High Court · 2012

na as the writ petitioner’s claim is confined to this project only.

4. The petitioner, which is a proprietorship firm, claims to be in the business of rearing broiler chicken for the last several years. It submitted its offer pursuant to the said EOI within the stipulated period. On opening of the EOIs, it was found that there were altogether four offers, including that of the petitioner and the respondent No.4. The authorities had provided for a mark ing system based on the laid down criteria and the petitioner secured 120 marks out of 260, which is the highest. But inspite of the above, the respondents issu ed the provisional selection order to the respondent No.4 on 05-03-2011 after de claring the petitioner’s EOI as non-responsive.

5. The State respondents i.e. the respondent No.1, 2 and 3 have fil ed their counter affidavit through the Director of Animal Husbandry and Veterina ry Department. The said respondents have stated in their counter affidavit that a committee was constituted to scrutinize the EOIs submitted. The EOIs were open ed on 05-02-2011 and it was found that four parties had submitted their EOIs. Ba sed on the documents submitted by the respective parties, the committee short li sted three of the participants on the strength of the marks secured by them, whi ch were allotted on the basis of the documents submitted. While the petitioner w ith 120 marks was placed in the first position, the respondent No.4 with 100 mar ks was placed in the second position. The said short listing was done on the dat e of opening of the EOIs i.e. on 05-02-2012 itself. The Evaluation Committee whi le recommending the three bidders, including the petitioner and the respondent N o.4 in the first and second position respectively, stated that the selection wou ld be finalized after physical verification and recommendation of the financial institutions. Thereafter, three departmental officers made field visit and submi tted their report. Based on such report, the Evaluation Committee found that the petitioner did not possess even the mandatory requirements, such as, hatchery a nd feed mill. Therefore, the said committee categorized the bid of the petitione r as non-responsive. On the other hand, the committee having found that the resp ondent No.4 has all the necessary infrastructure, decided to provisionally selec t the respondent No.4. Thereafter, the respondent No.4 was subjected to a second field verification whereafter, recommendation has been made to award the final work order to it.

6. The respondent No.4 has also filed a detailed counter affidavit stating therein that the initial award of marks by the committee was on the basi s of the documents furnished by the respective parties, which at that point of t ime were not verified. Only after verification, it could be found out that the p etitioner did not have the eligibility criteria, such as having own hatchery and feed mill. The respondent No.4, therefore, contends that the authority rightly declared the offer of the petitioner as non-responsive and provisionally selecte d it.

7. The petitioner has filed separate rejoinder affidavits in reply to the above two counter affidavits. The petitioner has stated that it had a hat chery at Gorchuk area of Guwahati city, which was taken on lease and the said le ase was going to expire on 28-02-2010. According to the petitioner, even after e xpiry of the lease period, since it was having heavy machinery at Gorchuk, it co ntinued with the hatchery there on temporary basis till the hatchery was finally shifted to Palashbari by the last week of March, 2011.

8. I have heard Mr. J.I. Borbhuyan, ld. counsel for the petitioner, Mr. J. Handique, ld. State counsel for the respondents 1, 2 and 3 and Mr. H.K.M ahanta, ld. counsel for the respondent No.4.

9. Learned counsel for the petitioner submits that the petitioner h aving secured the highest marks i.e. 120 marks out of 260 marks, it should have been selected and the work order issued to it. He submits that the decision of t he respondents to declare the petitioner’s bid as non-responsive is without any justification. He contends that the consequential selection of the respondent No .4 is also wholly arbitrary. He submits that the respondents have been unduly ha rsh on the petitioner while adopting a liberal attitude toward the respondent No .4. He, therefore, seeks a positive interference of this Court for setting aside the decision to treat the petitioner’s bid as non-responsive and also for direc ting the respondents to issue the work order in favour of the petitioner. Learned State Counsel on the other hand justifies the action of 10. the respondents, contending that there is no arbitrariness or unreasonableness i n the decision making process. He, therefore, seeks dismissal of the writ petiti on and vacation of the interim order as according to him, because of the interim order, the State has not been able to proceed with the project, which is of con siderable public interest.

11. Learned counsel for the respondent No.4 fully supports the submi ssions advanced by the learned state counsel. Additionally, he submits that the petitioner had disclosed incorrect information in his EOI because of which he wa s allotted the highest marks. But on actual physical verification, it was found that the petitioner did not have any hatchery or feed mill because of which his bid was rightly rejected. According to him, since the respondent No.4 fulfilled all the eligibility criteria, his selection cannot be faulted, which in any case , is a provisional one. He submits that the authorities have yet to take a final decision in the matter and as such, the writ petition is premature. He, therefo re, prays for dismissal of the writ petition.

12. have been duly considered. The submissions advanced by the learned counsel for the parties As noticed above, the advertisement dated 13-01-2011 was for inv 13. iting EOIs from the intending parties to implement the Broiler Raising Project i n the township periphery of the capital city Guwahati under the Assam Vikash Yoj ana scheme. For the same, a number of eligibility criteria were laid down, out o f which two are relevant for the present case. These two eligibility criteria ar e that the party should have its own hatchery unit and that it must have its own feed mill of BIS standard or have authorized dealership of BIS standard broiler feed manufacturing farm.

14. It is seen that in terms of the said advertisement, four parties submitted their EOIs, including the petitioner and the respondent No.4. A marki ng system was laid down to award marks to the respective parties on the basis of the information furnished. An EOI opening committee was constituted, which open ed the bids on 05-02-2011. The four parties alongwith the marks awarded to them were as follows:-

4. Loknath Hatcheries (Petitioner) - 120 - 1st Luit Hatcheries (Respondent No.4) Relish Hatcheries Poultry Corner - 100 - 2nd - 50 - 20 - 3rd - 4th The committee short listed the first three parties and placed them before the Ev aluation Committee. The said Evaluation Committee thereafter recommended the sho rt listed bidders with the observation that the finalization of the bidder will be based on the physical verification of assets and the recommendation of the fi nancial institutions. Following the same, officials of the Animal Husbandry and Veterinary Department carried out field visit to the places of the petitioner an d the respondent No.4 and after spot verification, submitted field visit reports dated 23-02-2011. In so far the petitioner is concerned, it was remarked that t he hatchery unit was not found in the place as mentioned in the EOI and that the petitioner does not have its own feed mill. Regarding the respondent No.4, it w as remarked that it has a hatchery unit as well as a feed mill but it does not p roduce feed because of financial hardship. The Evaluation Committee thereafter examined the claims of both 15. the parties on the basis of the field visit report. Observing that the petitione r did not even have its own hatchery and feed mill, the committee decided to cat egorize the bid of the petitioner as non-responsive. Considering the field verif ication report, the said committee provisionally selected the respondent No.4. H owever, the provisional selection of the respondent No.4 was made subject to the report to be submitted by the Departmental Screening Committee. The minutes of the Evaluation Committee meeting is dated 02-03-2011. Pursuant thereto, by lette r dated 05-03-2011, the respondent No.4 was informed about its provisional selec tion.

16. Thereafter, another field verification of the assets of the resp ondent No.4 was carried out by a team of officers of the Animal Husbandry and Ve terinary Department, pursuant to which a fresh field verification report was sub mitted to the Director on 06-04-2011. As per the said report, the hatchery and t he feed mill of the respondent No.4 have been found to be functional. As the res pondent No.4 has been found producing its own chicks and feed, recommendation ha s been made for its final selection.

17. The claim of the petitioner that since it secured 120 marks out of 260 marks and since it was the first amongst the short listed parties, it sho uld be selected, cannot be accepted. The said marks were allotted on the basis o f the unverified information furnished by the parties. Therefore, securing the h ighest marks at the time of short listing of the parties does not clothe the pet itioner with any indefeasible right to claim that it should be selected and awar ded the contract. On subsequent field verification, it was found that the petiti oner did not have the hatchery and the feed mill as per the information furnishe d in its EOI.

18. Under such circumstances, this Court is of the view that there i s no error in the decision making process of the respondents to categorize the b id of the petitioner as non-responsive as well as in the selection of the respon dent No.4. The subsequent clarification given by the petitioner in its rejoinder affidavits that since its lease had expired, it had shifted its hatchery from t he Gorchuk area of the city to Palashbari does not improve the case of the petit ioner as it only goes to show that it did not furnish fully and truly the necess ary information at the time of submission of its EOI. Under such circumstances, the impugned decision of the respondents cannot be termed as arbitrary and unrea sonable. It is neither unfair nor irrational. In the factual context of the case , it cannot also be said that the State respondents have been more accommodative towards the respondent No. 4 while being duly harsh on the petitioner. The plea advanced that because the petitioner secured the highest marks at the time of s hort-listing (even though on the basis of unverified documents), it should be aw arded the contract, does not appeal to this Court. Decisions relating to award o f contract cannot not be taken in a rigid and mechanical manner like applying a mathematical formula. Some elbow space has to be given to the authority in charg e of the decision making process to arrive at a just and fair decision. By its very nature, such decision cannot be like a picture perfect. There will always b e some rough edges. All that has to be ensured is to see that the rough edges ar e not such so as to distort the very picture itself.

19. In view of the aforesaid, this Court finds no merit in the writ petition. The same is accordingly dismissed. Interim order passed on 19-09-2011 stands vacated.

20. However, the parties are left to bear their own cost.