltd. vs. Nair
Coal Services Ltd. and others, reported in [2006] 11 SCC 548 wherein, it has been
summarized that if a deviation is made in relation to all the parties in regard to any of the
conditions in the NIT, ordinarily a power of relaxation should be held to be existing.
7.3 To urge that Point no. 5 of the Eligibility Criteria for Qualification of the NIT is a
directory one, he has referred to paragraph-6 in the decision of the Hon'ble Supreme Court of
India in Poddar Steel Corporation vs. Ganesh Engineering Works and others, reported in
[1991] 3 SCC 273. In Poddar Steel Corporation [supra], it has been held that the
requirements in a tender notice can be classified into two categories - those which lay down
the essential conditions of eligibility and the others which are merely ancillary or subsidiary
Page No.# 6/20
with the main object to be achieved by the condition. In the first case the authority issuing
the tender may be required to enforce them rigidly but in the other cases, it must be open to
the authority to deviate from and not to insist upon strict literal compliance of the condition in
appropriate cases. By placing reliance on the observation made in paragraph-15 in the
decision of the Hon'ble Supreme Court of India in Civil Appeal no. 1049 of 2019 [Vidartha
Irrigation Development Corporation vs. M/s Anoj Kumar Garwala], decided on 23.01.2019, he
has submitted that if an essential tender condition which had to be strictly complied with like
Point no. 5, was not so complied with, the tendering authority could not have condoned the
lacunae in the bid of M/s Faber Sindoori.
7.4 A further submission, on the basis of the affidavit-in-reply, is made to the effect that a
criminal case has been registered against the respondent no. 6 vide Dibrugarh Police Station
Case no. 607/2021 and the proprietor of respondent no. 6 had to approach this Court seeking
pre-arrest bail, which was allowed by an order dated 11.06.2021 passed in a bail application,
AB no. 1343/2021. It has, thus, been contended that the credibility and past record of the
respondent no. 6 is not clean so as to be awarded with the Contract Work in question.
8. Responding to the above submissions made on behalf of the petitioner, Mr. Borah,
learned counsel for the State respondents has submitted that the necessary factual
foundation has not been laid in the writ petition to allege deficiency in the bid of M/s Faber
Sindoori. Referring the statements made in the writ petition, the affidavit-in-opposition filed
on behalf of the respondent no. 3 and other pleadings he has contended that it is not the
pleaded case of the petitioner that the petitioner had been treated in a discriminatory manner
vis-à-vis the treatment given to M/s Faber Sindoori. Though initially, the petitioner did not
make M/s Faber Sindoori a party-respondent in the writ petition, the petitioner had, later on,
sought for impleadment of the two bidders including M/s Faber Sindoori, who had been
declared qualified at the technical bid evaluation stage and accordingly, those two bidders
were impleaded as party-respondents. But thereafter again, the name of M/s Faber Sindoori
as party-respondent was struck-off at the request of the petitioner. He has, thus, contended
that in the absence of any pleading made in the writ petition as regards alleged deficiency in
the bid of M/s Faber Sindoori there was no opportunity made available to the tendering
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authority to respond to such submission made on behalf of the petitioner at the stage of
hearing. He has further contended that in the absence of M/s Faber Sindoori as a party-
respondent in the writ petition it is not open for the petitioner to raise any plea as regards
any alleged deficiency in the bid of M/s Faber Sindoori, by going beyond the pleadings. To
support his submission, he has relied also in the decision in B.S.N. Joshi & Sons Ltd. [supra].
8.1 It is his further submission that the petitioner was well aware of the eligibility criteria
for qualification laid down in the NIT. At no point of time till submission of the bid the
petitioner had objected to the eligibility criterion with regard to having an office in Assam. It
was open for the petitioner to raise an objection or to seek clarification with regard to the
said eligibility criterion after obtaining the bid document till the last date of submission of bid
and, more particularly, at the pre-bid meeting. Had such a plea been raised the tendering
authority could have considered the same. Having not been raised any objection to the said
eligibility criterion prior to submission of its bid, the petitioner cannot raise such a ground by
filing this writ petition, that too, when the stage of technical bid evaluation was over, he
submits.
8.2 He has further submitted that notwithstanding the above, the contention regarding M/s
Faber Sindoori not having an office in Assam is bereft of merit because the comparative
statement had clearly indicated that M/s Faber Sindoori had an office in Assam. The only
remark that was made in the comparative statement in respect of the technical bid of M/s
Faber Sindoori was to the effect that there was no contact number/fax number. It would only
mean that the bidder had to provide either a contact number or a fax number of the bidder's
office in Assam. The essential condition in the NIT was that the bidder must have an office in
Assam whereas providing a contact number or a fax number was only ancillary to the
essential condition. He has further submitted that none of the decisions, referred above,
relied on behalf of the petitioner supports the case of the petitioner. He has, thus, contended
that the ground raised by the petitioner regarding discriminatory treatment is wholly
misconceived and the writ petition being devoid of any merit, is liable to be dismissed.
9. Mr. Dubey, learned counsel for the respondent no. 6 has submitted that the petitioner
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in the writ petition, has not alleged about any deficiency in the bid of the respondent no. 6. It
is only in the affidavit-in-reply, filed at a much later point of time on 12.07.2021, the
petitioner has raised a specious plea about implication of the respondent no. 6 in a criminal
case. In the national competitive bidding process initiated by the NIT dated 21.01.2021, the
respondent no. 6 had emerged as the successful bidder as it had been declared as L-1 bidder.
He has pointed out that the present writ petition was filed on 27.05.2021. The financial bids
were opened on 25.05.2021 wherein the respondent no. 6 had been declared as L-1 bidder.
Pursuant thereto, 3 [three] nos. of Medical Colleges have already issued work orders in the
month of June, 2021 in favour of the respondent no. 6 and the respondent no. 6 has already
started executing the Contract Work in question. In such view of the matter when the bidding
process had already attained finality, no interference is called for at this stage.
9.1 He has adopted the submissions made on behalf of the State respondents on the other
aspects like non-impleadment of M/s Faber Sindoori as a party-respondent and absence of
foundational facts in the writ petition, etc. to raise any plea of discrimination or unfair
treatment at the time of hearing. Like Mr. Borah, he has submitted that none of the decisions
relied on behalf of the petitioner supports the case of the petitioner. It is the tendering
authority which has the authority to decide about essentiality or otherwise of a condition set
forth in the bid document. It is not open for a bidder to insist that a particular condition in the
bid document has to be treated as a directory one. In support of his such submission, he has
relied in the decision of the Hon'ble Supreme Court of India in Central Coalfields Limited and
another vs. SLL-SML [Joint Venture Consortium and others], reported in [2016] 8 SCC 622,
wherein the decision in Poddar Steel Corporation [supra] has also been discussed.
9.2 With regard to the pending criminal proceeding, as has been alleged by the petitioner,
Mr. Dubey has referred to the order dated 06.05.2021 and the order dated 11.06.2021, both
passed in the bail application, AB no. 1343/2021, which are found annexed to the affidavit-in-
reply. He has pointed out that in the order dated 11.06.2021 [supra], whereby, the
respondent no. 6 was granted the benefit of pre-arrest bail the Court had expressed
satisfaction upon perusal of the materials in the case diary that the allegations were
unfounded.
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10. I have considered the rival submissions advanced by the learned counsel for the
parties and also perused the materials brought on record. I have also considered the
decisions cited by the learned counsel for the parties in support of their respective
contentions.
11. From the NIT dated 21.01.2021, it is noticed that bids were invited for providing
Cleaning & Sanitation Services to different Medical College Hospital[s] under the DME, Assam,
Health & F.W. Department, Government of Assam [the Contract Work] and such services are
to be provided to 8 [eight] nos. of Medical College Hospitals, named therein, under the
Health & Family Welfare Department, Government of Assam on outsourcing basis. The scope
of work/service provider's responsibilities for housekeeping includes providing round the clock
housekeeping services at the Hospital areas [High risk area + Moderate risk area + Low risk
area] and Non-Hospital areas [Built-up area only, includes Medical College buildings, Teaching
Schools, Hostel buildings, etc.].
12. The tender process was two-bid system. Part-IV of the NIT had set out the eligibility
criteria for qualification and it was stipulated that the bidders who met the eligibility criteria
only would be considered for price bid opening. Part-V had provided for the procedure of bid
evaluation. It had been prescribed that the bidder should fulfill all the eligibility criteria for
qualification and only such bidders who fulfilled all the eligibility criteria would be technically
shortlisted for opening of the price bids. The technical evaluation shall be done on weightage
basis with 70% to technical evaluation and 30% to financial evaluation. It had further
mentioned that the Technical Bid Evaluation Committee constituted by the tendering authority
shall evaluate the technical proposals on the basis of their responsiveness to the tender
terms, applying the evaluation criteria, sub-criteria and point system specified. During the
technical evaluation stage, each bidder shall be assigned different marks out of a total 100
marks, as per the criteria specified therein.
13. In Part-IV : Eligibility Criteria for Qualification, a total of 8 [eight] nos. of criteria were
mentioned. It is Point no. 5, out of the 8 [eight] nos. of eligibility criteria, in respect of which
Page No.# 10/20
the technical bid of the petitioner was declared disqualified by the Technical Bid Evaluation
Committee on 26.04.2021. The said Point no. 5 reads as under :-
"5. The bidder should have an office in Assam. The details of the
office with address, telephone number/fax number should be provided."
14. The learned Senior counsel for the petitioner has submitted that the case of the
petitioner was considered in a discriminatory manner in that while the technical bid of the
petitioner was disqualified for not satisfying Point no. 5 of the eligibility criteria for
qualification of the NIT the technical bid of M/s Faber Sindoori was held to be qualified
despite it not fulfilling the same Point no. 5. On the other hand, the learned Standing
Counsel, Health & Family Welfare Department and the learned counsel for the respondent no.
6 have contended that it is not open for the petitioner to raise such a plea at the time of
hearing since the petitioner has not raised such a plea in the writ petition by laying the
necessary factual foundation in its pleadings. In view of such rival contentions it has become
necessary to have a look at the case of the petitioner pleaded in the writ petition.
14.1 In the writ petition, after mentioning the necessary details about the bidding process
initiated by the NIT in question it has been averred that the petitioner company is in the
same field of providing services of cleaning and sanitation for the past several years in
various parts of the country and after taking a decision to participate in the bidding process
initiated by the NIT dated 21.01.2021, the petitioner submitted its technical bid along with all
documents as per requirements of the NIT. The petitioner has contended that it is very
unlikely that all the companies registered under the Companies Act would have offices in all
parts of India. It is an usual practice that the companies all over the country give an
undertaking that it would establish its office within a very short period in that particular State
who issues tender inviting bids for any particular service. The petitioner company too not
having any office within the State of Assam, gave an undertaking dated 09.02.2921 that it
would establish its office in Assam within a period of 15 [fifteen] days from the date of
award, if the Contract Work was awarded to the petitioner. The Technical Committee in its
meeting, held on 26.04.2021, examined the technical bids of the participating bidders and the
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Technical Committee had, to the shock and surprise of the petitioner, submitted its report
qualifying only two bidders viz. (i) M/s Faber Sindoori; and (ii) M/s Anupam Kakati - the
respondent no. 6, for the next stage of financial bid evaluation. The petitioner was shocked to
find that the only ground on which the petitioner was made disqualified was that it did not
have an office in Assam. The undertaking dated 09.02.2021 was totally ignored and not
considered by the Technical Committee. Aggrieved thereby, the petitioner submitted a
representation dated 17.05.2021 before the tendering authority with the request to re-visit
the decision of disqualifying the petitioner's technical bid and to consider the undertaking to
set up a local office after award of the Contract Work.
14.2 The writ petition was filed on 27.05.2021. At the time of filing the writ petition, the
petitioner did not implead the two bidders whose technical bids were declared qualified, as
party-respondents in the writ petition. The writ petition was moved on 08.06.2021. Prior to
08.06.2021, the petitioner had filed an additional affidavit on 07.06.2021 stating that the fact
of the petitioner's disqualification came to its knowledge on 15.05.2021 when the information
was uploaded in the website. Having learnt about its disqualification, the petitioner submitted
the representation on 17.05.2021. As two bidders viz. (i) M/s Faber Sindoori; and (ii) M/s
Anupam Kakati were declared qualified at the technical bid evaluation stage, thereby, making
them eligible for the next stage the petitioner sought impleadment of the said two bidders, by
the additional affidavit, as proforma respondent no. 5 and as proforma respondent no. 6
respectively. When the writ petition was moved on 08.06.2021, this Court allowed
impleadment of (i) M/s Faber Sindoori; and (ii) M/s Anupam Kakati as proforma respondent
no. 5 and as proforma respondent no. 6 respectively. On 08.06.2021, the Court issued notices
to the respondents, making the notice returnable on 24.06.2021 and directed the petitioner
to take steps for service of notice only upon the newly impleaded proforma respondent no. 5,
M/s Faber Sindoori, by modes mentioned in the order, as the proforma respondent no. 6, M/s
Anupam Kakati was found represented by its learned engaged counsel on that day. From the
case record, it transpires that the notice to the respondent no. 5 was despatched by
registered post with A/D on 18.06.2021. The notice was also made ready for the respondent
no. 5 for dasti service on 18.06.2021. The case record has further disclosed that the learned
counsel for the petitioner did not turn up to collect the notice for dasti service. When the
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matter was laid before the Lawazima Court on 26.07.2021, the learned counsel for the
petitioner submitted for striking-off the name of the respondent no. 5 from the array of
respondents in the writ petition. When the writ petition was listed before the Court on
27.07.2021, a prayer was made by the learned counsel for the petitioner to delete the name
of respondent no. 5 from the array of respondents. In view of the submission so made by the
learned counsel for the petitioner, the name of the respondent no. 5 was deleted by order
dated 27.07.2021 from the array of respondents at the risk of the petitioner.
14.3 After filing of the affidavit-in-opposition by the respondent no. 3 i.e. the tendering
authority on 23.06.2021, an affidavit-in-reply was filed on behalf of the petitioner on
12.07.2021 in response to the said affidavit-in-opposition.
14.4 On perusal of the pleadings in the writ petition and in the affidavit-in-reply, it is found
that except impleading M/s Faber Sindoori as respondent no. 5, the petitioner has not raised
any contention with regard to the technical bid of M/s Faber Sindoori in any manner
whatsoever. As could be noticed from preceding para 14.2, the petitioner itself had made a
prayer to strike-off the name of the respondent no. 5 from the array of respondents in the
writ petition and the said prayer was allowed at the risk of the petitioner. It is apt to say that
no party should be permitted to travel beyond its pleadings to make out a new case. A party
should plead all necessary and material facts in support of the case sought to the set up by it.
Pleadings are considered to be the foundation of litigation. The requisite foundation should be
laid in order to assert a right to relief. Appropriate pleadings and laying the requisite factual
foundation are necessary so as to enable the Court to reach a just decision on the issue
raised by the concerned party. A decision cannot be based on grounds outside the pleadings
of the parties, unless it is a pure question of law. A question of fact for which no factual
foundation has been laid by a party before the Court, is not allowed to be agitated at the time
of hearing. Any allegation raised against another party must also be raised in presence of the
said party, more particularly, when the party is alleging discriminatory treatment and denial of
a level-playing field vis-à-vis such other party. The bidders participating in a tender process
have no other right except the right to equality and fair treatment in the matter of evaluation
of the bids offered by the bidders in response to the notice inviting bids. It has been held in
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para 37 in B.S.N. Joshi & Sons Ltd. [supra] that a plea not raised in the writ petition, cannot
be allowed to be urged during the hearing before the High Court. The petitioner herein has
sought to raise the plea of discriminatory treatment and denial of level-playing field by
seeking to bring in the case of M/s Faber Sindoori and in that connection, the petitioner has
contended violation of its fundamental right on the touchstone of Article 14 of the
Constitution of India. As has been noted above, there is not a single whisper in the writ
petition to the effect that the technical bid of M/s Faber Sindoori was non-compliant. The
name of M/s Faber Sindoori had been deleted from the array of respondents at the behest of
the petitioner only and also at the risk of the petitioner. One cannot be permitted to allege
anything against another person/entity behind the back of such person/entity. Had such
person/entity been a party in the writ petition the party would have been in a position to
admit or deny any kind of allegation made against it. Had any factual foundation been laid
regarding non-compliant nature of M/s Faber Sindoori's technical bid, it would also have been
obligatory on the part of the tendering authority to traverse the same by offering justification
behind acceptance of M/s Sindoori's technical bid despite its alleged non-compliance. It
would, then, have been possible for this Court to test such plea. Considering all the aspects
above, this Court is of the clear view that it is not open for the petitioner to raise an issue like
meting out discriminatory treatment or denial of level-playing field to it vis-à-vis M/s Faber
Sindoori with regard to consideration given to their technical bids by the Technical Committee
on 26.04.2021.
15. The aforesaid plea as regards non-compliant nature of the technical bid of M/s Faber
Sindoori could have been raised by the petitioner at the time of opening of the technical bids
itself. It was specifically mentioned in the NIT dated 21.01.2021 that the technical bids of all
participating bidders would be opened on due date so that the participating bidders can view
all the bids once those were opened. There would be a gap of minimum one week time
before evaluation of the technical bids and within that period any complaint against any
technical bid was to be submitted on or before the date of technical bid evaluation by the
Technical Committee. It was made clear that after the said period no further complaint would
be entertained in the tender process. The petitioner is silent on the aspect as to whether it
had detected the alleged deficiency in respect of the technical bid of M/s Faber Sindoori at
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the time of opening of the technical bids. A participating bidder was allowed to view the
technical bids of all the other participating bidders at the time of opening of the technical
bids. The petitioner is also silent as to whether any complaint was lodged by it as regards the
alleged deficiency in respect of the technical bid of M/s Faber Sindoori within the stipulated
time period. It is pertinent to state that in the comparative statement prepared after
evaluation of the technical bids of all the bidders, the Technical Bid Evaluation Committee had
remarked in respect of the technical bid of M/s Faber Sindoori that M/s Faber Sindoori had
provided the details of its office in Assam but no contact number/fax number was provided.
The said remark is relatable to Point no. 5 of Part-IV of the NIT. In such view of the matter,
raising such plea regarding alleged deficiency in the technical bid of M/s Faber Sindoori
without such plea being raised in the writ petition, at the time of hearing of the writ petition
is clearly an afterthought on the part of the petitioner and such a plea in absence of factual
foundation, does not deserve a consideration. The case of the petitioner has, thus, to be
examined, sans such plea.
16. It has been specifically asserted by the tendering authority in its affidavit-in-opposition
that the pre-bid meeting was held on 28.01.2021. It has also been asserted that in the said
pre-bid meeting, no bidder including the petitioner, had requested to make relaxation on any
of the points specified in Part-IV : Eligibility Criteria for Qualification. The petitioner had
submitted one representation dated 13.02.2021, annexed as Annexure-1 to the affidavit-in-
opposition, after the pre-bid meeting seeking some clarification on certain other matters, but
not in respect of the condition in the NIT of having an office in Assam. On receipt of the said
representation, the tendering authority stated to have addressed the same and changes were
considered and uploaded. It has further been asserted that the petitioner did not make any
suggestion nor it had asked for any modification in respect of any of the eligibility criteria
contained in Part-IV of the NIT. In view of non-receipt of any query from any of the bidders
including the petitioner, the tender process continued and concluded with the original clause
regarding having an office in Assam as an essential condition for the Contract Work. The said
assertion of the tendering authority has not been specifically traversed by the petitioner in its
affidavit-in-reply. In its affidavit-in-reply, the petitioner reiterated its stand that an undertaking
to establish an office in the State within a short period after award of the Contract Work
Page No.# 15/20
would suffice the same being a set practice in tender process of like nature and the question
of requesting for relaxation did not arise as it was implied that such an undertaking was as
good as having an office.
16.1 From the aforesaid stand of the petitioner taken in its pleadings it is clear that in view
of the petitioner an undertaking to establish an office in Assam after award of the Contract
Work in its favour is equivalent to having an office in Assam already, notwithstanding the
clear term contained in the NIT. It is settled that the terms of the NIT are not open to judicial
scrutiny, the same being in the realm of contract. It is for the tendering authority to set the
terms of the tender. The Court while exercising the power of judicial review has to exercise
restraint in interfering with the terms of the NIT unless it is shown to be arbitrary or
discriminatory. While exercising the power of judicial review of the terms of the NIT the Court
is not supposed to say that the purpose sought to be achieved by the tendering authority by
incorporating a particular term in the NIT could also be achieved with a different term. It
cannot strike down a term in the NIT prescribed by the tendering authority/Government only
because in its estimation, some other term should have been incorporated. One of the
important requirements when tenders are invited is that the terms and conditions must be
indicated with certainty and there should not be any vagueness or subjectivity. As long as the
terms and conditions in the NIT are clear and specific and are not capable of being
understood in a different manner, the Court in exercising power of judicial review should not
substitute its view with that of the tendering authority/Government who has set the terms
and conditions as the author of the document by taking into account all the relevant factors
including its past experience in similar nature of contract works. Thus, it is not open for the
petitioner to insist that its interpretation to the effect that an undertaking to establish an
office in Assam after the Contract Work is awarded to it is synonymous with the fact of having
an office in Assam already and this Court negates the said contention of the petitioner.
17. At this stage, it may be apposite to elucidate the background facts in order to
appreciate the context in relation which the observations in paragraph 15 in Vidartha
Irrigation Development Corporation [supra] has been made. A tender was called by the
Vidartha Irrigation Development Corporation on 06.01.2018 for balance earthwork to be done
Page No.# 16/20
in a canal. There was a pre-tender conference. The tenderers were cautioned that the
tenders containing any deviation from the contractual terms and conditions, specifications or
other requirements and conditional tender would be rejected as non-responsive. The bidders
were to submit performance security in case their offers were below the cost put to tender.
Such performance security was to be submitted in the form of demand draft or FDR or BG. In
case of FDR/BG, it shall be valid up to one month after the defect liability period whereas the
validity of demand draft shall be minimum three months from the date of submission of
tender. The BG furnished by the respondent no. 2 therein, a tenderer, in response to the
tender initially on 12.03.2018 was for a period of six months only. The period ought to have
been 40 [forty] months. The bids were opened on 06.04.2018, and on 07.04.2018 i.e. one
day later, the respondent no. 2 sought to make up the said deficiency by adding a period of
34 [thirty four] months to the BG which was valid for six months only. The aforesaid bid made
by the respondent no. 2 was accepted initially on 03.05.2018. After evaluation, the Tender
Evaluation Committee accepted the same as it was the lowest amongst the three bids that
had been received. The bone of contention therein was whether it was possible for the
Vidartha Irrigation Development Corporation to condone the initial BG being given for an
admittedly incorrect period of six months. It was contended on behalf of the Vidartha
Irrigation Development Corporation that the term of BG, if originally wrongly given, and which
made a tenderer ineligible, did not disqualify him as a clarification can be sought from the
bidder after which the term can be extended in conformity with the tender conditions. It was
only when the said deficiency was met by the respondent no. 2 its bid was accepted, being
the lowest bidder. It was further contended that it was a bona fide decision taken by the
authority. The Hon'ble Supreme Court observed that it was only at a pre-tender stage that a
clarification regarding tender conditions could have been obtained in view of the caution. A
query was raised in that connection in the pre-tender meeting and it was clarified that the
said term cannot be modified. The Hon'ble Supreme Court had found the BG submitted by
the respondent no. 2 therein directly inconsistent with the bidding document and termed the
same as a material deviation. The decision in B.S.N. Joshi & Sons Ltd. [supra] was also
considered in Vidartha Irrigation Development Corporation [supra]. In the aforesaid backdrop,
the Hon'ble Supreme Court in paragraph 15 of Vidartha Irrigation Development Corporation
[supra] has gone on to observe that the words used in the tender document cannot be
Page No.# 17/20
ignored or treated as redundant or superfluous and they must be given meaning and their
necessary significance. Given the fact that the BG to be furnished as performance security for
the specified period, an essential tender condition which had to be strictly complied with was
not so complied with, it has been held by the Hon'ble Supreme Court that the Vidartha
Irrigation Development Corporation would have no power to condone lack of such strict
compliance. The condonation, as had been done in relation to the BG of the respondent no. 2
therein, was held to be perverse in the understanding or appreciation of the terms of the
tender conditions, which must be interfered by a Constitution Court. Having gone through the
factual matrix of the case in Vidartha Irrigation Development Corporation [supra] and the
context in which the observation has been made in paragraph 15 therein, this Court has
found that rather than lending support to the case of the petitioner the same supports the
stand of the tendering authority in the case in hand. The ratio that has emerged is that it is
not even open for the tendering authority, not to speak of a bidder like the petitioner, to make
deviation with regard to an essential condition for accepting a non-responsive bid even if the
said bid is the lowest.
18. In Central Coalfields Limited [supra], the Hon'ble Supreme Court of India by quoting
from the decisions in Ramana Dayaram Shetty vs. International Airport Authority of India,
(1979) 3 SCC 489 and G.J. Fernandez vs. State of Karnataka, (1990) 2 SCC 480, has gone to
observe that the Court must, as far as possible, avoid a construction which would render the
words used by the author of the document meaningless and futile or reduced to silence any
part of the document and make it all together inapplicable. It has reaffirmed that the
tendering authority issuing the tender, has the right to enforce the terms of the tender. If a
party approaches a Court for an order restraining the employer from strict enforcement of the
terms of the tender, the Court would decline to do so. The Court will not countenance
interference with the decision of the employer at the behest of an unsuccessful bidder in
respect of a technical or procedural violation. After considering a host of decisions including
Poddar Steel Corporation [supra], as regards contours of judicial review in relation to tender
process, it has been held that the issue of acceptance or rejection of a bid or a bidder should
be looked at not only from the point of view of the unsuccessful party but also from the point
of view of the employer. Ordinarily, the soundness of the decision taken by the employer
Page No.# 18/20
ought not to be questioned. However, the decision-making process can be subjected to
judicial review. The decision may be questioned if it is irrational or mala fide or intended to
favour someone or a decision that no responsible authority acting reasonably and in
accordance with relevant law could have reached. It has been observed in Central Coalfields
Limited [supra] that in Poddar Steel Corporation [supra] the Court did not at all advert to the
privilege-of-participation principle laid down in Ramana Dayaram Shetty [supra] and accepted
in G.J. Fernandez [supra]. It was observed that the Court did not consider whether, as a
result of the deviation, others could also have become eligible to participate in the bidding
process.
19. In the case in hand, the tendering authority had insisted for compliance of the
eligibility criterion laid down in Point no. 5 of Part-IV : Eligibility Criteria for Qualification in the
NIT on the part of the bidders. The plea urged by the petitioner during the hearing regarding
alleged non-compliant nature of M/s Faber Sindoori's technical bid has already been negated
for the reasons indicated hereinabove. The petitioner has not made any whisper to the effect
that the bid of the respondent no. 6, either technical bid or financial bid, was deficient in any
manner whatsoever. The petitioner has not contended anything to the effect that the
respondent no. 6 who had emerged as the successful bidder, did not meet any of the
eligibility criteria laid down in Part-IV : Eligibility Criteria for Qualification in the NIT. In the
aforesaid view of the matter, no deviation is found to be made by the tendering authority
from the terms and conditions of the NIT during the evaluation process. If insistence by the
tendering authority for having an office in Assam is for the purpose to assure itself on the
premise that the service provider agency having an office in Assam, would be in better
position to attend to the urgent needs that might arise during the period of the Contract
Work, then the same cannot be termed to be arbitrary and irrational in any manner. If such is
the rationale behind the incorporation of the condition of having an office in Assam in the NIT
then it cannot be said that such condition is against the public interest considering the scope
of work/service provider's responsibilities which have called for round the clock service. As a
result, the assailment made to the report dated 26.04.2021 of the Technical Committee
whereby the Technical Committee had declared the technical bid of the petitioner as non-
responsive is found bereft of merit.
Page No.# 19/20
20. In so far as the allegation regarding institution of criminal proceedings against the
respondent no. 6 is concerned, it is noticed upon perusal of the order dated 06.05.2021 and
the order dated 11.06.2021, both passed in AB no. 1343/2021, that the allegations appear to
be in respect of deficiency in engagement of a specific number of employees. The Court while
extending the benefit of pre-arrest bail to the respondent no. 6 by its order dated
11.06.2021, after perusal of the materials in the concerned case diary, had gone through the
statement of the Principal-cum-Chief Superintendent, Assam Medical College & Hospital,
Dibrugarh. After going through the statement, the Court recorded satisfaction to the effect
that the allegations in respect of deficiency in engagement of a specific number of employees
by the respondent no. 6 and other allegations were found to have been denied. Other than
making a bald allegation the petitioner has not pointed out how the pendency of the criminal
proceeding has dented the credibility and past record of the respondent no. 6 qua the
Contract Work. It appears that the allegations in the said criminal proceeding are not
connected with cleaning and sanitation services and in absence of requisite details, this Court
is not in a position to comprehend anything about any adverse effect in the bid of the
respondent no. 6 for the Contract Work.
21. The general principles of offer and acceptance apply also in tender cases. The tender
notice calling for tenders is an invitation to offer. By submitting a tender in response to the
tender notice a tenderer makes an offer and acceptance of the tender results in a concluded
contract. It is settled proposition of law of contract that the offer and acceptance of an offer
must be absolute. When the tenderer making an offer in response to the invitation of offer,
puts in a condition then the same becomes a conditional offer and there is no obligation on
the part of the other party to accept such a conditional offer. Viewed from that perspective,
the tendering authority by the NIT dated 21.01.2021 invited the intending and experienced
agencies to make offers by submitting their tenders to provide cleaning and sanitation
services to different Medical College Hospital[s] under the tendering authority subject to the
terms and conditions incorporated in the NIT. Responding to the said invitation, the petitioner
herein had made its offer but while making its offer it had put in a condition that it would set
up an office in Assam only in the event the Contract Work of providing cleaning and
Page No.# 20/20
sanitation services was awarded to it. By putting in such a condition, the petitioner had
sought to alter/modify the condition set forth in the invitation made by the tendering
authority, thus, making its offer as a conditional one. On receipt of such conditional offer the
tendering authority who professes to adhere to the terms and conditions incorporated by it in
the invitation, decided not to accept such conditional offer. In the above fact situation
obtaining in the case in hand, this Court finds the decision-making process adopted by the
tendering authority not vitiated in any manner and does not find the decision of the tendering
authority not to accept the conditional offer made by the petitioner to be arbitrary and
irrational in any manner.
22. In view of the discussions made and for the reasons stated above, this Court has found
no reason to interfere with the decision taken by the Technical Committee on 26.04.2021 in
respect of the technical bid submitted by the petitioner in response to the NIT dated
21.01.2021 whereby the technical bid of the petitioner was declared non-responsive.
Consequently, the writ petition is found devoid of any merit. As a result, the writ petition is
dismissed. There shall be no order as to cost.
JUDGE
Comparing Assistant
