High Court · 2012

(cid:28)Information furnished with relevant documents by the Business Cell AGMC Ltd. Am bari, Guwahati-1, under RTI Act, 2005, as required by petitioner, Shri Nripen Da s, Beltola, Guwahati Serial No. 1: Total 49 No. tenderers have participated. Their address an

1. d phone number has been given. Two sheet, page No. 2 2. The work order has been issued as per the order of the Director, Elementary Educ ation Department, Assam Kahilipara to a total 30 Nos. of institutions at the rat e of Rs. 1936/-. Copy enclosed. Two sheets, page No. 2. Serial No. 2. The value of the goods are given below: (1) Iron Kerahi of Rs. 1939/-, (2) Iron Kanti of Rs. 59/-, (3) Service Spoon of Rs. 59/- and (4) Mug of Rs. 79/-.

3. Serial No. 3 and 4 The work order has been issued as per direction of the Director of Elementary Ed ucation Department, Kahilipara, Assam. Copy enclosed. Two Sheets, 2 page. 4. Serial No. 5 Note sheet of the file and the copy of remaining documents are enclosed. 25 pages. Serial No. 6

5. The work has been issued as per verbal directions of the Hon’ble Education Minis ter, Education Department, Assam and the Commissioner and Secretary (Elementary) Education Department, Assam. No list has given.

6. Serial No. 7 - The copies of the agreement are enclosed. 40 pages. All total 71 pages Counter signed Sd/- illegible Sd/- illegible Public Information Officer Assam Govt. Marketing Corp. Ltd. GNB Road, Ghy- 1 I/C Business Cell Assam Govt. Marketing Crop. Ltd. GNB Road, AMbari, Ghy-1 (cid:29)

6. Pointing out to the above information furnished to the petitioner, it is submitted by Mr. S. N. Sarma, learned Sr. Counsel assisted by Mr. J. M. Borbhuy an, learned counsel for the petitioner that everything was done on extraneous co nsideration and that there was no semblance of consideration of tenders worth th e name.

7. Mr. Sarma, learned Sr. counsel for the petitioner has also referred to A nnexure -4 document dated 25.02.2011 by which also informations sought for had b een furnished which also peaks of allotment of work orders as per the verbal dir ection of the Minister of Education and Commissioner and Secretary, Elementary E ducation, Assam.

8. Referring to the Annexure-5A work orders, Mr. Sarma further submits that the utensils are sought to be purchased at much higher rate than the actual pri ce. Referring to the counter affidavit filed by the respondent No. 2 in which th e minutes of the meeting of the Purchase Committee held on 09.12.2010 has been a nnexed (Annexure-R/1), Mr. Sarma, learned counsel for the petitioner further sub mits that after issuance of the tender notice and preparation of the comparative statements, the Purchase Committee could not have approved the particular rate, i.e. Rs. 1936/-, and that too, with exorbitant rate of price escalation (20%) and transportation cost of 10%.

9. Mr. R.P. Sarma, learned Sr. counsel assisted by Mr. M.R. Adhikari, learn ed counsel representing the respondent Corporation, submits that the action of t he respondent Corporation in inviting tender and preparing the comparative state ments etc. being based on the request made by the Govt. in the Education Departm ent, no fault can be attributed in processing the tender notice. He further subm its that the approved rated having been fixed by the Purchase Committee in the E ducation Department, Govt. of Assam, the respondent Corporation is bound by it. Mr. B. Choudhury, learned SC, Education Department submits that the Purchase Com mittee having fixed the approved rate taking into account all the relevant facts , same is not liable to be interfered with. He further submits that the bid offe red by the petitioner being not within the viable range fixed by the Purchase Co mmittee, the petitioner could not become successful in the tender process and co nsequently work order could not be issued to it. He submits that the Purchase Co mmittee was duly constituted by notification dated 15.03.2010 and the said Purch ase Committee in its meeting dated 09.12.2010 taking note of the rate offered by various bids/tenders fixed the approved rate of Rs. 1936/- which the petitioner did not conform to. Mr. S.N. Sarma, learned counsel for the petitioner submits that leaving 10. aside the other illegality committed in the tender process, the fixation of app roved rate only after preparation of comparative statements on the basis of the bids offered by the tenderers, the tender process is vitiated being not transpar ent. In this connection, he has placed reliance on two decisions reported in 19 97 (II) GLT (SC) 1 (Dutta Associates Pvt. Ltd. vs. Indo Merchantiles Pvt. Ltd. & ors.) and 2011 (5) GLT 746 (Makrub Khan @ Junu Khan (Md.) vs. Manuj Kumar Sarma h & ors.)

11. In Makrub Khan (supra), the Division Bench of this Court noticing the pa rticular procedure adopted in the tender process in acceptance or rejection of t ender, held that rejection of a bid without disclosing the procedure beforehand was bad in law. Referring to the Apex Court decision in Dutta Associates Pvt. Lt d. (supra), it has been held that every NIT must disclose the procedure that wou ld be followed in the matter of acceptance or rejection of a tender so that enti re tender process becomes transparent, fair and open. As in the instant case, in the said case also, the NIT did not contain any condition that the authorities would consider the viability or suitability of the tenderer in accepting the ten der for settlement. It was found that only after opening of the tenders and at t he stage of preparation of comparative statement, the rate offered by the petiti oner was held to be exorbitant and that too, in reference to the last year’s bid . It was held that a hidden criteria in the matter of settlement of contract wou ld lead to grave danger and the same is antithesis to the concept of transparenc y, openness and fairness. In Dutta Associates Pvt. Ltd. (supra), the Apex Court while considering 12. the matter of permissibility or otherwise of (cid:28)viability range (cid:29) held as follows: \firstly, the tender notice did not specify the ’viability range’ nor did it say that only the tenders coming within the viability range will be considered. Mor e significantly, the tender notice did not even say that after receiving the ten ders, the Commissioner/government would first determine the ’viability range’ an d would then call upon the lowest eligible tenderer to make counter-offer. The e xercise of determining the viability range and calling upon Dutta Associates to make a counter-offer on the alleged ground that he was the lowest tenderer among the eligible tenderers is outside the tender notice. Fairness demanded that the authority should have notified in the tender notice itself the procedure which they proposed to adopt which accepting the tender. They did nothing of that sort . Secondly, we have not been able to understand the very concept of ’viability r ange’. . . The tenderers are all hard-headed businessmen. They know their intere st better. If they are prepared to supply rectified spirit at ‘. 11. 14 per LPL or so. it is inexplicable why should the Government think that they would not be able to do so and still prescribe a far higher viability range. . . Thirdly, th e Division Bench states repeatedly in its judgment that having determined the ’v iability range’, the government called upon only the appellant-Dutta Associates (third respondent in the Writ Petition/Writ Appeal) to make a counter-offer to c ome within the ’viability range’ and that his revised offer at the higher limit of ’viability range’ (‘. l5. 71) was accepted. This Division Bench has stretched that no such opportunity to make a counter-offer was given to any other tendere d including the first respondent. As the Division Bench has been rightly pointed out, this equally a vitiating factor. It is thus clear that the entire procedur e followed by the Commissioner and the Government of Assam in accepting the tend er of Dutta Associates (appellant herein) is unfair and opposed to the norms whi ch the government should follow in such matters viz. . openness, transparency an d fair dealing. The grounds 1 and 2. which we have indicated hereinabove are mor e fundamental than the third ground upon which the High Court has allowed the Wr it Appeal \.

13. During the course of hearing of the instant proceeding, it was submitted that some of the private respondents had earlier approached this Court seeking vacation of the interim order operating in this proceeding by which work orders have been stayed, but upon failure to get the say order vacated, they have aban doned the proceeding. Even today also none has represented the private responden ts. By order dated 11.06.2012, Bharalumukh Police Station, Guwahati was directed to get the identity of M/s. Dimasa Iron Co., Kumarpara, Guwahati (respondent No . 9). As per the report furnish by the Bharalumukh Police Station, there is no s uch firm located at Kumarpara, Guwahati about which mention has been made in the order passed thereafter on 27.06.2012. In the minutes of the meeting on 09.12.2010, the Purchase Committee has

13. fixed the appropriate rate (Rs. 1936) with the following justification: (cid:28)The Purchase Committee also examined and verified the specification, quality et c. of each sample. As regards finding out the reasonableness of rates of the utensil for Mi d-Day-Meal, the Member-Secretary informed the Committee that Commissioner of Tax es, Assam has provided the market rate vide his letter No. 1749 dated 27.11.2009 addressed to the Commissioner & Secretary, Education (Ele.) Department. The Committee, thereafter made an exercise for arriving at a reasonable rate of the 4 (four) items taken together in the following manner. Market prices of

1.Iron Kerahi 25 Dia, 14 Kg. 100 users Rs. 1288.00

2.Iron Khanti Biz Size 500 gms 3.Stainless steel service spoon 4.Stainless steel mug 1 lit. 200 gms Rs. 47.50 Rs. 35.00 Rs. 55.00 .50 20% Price escalation 10% Transportation cost 2% AGMC ------------------------------- Total : Rs. 1425 Rs. 285.00 & & & & & & & & & & & & &. Rs. 1710.50 Total Rs. 171.00 Rs.

34.00 -------------------------------- Total Rs. 1915.50 Taking the base price at Rs. 1915.50 for the 4 (four) itms taken together, the Committee after threadbare discussion approved the nearest rate (Rs. 1936.00 fro m the Comparative Department) to the base price Rs. 1915.50. Also the Committee after taking into consideration the fact that there are many valid tenders allow ed the AGMC may negotiate with any valid tenderer for procurement of the items w hose rate is above the approved rate and who is willing to work at the approved rate (Rs. 1936.00) with prior consultation with the Education (Ele.) Department. (cid:29)

14. The aforesaid approved rate has been arrived after considering the bid s offered by the tenderers including the petitioner. As noted above, the bid off ered by the petitioner is Rs. 1814/-. The Purchase Committee after arriving at p urported marketing price of Rs. 1425/- in respect of different items added 20% p rice escalation and in addition another 10% transportation cost and 2% AGMC, tot al amount coming to Rs. 1915/-. Being not contended, the Purchase Committee furt her added Rs. 21/- so as to make the approved rate Rs. 1936/- which is the rate quoted by the respondent No. 26. The Purchase Committee also allowed the respond ent Corporation to negotiate with valid tenderers for procurement of the items w hose rate is above the approved rate of Rs. 1936/-. In the process, the petition er was excluded from the fray.

15. Mr. S.N. Sarma, learned counsel for the petitioner submits that if trans portation cost (10%) is added, then the total transportation cost will be around Rs. 5 lakhs to Rs. 6 lakhs which is even likely to be more than the actual pric e of the items. In addition, the Purchase Committee also did not assign any rea son for addition of 20% as price escalation. If the utensils are required to be obtained at the earliest, with addition of 20% purported price escalation, same will be a huge loss to the public exchequer.

16. Above apart, when the Purchase Committee has fixed the approved rate onl y after receipt of the tenders and knowing the rates offered by the tenderers, o n that score alone the entire tender process is vitiated due to lack of transpar ency and openness and fair play.

17. For all the aforesaid reasons, the writ petition succeeds. The impugned work orders (Annexures-5 series) dated 25.02.2011 and 28.02.2011 are set aside a nd quashed. It is expected that the Govt. will go ahead with the project by rete ndering in fair and transparent manner so that there is no loss to public exche quer.

18. Writ petition is allowed, without, however, any order as to costs.