High Court
Case Details
WP(C) 6881/2013 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN This case was heard yesterday and today is fixed for delivery of order.
Legal Reasoning
Heard Mr. G.N. Sahewalla, learned Senior Counsel assisted by Mr. D. Senapati, learned Counsel for the petitioner and Mr. D. Saikia, learned Addi tional Advocate General, Assam assisted by Mr. B. Choudhury, learned Counsel for the respondents, who has also produced the record. By way of this petition under article 226 of the Constitution of India, petitioner seeks quashing of the decision of the respondents rejecting t he tender of the petitioner submitted pursuant to tender dated 02-09-2013 and fo r a direction to the respondents to treat the tender of the petitioner as respon sive and thereafter to consider its commercial bid. According to the petitioner, it is a private limited company eng aged in the business of printing and supplying text books for students to variou s authorities, both within and outside the country. It is an ISO 9001:2008 certi fied company of international repute. First respondent issued tender notice dated 02-09-2013 inviting bids for printing and supply of evaluation and practice books for Class-I and II . As per terms and conditions of the tender, the bids were to be submitted in tw o formats, technical bid and commercial bid. The bidders were required to submit samples alongwith the technical bid. The samples to be submitted were exercise books/note books of similar item manufactured by the bidder which should be duly signed and stamped by the bidder. Samples of books manufactured and supplied ea rlier under their own brand name of similar works executed by the bidder should also be submitted. It was further provided that technical bid would be opened fi rst and only in case of those bidders whose technical bids were found responsive , their commercial bids would be opened. Among other requirements, the bidder wa s required to submit a certificate duly authenticated by the competent authority certifying capacity of the bidder for supply of printing materials for the last three financial years. The bidder must be a manufacturer of exercise/note books or similar item such as work books etc.. It must furnish an undertaking that it will not out source the product for manufacture or will not sublet to any other manufacturer for manufacture of the ordered materials. According to the petitioner, it fulfilled all the criteria laid down and had submitted its tender. Though no order was passed or communicated to the petitioner, it could gather that its technical bid was rejected. It thereafter received a copy of caveat filed by the first respondent before this Court regarding rejection o f technical bid but without disclosing any specific details. At that stage, petitioner filed the present writ petition. On 27-11-2013, this Court passed the following order:- (cid:28)By filing this writ petition, the petitioner which is a publishing company has expressed grievance for non-consideration of his candidature as supplier of book s under the Axom Sarva Siksha Abhijan Mission. The ground of the respondent for not giving the contract was that the petitioner was not found technically respon sive. Today in course of hearing, Mr. D. Saikia, learned Additional Advocate General s ubmits that the contract has already been settled in favour of one Bufna and one Progoti, which was issued on 15-11-2013. The learned Advocate General also subm its that he is in possession of the records showing that the petitioner was not technically responsive. Let a photocopy of these documents be handed over to the learned counsel for the petitioner. The whole matter shall be taken up for motion hearing on 03-12-2013, on that dat e the learned Additional Advocate General shall produce the record and on the ba sis thereof the matter shall be taken. In the meantime the petitioner shall be a t liberty to file appropriate application for amendment. (cid:29) Pursuant thereto, petitioner has filed applications for amendment of the writ pe tition and also for necessary interim order. From the materials placed before the Court, it appears that petitioner’s tender was rejected on the following grounds:- (cid:28)(1) As per Section-X (Capability Statement) status of the bidders is Printer. R egistration certificate from DIC not submitted but party has submitted factory l icence. (2) Samples of Bidders own brand not found, but sample submitted are printed for other organization. (cid:29) Mr. Sahewalla, learned Senior Counsel for the petitioner submits that on the abo ve basis, no reasonable person could have arrived at a rational decision that pe titioner’s bid is technically non-responsive. He also submits that even if the a bove condition insisted upon by the first respondent is accepted as part of the tender condition, it would at best be a non-essential condition, rigid complianc e of which would not be insisted upon. In support of his submission, learned Sen ior Counsel has placed reliance on a number of decisions. He finally submits tha t there is an element of public interest involved as the contract has been award ed at Rs.3,74,76,197.64 whereas the price quoted by the petitioner is Rs.2,66,08 ,633.92, the difference in the two bids being Rs.1,08,67,563.72. He, therefore, submits that by denying the petitioner the contract on the untenable ground of b eing non-responsive, first respondent would be incurring a much higher expenditu re, which is certainly not in the public interest. Mr. D. Saikia, learned Additional Advocate General appearing fro m the respondents submits that at the time of considering the technical bids, th e authority did not open the commercial bids and, therefore, the respective pric e bids were not factored in while evaluating the technical bids as those were no t known at that stage. There was no malafide in the decision making process whil e evaluating the technical bids, which was done keeping in mind the best interes t of the students. He has also placed before this Court a number of decisions to contend that price cannot always be a determining factor in awarding contract. He submits that work order was placed with one M/S Bafna Export on 15-11-2013 an d the said party has already commenced supply. I have heard learned Counsel for the parties. I have also peruse d the record produced. Without expressing any opinion on merit including as to whether the condition, for non-compliance of which petitioner’s tender was rejected as b eing technically non-responsive, is an essential condition of contract or a non- essential condition of contract, I am of the view that before rejecting the tend er of the petitioner, it ought to have been given an opportunity to explain the short comings which led to rejection of tender as prima-facie from the documents placed on record, petitioner appears to have submitted the relevant documents. The cost factor, though not always decisive, cannot also be overlooked. Accordingly, matter is remanded back to the first respondent to have a relook at the tender of the petitioner.
Decision
In view of the above, a detailed deliberation on the cited case laws is consider ed not necessary. Having regard to the above and considering the nature of the wor k, without interfering with the work order already issued on 15.11.2013, I am of the view that case of the petitioner may be reconsidered by the first responden t within a period of 7 (seven) days from the date of receipt of a certified copy of this order. The present supply order shall continue till then. Writ petition is disposed of.