D. James Lamkang vs The State Of Manipur Represented ...
2021 Latest Caselaw 293 Mani

SHOUGRA Digitally
         by
                  signed
                                                             [1]
KPAM     SHOUGRAKPAM
         DEVANANDA
DEVANAN SINGH
         Date: 2021.11.22
DA SINGH 09:40:24 Z                          IN THE HIGH COURT OF MANIPUR
                                                       AT IMPHAL
                                                   WP(C) No. 934 of 2019


                              D. James Lamkang, aged about 61 years, S/o (L) D. Kokchuk
                              Lamkang, resident of Daompi Village, P.O. & P.S. Chandel,
                              Chandel District, Pin-795142, Manipur., Govt. Special
                              Contractor, P.W.D. Manipur.
                                                                                .... Petitioner
                                                         -Versus-
                              1. The State of Manipur represented by its Addl. Chief Secretary
                                 (RD & PR), Government of Manipur, at Babupara, P.O. & P.S.
                                 Imphal West, District-Imphal West, Manipur-795001.
                              2. The Chief Engineer, Rural Engineer Department (RED)
                                 Manipur State Rural Roads Development Agency, having its
                                 office at New Secretariat Building, North Block, Imphal.
                                                                                 ... Respondents

3. Konsam Inakhunba Meitei, Special Class Contractor, Laipham Khunou, Mayai Leikai, P.O. Lamlong & P.S. Heingang, Imphal East District-795002.

... Private respondent B E F O R E HON'BLE MR. JUSTICE KH. NOBIN SINGH For the petitioner ∷ Shri M. Devananda, Advocate For the respondents ∷ Shri Ng. Jotindra Luwang, Advocate & Shri Niranjan Sanasam, GA Date of Hearing ∷ 28-10-2021 Date of Judgment & Order ∷ 22-11-2021

JUDGMENT AND ORDER

[1] Heard Shri M. Devananda, learned Advocate appearing for the

petitioner while Shri Ng. Jotindra Luwang, learned Advocate appearing

for the private respondent and Shri Niranjan Sanasam, learned

Government Advocate appearing for the State respondents.

                        W.P. (C) No. 934 of 2019                                             Page 1
                                    [2]


[2]       The validity and correctness of the work order dated 19-07-

2019 is under challenge in this writ petition and a prayer has been made

by the petitioner to direct the respondents to issue the work order, in

respect of the work under package No.MNO 2171, to him as per the

Clause 27.1 (i) & (ii) of the Standard Bidding Documents.

[3.1] The petitioner is a contractor by profession who had undertaken

many contract works in the past by executing them to the satisfaction of

the authorities in the Department. The Central Government through

Ministry of Rural Development, Government of India, has been providing

funds to the State Governments including the State of Manipur since

2001 for construction of roads in rural areas towards development of

roads and rural connectivity under the scheme called Pradhan Mantri

Gram Sadak Yojana (hereinafter referred to as "the PMGSY"). Since its

inception, the phases I-V of the scheme were executed by the Deputy

Commissioners of the Districts and thereafter, they were executed under

the Ministry of Rural Development and Panchayati Raj (RD & PR),

Government of Manipur after constituting the Engineering Department

called the Manipur State Rural Roads Development Agency which has

now been renamed as the Rural Engineering Department (RED).

[3.2] The Respondent No.2, the Chief Engineer, RED, Manipur issued

an NIT dated 07-01-2019 inviting percentage rate bids for construction of

62 roads and 23 bridges under batch-I, 2018-19 including the

maintenance thereof for five years from the eligible and approved

W.P. (C) No. 934 of 2019 Page 2 [3]

contractors. The petitioner being eligible for it, submitted his bids and was

declared as the lowest bidder. The petitioner being suspicious of the

actions to be taken by the respondents, approached this Court by way of

a writ petition being WP(C) No.595 of 2019 praying for a direction to issue

work order in his favour, which was disposed on 07-08-2019 with the

direction that the respondents and in particular, respondent No.2 should

examine the responsiveness of the bids of the contractors keeping in

mind the fact that the petitioner was the lowest bidder and after the

responsiveness of the bids being examined and decided by the

respondent No.2 with reasons being recorded thereof, the work order

should be issued to the contractor. This exercise, if not already done,

should be done within three weeks therefrom and after the decision being

taken by the respondents, the contractors should be informed and that

too, before the work order was issued by the respondent No.2. It may be

noted that before the disposal of the writ petition, an interim order dated

30-07-2019 was passed by this Court directing the respondents not to

issue any work order in respect of package No.MN0 2171 till 01-08-2019

which was extended till 07-08-2019. Meanwhile, an application under the

Right to Information Act was filed seeking for information and in reply

thereto, the respondents vide their letter dated 19-09-2019 furnished a

copy of the work order dated 19-07-2019 which was awarded to the

private respondent.

[3.3] According to the petitioner, the work order dated 19-07-2019

was a back dated order and if it was really issued, the same could have

W.P. (C) No. 934 of 2019 Page 3 [4]

been produced before this Court, when WP(C) No.595 of 2019 was listed

for motion on 30-07-2019 or on the dates when the interim order was

extended from time to time. No information was furnished either by the

respondents or by the Government Advocate that the work orders had

been issued to the private respondent. A copy of the work order was

furnished only when the RTI application was filed by the petitioner which

goes to show that there was no work order issued at the time of disposal

of the writ petition. Since the work order was a back dated order, it was

illegal and arbitrary being violative of the terms and conditions laid down

in the Standard Bidding Documents and the order dated 07-08-2019

passed by this Court in WP(C) No.595 of 2019. As the respondents failed

to comply with the direction as contained in the order dated 07-08-2019, a

contempt petition being Cont. Case (C) No.171 of 2019 was filed wherein

notice was issued to the respondents.

[3.4] Being aggrieved by the said work order dated 19-07-2019, the

instant writ petition was filed on the inter-alia grounds that since the

petitioner was declared as the lowest bidder in respect of the package

No.MN0 2171, the respondents ought to have followed the terms and

conditions laid down in Clause 29.1 to 29.4 for awarding contract to him.

But the respondents had failed to do that. By doing favoritism and

nepotism, the respondents had awarded the work to the private

respondent vide work order dated 19-07-2019. The award of contract to

the private respondent was in violation of the terms and conditions laid

down in the Standard Bidding Documents (SBD) and in particular, Clause

W.P. (C) No. 934 of 2019 Page 4 [5]

27.1 (i) & (ii) and the principles of natural justice. The petitioner being the

lowest bidder, did have the legitimate expectation that the contract work

would be awarded to him. The action of the respondents in awarding the

contract work to the private respondent without even rejecting his bids,

was bad in law and moreover, the respondents ought to have

communicated the same, if any, as per the Clause 29.4 of the SBD and

the failure to do so, goes to show that the respondents had violated the

terms and conditions laid down in the Standard Bidding Documents

(SBD) amounting to illegal and arbitrary act of favouritism and nepotism

and the violation of the principle of natural justice.

[4.1] The writ petition was contested by the private respondent by

way of an affidavit-in-opposition raising an objection as regards the

maintainability of writ petition on the ground that he being the

substantially responsive bidder and the lowest evaluated bidder as per

Chapter 27.1 of Section 2 of the Standard Bidding Documents, the work

order was issued to him and that he had started the execution of works

from 26-07-2019 as per the terms and conditions contained in the

agreement. The petitioner in his affidavit dated 20-12-2018 stated that his

bids would remain valid for a period of 90 days and after the expiry

thereof, he did not extend the validity period. Therefore, the petitioner had

no locus standi to file the instant writ petition. It has further been stated by

the private respondent that before filing of WP(C) No.595 of 2019, the

letter of acceptance and the work order had already been issued in his

favour and there was no any direction from this Court to stop from

W.P. (C) No. 934 of 2019 Page 5 [6]

continuing the execution of work. The petitioner misled this Court by

misrepresentation and his bids were not within the zone of acceptable

and workable qualities. Moreover, the information for award of contract

was uploaded in the PMGSY website as per Clause 29 & 29.1 under

Section 2 of the SBD/1TB. The petitioner failed to approach the

competent authority for settlement through the Dispute Redressal System

under Clause 24 & 24.1 of Section 4 of the Standard Bid Document

(SBD). As per the letter dated 29-01-2021 of the Government of India,

any work which is not executed and no fresh and financial progress is not

seen on OMMAS by 30-04-2021, would be considered for freezing and

dropping/ foreclosure and moreover, any work, which is not likely to take

off due to litigations or contractual disputes, should be considered for

dropping and the proposal relating to the same might be sent to the

Ministry at the earliest. Any of the PMGSY works including present

package No.MN0 2171, if not executed or completed before 30-04-2021,

due to litigation or contractual disputes would be dropped. If the present

work/ package is dropped, an irreparable injury would be caused to the

welfare and development of the State and to the general public.

[4.2] The stand of the State Government as indicated in their affidavit

is similar to that of the private respondent and therefore, the details

thereof are not repeated here for the sake of brevity. Relying upon the

judgment and order dated 08-08-2019 passed by this Court in WP(C)

No.717 of 2017, it has, however, been stated that the petitioner had no

right to challenge the work order. The rejection of the petitioner's bids by

W.P. (C) No. 934 of 2019 Page 6 [7]

the respondent No.2 on the ground of non-responsiveness due to the

expiry of the validity of the petitioner's bids is justified. The work order

dated 19-07-2019, in respect of package No.MN0 2171, had been

awarded to the bidder whose bids had been determined to be

substantially responsive to the bidding document and who offered the

lowest evaluated bid price as per Clause 27.1 of Section 2 of the

Standard Bidding Document (SBD/ITB). Before filing WP(C) No.595 of

2019 and Contempt Case (C) No.171 of 2019, the Tender Committee had

already examined/ evaluated the responsiveness of all the bids of 4 (four)

bidder including that of the petitioner and had taken a decision dated 11-

06-2019.

[5] In the rejoinder, while denying the averments made in the

counter affidavits, the averments made in the writ petition have been

reiterated and in addition thereto, it has been stated that on 06-12-2019,

when the writ petition was listed for consideration, this Court perused the

relevant file produced by the State Government and observed that the

committee had not assigned any reason as to why the L-2 be treated as

the lowest evaluated bid for package nor was its decision placed on the

file and accordingly, it was directed that the letter of acceptance dated 19-

07-2019 in respect of the package No.MN0 2171 should remain

suspended till the next date.

[6] Before coming to the facts of the present cases, this Court

deems it appropriate to re-visit the principles laid down by the Hon'ble

Supreme Court in matters relating to award of contract. In Tata W.P. (C) No. 934 of 2019 Page 7 [8]

Cellular Vs. Union of India, (1994) 6 SCC 651 wherein two main

issues-one, relating to the scope of judicial review and two, relating to

selection being vitiated by arbitrariness, which are relevant for the

cases also, were considered and decided by the Hon‟ble Supreme

Court. In matters relating to contracts wherein one of the parties is the

public authority, the question to be asked is, have the guidelines been

laid down, if so laid down, have they been observed? The Hon'ble

Supreme Court, after referring to its earlier decisions, summarised the

principles which are the broad grounds subject to addition of further

grounds in course of time. The Hon'ble Supreme Court held:

"69. A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated, the following are the requisites of a valid tender:

1. It must be unconditional.

2. Must be made at the proper place

3. Must conform to the terms of obligation.

4. Must be made at the proper time.

5. Must be made in the proper form.

6. The person by whom the tender is made must be able and willing to perform his obligations.

7. There must be reasonable opportunity for inspection.

8. Tender must be made to the proper person.

9. It must be of full amount.

70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review.

Government is the guardian of the finances of the State. It is

W.P. (C) No. 934 of 2019 Page 8 [9]

expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose, the exercise of that power will be struck down.

71. Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justiciable and the need to remedy any unfairness. Such an unfairness is set right by judicial review.

88. We may now look at some of the pronouncements of this Court including the authorities cited by Mr Ashoke Sen. Fasih Chaudhary v. Director General, Doordarshan was a case in which the Court was concerned with the award of a contract for show of sponsored TV serial. At p. 92 in paragraphs 5 and 6 it was held thus:

"It is well settled that there should be fair play in action in a situation like the present one, as was observed by this Court in Ram & Shyam Co. v. State of Haryana. It is also well settled that the authorities like Doordarshan should act fairly and their action should be legitimate and fair and transaction should be without any aversion, malice or affection. Nothing should be done which gives the impression of favouritism or nepotism.

See the observations of this Court in Haji T.M. Hassan

W.P. (C) No. 934 of 2019 Page 9 [10]

Rawther v. Kerala Financial Corpn. While, as mentioned hereinbefore, fair play in action in matters like the present one is an essential requirement, similarly, however, "free play in the joints‟ is also a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere as the present one. Judged from that standpoint of view, though all the proposals might not have been considered strictly in accordance with order of precedence, it appears that these were considered fairly, reasonably, objectively and without any malice or ill-will."

94. The principles deducible from the above are:

(1) The modern trend points to judicial restraint in administrative action.

(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.

(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted, it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.

(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary W.P. (C) No. 934 of 2019 Page 10 [11]

concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.

(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure".

In Air India Ltd. Vs. Cochin International Airport Ltd.

& ors.,reported in (2000) 2 SCC 617 wherein it has been held that

the law relating to award of a contract has been settled by the

Hon‟ble Supreme Court, the relevant para 7 of which is as under:

"7.The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in Ramana Dayaram Shetty v. International Airport Authority of India, Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India, CCE v. Dunlop India Ltd., Tata Cellular v. Union of India, Ramniklal N. Bhutta v. State of Maharashtra and Raunaq International Ltd. v. I.V.R. Construction Ltd.

The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its

W.P. (C) No. 934 of 2019 Page 11 [12]

own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily.

Though that decision is not amenable to judicial review, the court can examine the decision-making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene."

In Jagdish Mandal Vs. State of Orissa, reported in

(2007) 14 SCC 517, the decision in Tata Cellular case (supra)

was referred to and relied upon with the following observations:

W.P. (C) No. 934 of 2019                                                Page 12
                                       [13]



               "This Court also noted that there are inherent

limitations in the exercise of power of judicial review of contractual powers. This Court also observed that the duty to act fairly will vary in extent, depending upon the nature of cases, to which the said principle is sought to be applied. This Court held that the State has the right to refuse the lowest or any other tender, provided it tries to get the best person or the best quotation, and the power to choose is not exercised for any collateral purpose or in infringement of Article 14."

In Maa Binda Express Carrier Vs. North-East Frontier

Railway, reported in (2014) 3 SCC 760, the Hon‟ble Supreme Court

has held that the submission of tender is no more than making an offer

which the State or its agencies are under no obligation to accept and

the bidders in the tender cannot insist that their tenders should be

accepted simply because a given tender is the highest or the lowest.

It has further been held that the only enforceable right that a bidder

has, is to examine by the court whether the aggrieved party has

been treated unfairly or discriminated against to the detriment of the

public interest. In Rishi Kiran Logistics Private Ltd. Vs. Board of

Trustees of Kandla Port Trust & anr., reported in (2015) 13 SCC 233,

the decision of the Hon‟ble Supreme Court in Tata Cellular Case

(supra), has been followed with the observation that a lucid

enunciation on the scope of judicial review of administrative action, that

too in tender matters can be found therein.

W.P. (C) No. 934 of 2019                                            Page 13
                                            [14]



[7]           From the aforesaid decisions, it is seen that the law, as

regards the matters relating to award of contracts involving a public

authority, is no longer res integra. There is no need of multiplying the

decisions rendered by the Hon‟ble Supreme Court in this regard and

suffice it to say that the Court's power of judicial review of

administrative action is limited to the extent indicated in the decisions

mentioned hereinabove. But an exception has been carved out that

though a decision relating to a matter of contract is not amenable to

judicial review, the Court can examine the decision- making

process and interfere if it is found vitiated by malafides,

unreasonableness and arbitrariness. The principles of judicial review

would apply to the exercise of contractual powers by the Government

bodies in order to prevent arbitrariness or favouritism. In other words,

the principles laid down in Article 14 of the Constitution have to be kept

in view while accepting or refusing a tender. Article 14 of the

Constitution being anathema to any malafide, unreasonable and

arbitrary action of the Government or its instrumentalists, strikes at their

roots.

[8] It is not in dispute that the Respondent No.2, the Chief Engineer,

RED, Manipur issued an NIT dated 07-01-2019 inviting percentage rate

bids for construction of 62 roads and 23 bridges from amongst the eligible

bidders. The last date for receipt of bids was 25-01-2019 and the

technical bids thereof were to be opened on 28-01-2019. The petitioner

being eligible for it, submitted his bids and was declared as the lowest

W.P. (C) No. 934 of 2019 Page 14 [15]

bidder. The NIT states that the bidders shall make their bids remain valid

for acceptance for a period of not less than ninety days after the deadline

date for bid submission. Clause 27.1 of the Standard Bidding Documents

which is relevant for the present case reads as under:

27.1. Subject to Clause 30 of ITB, the Employer will award the Contract to the Bidder whose Bid has been determined:

(i) to be substantially responsive to the bidding documents and who has offered the lowest evaluated Bid Price, provided that such Bidder has been determined to be (a) eligible in accordance with the provisions of Clause 3 of ITB, and (b) qualified in accordance with the provisions of Clause 4 of ITB; and

(ii) to be within the available bid capacity adjusted to account for his bid price which is evaluated the lowest in any of the packages opened earlier than the one under consideration.

From the provisions of this clause, it is seen that the State

Government shall award the contract to the bidder whose bid has been

determined to be substantially responsive to the bidding documents and

who has offered the lowest evaluated bid price subject to the conditions

mentioned therein. In Maa Binda Express Carrier Vs. North-East

Frontier Railway, (2014) 3 SCC 760, the Hon'ble Supreme Court has

held that the submission of tender is no more than making an offer which

the State or its agencies are under no obligation to accept and the

bidders in the tender cannot insist that their tenders should be accepted

simply because a given tender is the highest or the lowest. It has

further been held that the only enforceable right that a bidder has, is to

W.P. (C) No. 934 of 2019 Page 15 [16]

examine by the Court whether the aggrieved party has been treated

unfairly or discriminated against to the detriment of public interest.

[9] It has been contended by Shri M. Devananda, the counsel

appearing for the petitioner that the work order dated 19-07-2019 was a

back dated order and if it was really issued, the same could have been

produced before this Court, when WP(C) No.595 of 2019 was listed for

motion on 30-07-2019 or on the subsequent dates when the interim order

was extended. A copy of the work order was furnished only when the RTI

application was filed by the petitioner. Since the work order was a back

dated order, it was illegal and arbitrary being violative of the terms and

conditions laid down in the Standard Bidding Documents and the order

dated 07-08-2019 passed in WP(C) No.595 of 2019. As the respondents

failed to comply with the direction as contained in the order dated 07-08-

2019, a contempt petition being Cont. Case (C) No.171 of 2019 came to

be filed wherein notice was issued to the respondents. On the other hand,

it is the submission of the learned counsels appearing for the

respondents that since the bid of the private respondent was substantially

responsive to the bidding documents, the work order was issued in his

favour and that the work order had already been issued before the order

dated 30-07-2019 was passed by this Court. Moreover, the bid of the

petitioner was rejected on the ground that the validity thereof had expired

and the details of the tender process were uploaded in the website of the

Department.

[10]       In the present case, the petitioner undoubtedly being the lowest

W.P. (C) No. 934 of 2019                                                 Page 16
                                     [17]

bidder, could have been given the work order in terms of Clause 27 of the

bidding documents or his bid could have been rejected by the State

respondents with reasons being assigned thereof. The respondents failed

to do that. The tender process was not finalized in time after the technical

bids being opened nor was the work order issued in his favour. According

to the petitioner, he was not informed at all about the status of the tender

process. Although it has been stated by the private respondent in his

affidavit that the details of the tender process were uploaded in the

website of the Department, no materials have been placed on record in

support thereof. Similar is the case with the State respondents. It may be

noted that in WP(C) No.595 of 2019 filed by the petitioner, this Court

passed an order dated 07-08-2019 directing the respondents and in

particular, respondent No.2, to examine the responsiveness of the bids of

the contractors keeping in mind the fact that the petitioner was the lowest

bidder and after the responsiveness of the bids being examined and

decided by the respondent No.2 with reasons being recorded thereof, the

work order should be issued to the contractor. Before the disposal of the

writ petition, an interim order dated 30-07-2019 was passed by this Court

directing the respondents not to issue any work order in respect of

package No.MN0 2171 till 01-08-2019 which was extended till 07-08-

2019. Meanwhile, an application under the Right to Information Act was

filed by the petitioner seeking for information and in reply thereto, the

respondents vide their letter dated 19-09-2019 furnished a copy of the

work order dated 19-07-2019 which was awarded to the private

W.P. (C) No. 934 of 2019 Page 17 [18]

respondent. When WP(C) No.595 of 2019 was listed on two/ three

occasions, this Court was never informed that since the private

respondent's bid was found to be substantially responsive to the bidding

documents, the work order had been issued in his favour and the bid of

the petitioner had accordingly been rejected. Moreover, the petitioner too

was not informed that his bid had been rejected with the result that there

was no occasion for him to approach the competent authority for

redressal of his grievances as provided in Clause 24 & 24.1 of Section 4

of the Standard Bid Document (SBD). Had the petitioner been informed,

there was no need for him to file WP(C) No.595 of 2019 and this Court

would not have passed the said orders dated 30-07-2019 and 07-08-2019

in the presence of the counsel appearing for the State respondents. In

this regard, the contention of the counsel appearing for the petitioner

appears to have substance and merit. The State respondents appear to

have concealed from this Court true facts of the instant writ petition.

[11] On 14-11-2019 when the instant writ petition was listed for

motion, this Court while issuing notice to the respondents, directed the

State respondents to produce the relevant file which was produced on 06-

12-2019 for perusal by this Court. After the perusal thereof, it was seen

that in para 5 of the note, it is stated that as per Committee's decision, the

quoted amount of the private respondent being (-) 8.20%, is to be treated

as the lowest evaluated bid for the package. This Court vide its order

dated 07-12-2019 observed that the Committee had not assigned any

reason as to why the private respondent be treated as the lowest

W.P. (C) No. 934 of 2019 Page 18 [19]

evaluated bidder. In the counter filed on behalf of the State respondents,

an endeavour has been made to contend that a decision had already

been taken by the Tender Committee on 11-06-2019 itself. If that be so,

there is no reason as to why it could not be produced before this Court

either on 30-07-2019 or 07-08-2019, when WP(C) No.595 of 2019 was

taken up for consideration. Moreover, on perusal of the file by this Court

as aforesaid, the decision of the Committee was not there at all in the file.

Therefore, the allegation that the work order dated 19-07-2019 was back

dated order, cannot be ruled out and there is a possibility that the

decision alleged to have been taken by the Committee on 11-06-2019,

might have been taken much later. The only reason given for it by the

State respondent in their affidavit, is that the factum of the decision being

taken on 11-06-2019 could not bonafidely be mentioned in the note of the

file, which is unbelievable in view of the circumstances mentioned

hereinabove. One point which the learned counsels appearing for the

respondents have emphasised, is that the petitioner's bid was rejected on

the ground that its validity had expired. In support of their contention, they

heavily relied upon the affidavit dated 20-12-2018 alleged to have been

filed by the petitioner who submitted that the said affidavit had nothing to

do with the present tender process, because the NIT was issued only on

07-01-2019. If the contention of the respondent is accepted to be true, the

bid of the petitioner could have been rejected at the stage of opening the

technical bids which they never did it. Moreover, as per the NIT, the

bidders are required to make their bids remain valid for a period of not

W.P. (C) No. 934 of 2019 Page 19 [20]

less than 90 days and the idea behind it, is that the tender process could

be completed within that period. If the State respondents were not in a

position to complete the tender process within 90 days, they ought to

have informed the bidders to extend the period of validity of their bids. As

the State respondents failed to do that, they could not take the advantage

of their own lapses and contend that since the petitioner had no locus

standi to file the present writ petition, as the validity of his bid had expired.

Considering the aforesaid circumstances, this Court is of the view that the

State respondents appear to have not conducted the tender process in a

fair and transparent manner to the detriment of public interest resulting

loss in the public exchequer.

[12] For the reasons stated hereinabove, the instant writ petition is

allowed and consequently, the work order dated 17-09-2019 in favour of

the private respondent is quashed and set aside with the direction that

appropriate steps be taken by the State respondents to see that the work

order is issued in favour of the petitioner within three weeks from the date

of receipt of a copy of this judgment and order. There shall be no order as

to costs.

                                                           JUDGE


FR / NFR


Devananda




W.P. (C) No. 934 of 2019                                                 Page 20