Bhaba Dev Mahanta vs The State Of Assam And 5 Ors
2022 Latest Caselaw 3211 Gua

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GAHC010081732021




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                       Case No. : WP(C)/2924/2021

         BHABA DEV MAHANTA
         S/O LATE RAGHU RAM MAHANTA,RESIDENT OF FASHIA NO. 1, VILLAGE
         HARISINGA, PO HARISINGA, PS PANERI, DIST UDALGURI (BTR) 784570



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM, PUBLIC WORKS ROADS DEPARTMENT, DISPUR GUWAHATI 06

         2:THE CHIEF ENGINEER

          PUBLIC WORKS DEPARTMENT (ROADS) CHANDMARI
          GUWAHATI 03
          KAMRUP M ASSAM

         3:THE SUPERINTENDING ENGINEER

          PUBLIC WORKS DEPARTMENT
          KOKRAJHAR (R AND B) CIRCLE
          KOKRAJHAR

         4:THE EXECUTIVE ENGINEER

          PUBLIC WORKS ROADS DEPARTMENT
          UDALGURI (R AND B) DIVISION

         5:THE BODOLAND TERRITORIAL COUNCIL

          REPRESENTED BY ITS PRINCIPAL SECRETARY
          BTAD
          KOKRAJHAR
                                                                            Page No.# 2/20


            6:SRI PABITRA BORO

             WARD NO. 3
             TANGLA
             PO AND PS TANGLA
             DIST UDALGURI
             ASSAM 78452

Advocate for the Petitioner   : MR. U K NAIR

Advocate for the Respondent : SC, PWD




                                     BEFORE
                    HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

                                        JUDGMENT

Date : 25-08-2022

The nature of certain conditions of an Notice Inviting Tender, whether directory or mandatory, has arisen for consideration in this present writ petition with the corollary question regarding the consequence of non-fulfillment of such conditions are the principal issues which have arisen for determination in the instant case.

2. The matter pertains to a Notice Inviting Tender (NIT) dated 21.12.2020 for four one of packages under SOPD-G for the year 2019-2020 for construction of roads in the BTC area. The petitioner claims to be qualified in all respects and had participated in the bidding process for construction of the road under Package no. SOPD-G-19-20-

47. The bid of the petitioner was found to be technically responsive. The petitioner could learn that the bid of the respondent no. 6, Shri Pabitra Boro was not complete as the same did not meet the mandatory requirement of Clause 4.3 (f) and 19.2 (a)

(iii) of the tender conditions but in spite of the same, the bid of the respondent no. 6 was declared to be technically responsive. Consequently, the Chief Engineer, PWD (R) Page No.# 3/20

had issued an impugned letter of acceptance dated 26.02.2021 in favour of the respondent no. 6 though, the prize was the same so that of the petitioner.

3. When the matter was moved on 05.05.2021, this Court had directed maintenance of status quo till the returnable date. The said order of status quo was, however, extended from time to time.

4. I have heard Shri UK Nair, learned Senior Counsel assisted by Shri R. Singha, learned counsel for the petitioner. I have also heard Shri D. Saikia, learned Advocate General, Assam assisted by Shri R Dhar, learned State Counsel and Shri TJ Mahanta, learned Senior Counsel assisted by Ms. P Chakraborty, learned counsel for the respondent no. 6. The documents placed before this Court have also been duly perused. Shri Dhar, the learned Standing Counsel has also produced two numbers of files in original containing the records.

5. Since the issue begging an answer is with regard to the eligibility of the respondent no. 6 while submitting his bid, this Court would proceed to determine the said issue only. In other words, the present lis is nothing to do with the eligibility of the bid of the petitioner which is assumed to be valid in absence of any challenge.

6. Shri Nair, learned Senior Counsel has drawn the attention of this Court to the NIT dated 21.12.2020 and submits that out of the four works, the work against Sl. No. 4, as indicated above, concerns the present dispute. Referring to the bid document namely, Section 1: Instruction to Bidders, Clause 4.3 has been referred to. Under the said Clause, if an employer has not undertaken pre-qualification of the potential bidders, all bidders shall furnish the following information and documents. In the instant case, it is admitted that no exercise was undertaken for pre-qualification of potential bidders. Under Clause 4.3 (f), there is requirement to furnish reports on the Page No.# 4/20

financial standing of the bidder, such as, profit and loss statements and auditor's report for the last five years. Attention has also been drawn to Clause 4.5 (A) which requires the bidders to have, in the last five years, certain achievements and as per sub-clause (a), a bidder is required to achieve a minimum annual financial turnover of certain percentage of the estimated cost in any one year.

7. So far as "Preparation of Bids" is concerned, Shri Nair, the learned Senior Counsel has referred to Clause 12.1 (iii) which requires submission of certificates, undertakings, affidavits as specified in Section 2. Reference has also been made to the Appendix to the ITB wherein the last five years have also been specified as 2015-16, 2016-17, 2017-18, 2018-19 and 2019-20. Reference has also been made to the Qualification Information which is present in the bid documents under Section 2. In Qualification Information 1.8-1.10, the financial reports for the five years have been specified to be balance sheets, profit and loss statements, auditor's reports etc.

8. The comparative statement has been annexed as Annexure-3 to the writ petition and by referring to the same, the petitioner has contended that so far as the year 2019-20 is concerned, the respondent no. 6 did not give the annual turnover. As far as the price bid is concerned, the amount offered by the petitioner is Rs.9,00,00,000/- (Rupees Nine Crores) only, whereas the respondent no. 6 had also offered the same price.

9. Shri Nair, learned Senior Counsel for the petitioner has submitted that the requirement of providing the annual turnover for the preceding five years is a mandatory requirement with the object to know the financial soundness of the intending bidder. Further, to remove any anomaly, the five years have been specifically mentioned. Under those circumstances, when, admittedly, the respondent no. 6 did not give the figures for the year 2019-20, the bid of the respondent no. 6 could not Page No.# 5/20

have been held to be technically responsive. He submits that financial soundness is an essential criteria and the capability of the Contractor is directly dependent on the same. Under those circumstances, it is not legally permissible to overlook and ignore the said aspect. The learned Senior Counsel submits that though a letter of acceptance was issued on 26.02.2021, due to the prevailing situation at that time, including Model Code of Conduct due to BTC Election, no work could be proceeded and as stated above, this Court vide order dated 05.05.2021 had directed maintenance of status quo.

10. It is further submitted that on a perusal of the comparative statement, it would be seen that the price offered by the petitioner is identical with the price offered by the respondent no. 6 and therefore, the question of loss of public exchequer would also not arise.

11. Attention of this Court has also been drawn to the order dated 04.02.2022 passed by this Court in IA(C)/2127/2021 which was filed by the respondent no. 6 for vacation of the interim order dated 05.05.2021. It is submitted that this Court after hearing all the parties had come to a conclusion that no case was made out for vacation of the interim order. It is, accordingly contended that when this Court, after elaborate consideration and discussions, had rejected the prayer for vacation of the interim order, the said interim order can be made absolute and further directions be given to allot the contract to the petitioner.

12. In support of his submissions, Shri Nair, the learned Senior Counsel for the petitioner places reliance upon the case of Central Coal Fields Ltd. & Anr. Vs. SLL- SML (Joint Venture Consortium) & Ors. , reported in (2016) 8 SCC 622. In the aforesaid case, the Hon'ble Supreme Court has laid down that norms having been set, there cannot be any deviation. Reliance has also placed upon the landmark case of Page No.# 6/20

Mohinder Singh Gill v. Chief Election Commissioner. , reported in (1978) 1 SCC 405 wherein, it has been laid down that an order has to be defended from the reasons appearing on the same and not from what was in the mind of the officer which may be later on put on record by way of an affidavit.

13. Defending the action of the State, Shri D Saikia, learned Advocate General, Assam has submitted that the interpretation made on behalf of the petitioner regarding the clauses of tender document is not correct. He contends that the document being authored by the Department, it is the interpretation of the Department which has to be accepted.

14. Coming to the controversial clause of the bid document, namely, Clause 4.3 (f), the learned Advocate General submits that the aforesaid provision has to be read along with Clause 4.5 (A) (a). In other words, it is contended on behalf of the State that the requirement to furnish reports on the financial standing of the bidder, as stipulated under Clause 4.3 (f), is governed by Clause 4.5 (A) (a) wherein, the accomplishment has to be achieved in any one year. In that view of the matter, the contention of the Department is that non-furnishing of information by the respondent no. 6 for the year 2019-20 shall not have any effect in determining the technical responsiveness of the bid of the respondent no. 6.

15. Attention of this Court has also been drawn to Part-F of the bid document with regard to "Award of Contract", as per which the contract was to be awarded to the bidder whose bid has been determined. Specific reference has been made by Shri Saikia to Clause 31.1 (i), as per which a bidder whose bidding documents are found to be substantially responsive and who has offered the lowest evaluated bid price is to be awarded the contract. The learned Advocate General, accordingly submits that the bid of the respondent no. 6 has been found to be substantially responsive and therefore, Page No.# 7/20

the decision to allot the work to him has been taken.

16. As regards the second issue, namely, the reasons as to why the work has been allotted to the respondent no. 6 in spite of the fact that the price offered by the petitioner and the respondent no. 6 were found to be at par, the learned Advocate General has supported the said decision by contending that the same was based on the past performance of the said respondent no. 6. In this regard, attention of this Court has been drawn to the averments made in paragraph 3 of the affidavit-in- opposition of the respondent no. 1 filed on 18.05.2022. In the said paragraph, it has been stated as follows:

"That as regards to the statements made in paragraph 20 of the writ petition the deponent begs to state that a Bid Evaluation Report for the work, "Construction of Road from Phasia (UT Road) to Lissing (Pani Modi) via No. 1 Phasia (Jagta) including Construction of RCC Bridge in Udalguri (R&B) Division under SOPD-G for the year 2019-20, Udalguri LAC, Package No. SOPG_G_19_20_47", was received from the office of CE, PWD (Roads), Assam, Chandmari as per the requirement of the Govt.

Notification No. FEB. 331/2015/85, dated 18 th September, 2018. It has been observed from the Bid Evaluation Report that 3 (three) technically qualified bidders (namely, Pabitra Boro, Bhaba Dev Mahanta & Marjit Basumatary) have quoted same lowest bid price of Rs. 9,00,00,000/- (Rupees Nine Crore only) and were ranked as L1 Bidder and the department had to choose one from 3 (three) L1 bidders. Since, there is no provision of ranking in technical evaluation stage for selection of final one from the 3 (three) L1 bidders, after careful scrutiny, the Department recommended Shri Pabitra Boro based on his past performance in execution and completion of a good number of similar projects. The Page No.# 8/20

Department did not find any ground not to award the work to Shri Pabitra Boro."

17. On the issue of the order of this Court dated 04.02.2022 passed in IA(C)/2127/2021 whereby, the prayer for vacation of the interim order dated 05.05.2021 was rejected, Shri Saikia has drawn the attention of this Court to paragraph 15 of the order wherein, this Court has remarked that the observations made in the order are only for the purpose of consideration of the interlocutory application and shall not have any impact in the final outcome of the writ petition.

18. Shri Saikia, learned Advocate General has relied upon the case of Central Coal Fields Ltd. (supra) and has contended that technical deviation of the clauses is permissible. He has specifically referred to the following paragraphs:

"43. Continuing in the vein of accepting the inherent authority of an employer to deviate from the terms and conditions of an NIT, and reintroducing the privilege-of-participation principle and the level playing field concept, this Court laid emphasis on the decision-making process, particularly in respect of a commercial contract. One of the more significant cases on the subject is the three-Judge decision in Tata Cellular v. Union of India which gave importance to the lawfulness of a decision and not its soundness. If an administrative decision, such as a deviation in the terms of NIT is not arbitrary, irrational, unreasonable, mala fide or biased, the courts will not judicially review the decision taken. Similarly, the courts will not countenance interference with the decision at the behest of an unsuccessful bidder in respect of a technical or procedural violation. This was quite clearly stated by this Court (following Tata Cellular) in Jagdish Mandal v. State of Orissa in the following words:

"22. Judicial review of administrative action is intended to prevent Page No.# 9/20

arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold."

This Court then laid down the questions that ought to be asked in such a situation. It was said:

"22. ... Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:

(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;

OR Page No.# 10/20

Whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached";

(ii) Whether public interest is affected.

If the answers are in the negative, there should be no interference under Article 226."

...

47. The result of this discussion is that the issue of the 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. As held in Ramana Dayaram Shetty the terms of NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision-making process can certainly be subject to judicial review. The soundness of 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" as held in Jagdish Mandal followed in Michigan Rubber.

48. Therefore, whether a term of NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders as held in Ramana Dayaram Shetty. However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. The lawfulness of that decision can be questioned on very limited grounds, as mentioned in the Page No.# 11/20

various decisions discussed above, but the soundness of the decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot."

19. Reference has also been made to a decision of the Hon'ble Supreme Court reported in the case of M/s. NG Projects Ltd. Vs. M/s. Vinod Kumar Jain , reported in (2022) 4 Supreme 177, wherein the following have been laid down:

"22. The satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of expectations from the tenderers while evaluating the consequences of non-performance. In the tender in question, there were 15 bidders. Bids of 13 tenderers were found to be unresponsive i.e. not satisfying the tender conditions. The writ petitioner was one of them. It is not the case of the writ petitioner that action of the Technical Evaluation Committee was actuated by extraneous considerations or was mala fide. Therefore, on the same set of facts, different conclusions can be arrived at in a bona fide manner by the Technical Evaluation Committee. Since the view of the Technical Evaluation Committee was not to the liking of the writ petitioner, such decision does not warrant for interference in a grant of contract to a successful bidder.

23. In view of the above judgments of this Court, the writ court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its Page No.# 12/20

hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a mala fide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present day Governments are expected to work."

20. Shri Mahanta, learned Senior Counsel appearing for the respondent no. 6- beneficiary questions the bona fide of the petitioner by contending that the technical bids were opened on 08.01.2021 and it was almost after three months that this writ petition was filed on 27.04.2021 and in the meantime, the Letter of Award dated 26.02.2021 was already issued.

21. Endorsing the submissions made on behalf of the State, the learned Senior Counsel for the respondent no. 6 further submits that there is no allegation of mala fide and arbitrariness in the instant process and accordingly, the scope of judicial review becomes limited. He further submits that the respondent no. 6 has duly completed about 39 works and has wide experience.

22. In support of his submissions, Shri Mahanta, learned Senior Counsel places reliance upon the following decisions:

i) (2007) 14 SCC 517, Jagdish Mandal Vs. State of Orissa;

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ii) (2018) 5 SCC 462, Municipal Corporation, Ujjain & Anr. Vs. BVG India Ltd. & Ors.;

iii) (2020) 16 SCC 759, Bharat Coking Coal Ltd. & Ors. Vs. AMR Dev Prabha & Ors.; and

iv) AIR 2022 SC 866, National High Speed Rail Corporation Vs. Montecarlo Ltd.

23. The observations made by the Hon'ble Supreme Court in the case of Jagdish Mandal (supra) have already been quoted above.

24. In the case of Municipal Corporation, Ujjain (supra), the Hon'ble Supreme Court has laid down as follows:

"63. As aforementioned, unless the Court concludes that the decision-making process or the decision taken by the authority bristles with mala fides, arbitrariness, or perversity, or that the authority has intended to favour someone, the constitutional court will not interfere with the decision-making process or the decision.

64. Thus, the questions to be decided in this appeal are answered as follows:

64.1. Under the scope of judicial review, the High Court could not ordinarily interfere with the judgment of the expert consultant on the issues of technical qualifications of a bidder when the consultant takes into consideration various factors including the basis of non-performance of the bidder;

64.2. A bidder who submits a bid expressly declaring that it is submitting the same independently and without any partners, consortium or joint venture, cannot rely upon the technical qualifications of any third party for its qualification.

64.3. It is not open to the court to independently evaluate the technical bids Page No.# 14/20

and financial bids of the parties as an appellate authority for coming to its conclusion inasmuch as unless the thresholds of mala fides, intention to favour someone or bias, arbitrariness, irrationality or perversity are met, where a decision is taken purely on public interest, the court ordinarily should exercise judicial restraint."

25. In the case of Bharat Coking Coal Ltd. (supra), the Hon'ble Supreme Court has laid down as follows:

"48. There is also no need to venture into questions concerning quantum of extension of time. It is clear that the same message was communicated by C-1 India to all, stating that the auction process would be extended by a period equivalent to the time between closure of auction at 1.03 p.m. and resumption at 2.30 p.m. Not only did such uniform communication put all bidders on an equal footing, but there was no possibility of any confusion given the clear wordings of the email. When it is not the case of Respondent 1 that they thought that auction would close at 7.35 p.m. and hence they were taken by surprise at the early closure, nor did they in fact highlight or object to such interpretation over the course of the resumed auction process, the question is moot and a finding ought not to be given on it."

26. In the case of National High Speed Rail Corporation (supra), the Hon'ble Supreme Court has laid down as follows:

"34. Even otherwise it is required to be noted that once a conscious decision was taken by JICC and JICA, who can be said to be the author of the terms and conditions of the tender document, taking a view and stand that the bid submitted by the original writ petitioner suffers from material deviation and the said decision was taken after considering the relevant clauses of ITB, thereafter Page No.# 15/20

it was not open for the High Court to interfere with such a conscious decision in exercise of powers under Article 226 of the Constitution of India and take a view that the bid submitted by the original writ petitioner was in substantial compliance.

35. As observed hereinabove, there are as such no allegations of mala fides and/or favouritism at all. Therefore, the High Court has erred in holding that the bid submitted by the original writ petitioner was in substantial compliance. Whether the bid submitted by a bidder suffers from any material deviation and/or any substantial deviation should be left to the author of the bid document and normally, the High Courts, in exercise of the powers under Article 226 of the Constitution of India, should not interfere with the same unless such a decision is found to be mala fide and/or there are allegations of favouritism and/or such a decision is arbitrary."

27. Rejoining his submissions, Shri Nair, learned Senior Counsel for the petitioner has submitted that the various criteria laid down in the tender document were not accompanied by any marking system which makes it clear that there cannot be any deviation from the said requirement. He further submits that though normally, the interpretation given by the author of the tender document is to be accepted, in the instant case, a bare reading of the clauses would make it clear that Clauses 4.3 and 4.5 are distinct and different. The argument of substantial compliance can be only with regard to Clause 4.5 and not Clause 4.3 wherein, the financial soundness of a particular bidder can be determined.

28. As regards the delay in approaching the Court, the learned Senior Counsel for the petitioner submits that apart from the fact that no work could be proceeded because of the pandemic situation, the Model Code of Conduct was also invoked due to the elections in the BTC. In any case, the interim order passed by this Court was Page No.# 16/20

refused to be vacated in the IA filed by the respondent no. 6 which was rightly rejected.

29. The rival submissions made by the learned counsel for the parties have been duly considered and the materials produced before this Court have been carefully examined.

30. Clause 4.3 (f) which would play a significant role in the adjudication of the present lis is extracted hereinbelow:

"4.3 If the employer has not undertaken prequalification of potential bidders, all bidders shall furnish the following information and documents with their bids in Section 2:

(a) ...

(b) ...

.

.

.

(f) Reports of the financial standing of the Bidder, such as profit and loss statements and auditor's report for the past five years."

31. The expression used in Clause 4.3 is 'shall' and as revealed above, under sub- clause (f), the bidders were required to furnish reports on the financial standing which would include profit and loss statements and auditor's report for the past five years. It is not in dispute that the said clause would come into play as the pre-condition has been fulfilled, namely, the employer not having undertaken prequalification of the potential bidders.

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32. The defence sought to be projected is twofold. Firstly, Clause 4.3 (f) of the tender conditions has to be read with Clause 4.5 (A) (a). The second defence is with regard to substantial compliance and in this regard, Clause 31.1 (i) has been pressed into service. It has also been contended that technical deviation is permissible.

33. Let us first deal with the preliminary objection regarding the delay in filing the writ petition. It is a matter of fact that from the date of issuance of the LoA dated 26.02.2021, there has been a delay of about 2 months in instituting the writ petition. However, the reasons assigned are that the work was not proceeded with, both on account of enforcement of the Model Code of Conduct of the BTC as well as the pandemic situation. Further, taking into the fact that this Court while issuing notice had come to a prima facie satisfaction and had also passed an interim order which was also refused to be vacated in the IA(C)/2127/2021 filed by the respondent no. 6, this Court is of the opinion that the delay shall not have any effect in the adjudication of the present case.

34. The first defence on merits that Clause 4.3 (f) has to be read with Clause 4.5 (A)

(a) of the tender conditions does not appear to be a reasonable one. Though there is no dispute to the settled principle that the author of the bid document would be the best person to interpret the clauses, it is also to be taken into account that such interpretation has to be a reasonable one and should not be against the plain meaning of the same. As indicated above, the expression used in the Clause 4.3 is 'shall' and under sub-clause (f), credentials regarding the financial standing of the bidders for the last five years are to be given. On the other hand, Clause 4.5 (A) (a) is to determine the eligibility by achieving a minimum annual financial turnover of certain percentage of works in any one year of the last five years as referred to in the Appendix. The eligibility criterion laid down in Clause 4.5 (A) (a) is a distinct and different criterion Page No.# 18/20

than that of Clause 4.3 (f). The aforesaid finding is fortified by the Appendix to the ITB which also has specifically mentioned the years for which the information is to be given. In view of the above, this Court is of the unhesitant opinion that Clause 4.3 (f) and Clause 4.5 (A) (a) are distinct and different clauses which are to be independently fulfilled.

35. As indicated above, on behalf of the State, an argument was made regarding substantial compliance. To recapitulate, reference was made to Clause 31.1 (i) of the ITB which is with regard to award of contract to substantially responsive bidder who had offered the lowest evaluated bid price. It has been argued that the bid of the respondent no. 6 is substantially responsive as reports of the financial standing has been given for four years and in any case, Clause 4.5 (A) (a) permits even for one year.

36. The aforesaid contention is wholly untenable, both in law as well as on facts. As has been held above, Clause 4.3 (f) is an independent and distinct clause which cannot be read with Clause 4.5 (A) (a). The requirement of furnishing reports on the financial standing of the bidder for past five years is for the purpose of ascertaining the financial soundness and capability of the bidder to complete the work and is one of the most important factors to be taken into consideration. The expression "substantial compliance" appearing in Clause 31.1 (i) cannot be applied to overcome the shortcoming of the requirement of Clause 4.3 (f) and such compliance would come into play only for matters which requires subjective satisfaction of the authorities.

37. As hinted above, a query was raised by this Court that assuming the bid of the respondent no. 6 is held to be technically responsive, what led the decision tilt towards the said respondent no. 6. The said query was responded by contending that Page No.# 19/20

the past performance of respondent no. 6 was taken into consideration.

38. There is no manner of doubt that past performance of a Contractor would definitely be a relevant factor for consideration if the financial bids are found to be equal, in the instant case, the said consideration would not even come to application inasmuch as, the bid of the respondent no. 6 has already been held to be technically non-responsive.

39. Though it is a settled principle of law that the owner would have "free play on the joints", a phrase coined by the Hon'ble Supreme Court in the case of Fasih Chaudhary v. D.G., Doordarshan, reported in (1989) 1 SCC 89 and reiterated in a number of subsequent cases, including the landmark case of Tata Cellular Vs. Union of India, reported in (1994) 6 SCC 651, in the instant case, giving such leverage to the owner to tinker with a clause which has been held to be mandatory and connected to the financial soundness of a bidder would be wholly unreasonable as well as illegal.

40. In view of the aforesaid discussions, this Court is of the unhesitant opinion that the impugned decision to hold the bid of the respondent no. 6 responsive and the subsequent order dated 26.02.2021 to allot the work in question to the said respondent no. 6 cannot be sustained in law. Accordingly, the said action and order are set aside. Consequently, the authorities are directed to allot the work to the valid lowest bidder in accordance with law.

41. Accordingly, the writ petition stands allowed. No order as to cost.

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42. The original records in 2 files are returned herewith to Shri R Dhar, learned Standing Counsel, PWD.

JUDGE

Comparing Assistant