High Court
Case Details
WP(C) 6514/2013 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY
Legal Reasoning
The matter pertains to engagement of toll collector on the Kaliabhomora Bridge u nder the Nagon National Highway Division, for which the notice of the Ministry o f Road Transport and Highways was published in The Assam Tribune on 30.10.2013 ( Annexure-H). Through this advertisement, bids were invited from the intending bi dders, who are registered in the e-tendering portal of the Assam PWD. Complainin g of paucity of time in downloading the tender documents, the intending tenderer s approached Court to interfere with the tender process. 2. In the context of the projection made by the petitioners, interim order was passed on 11.11.2013, whereby subject to the petitioners submitting their on line bids by 14.11.2013, the evaluation of their technical bids were ordered to be made by the Court. The financial bids scheduled to be opened on 15.11.2013, c ould then be opened as fixed. But immediately after the Court’s interim permitting submission of tende 3. r by the petitioner, the respondents have filed the Misc. Case No.3281 and 3280 of 2013, praying for modification of the Court’s interim order. According to the respondents, the online process does not permit acceptance of any tender beyond 14.01 Hrs. of 8.11.2013, as there is an automatic lock in mechanism of the tech nical and financial bids. On this basis it was projected by the departmental law yer Mr. I Choudhury that the online tenders of the writ petitioners can’t be bel atedly accepted, as per the Court’s interim order dated 11.11.2013. 4. Faced with the above contention of the respondents, the petitioners then prayed for liberty to submit their tenders manually and against this plea, an a dditional affidavit has been filed today by the respondents. Here the respondent s refer to the circular of 17.11.2011 of the Ministry of Road Transport and High ways to project that e-tendering system was made mandatory for all national high way works w.e.f. 1.1.2012 and accordingly as the implementing agency, the respon dents have switched over to the e-Procurement module and the present tender proc ess is under this module, which replaces the earlier prevalent e-Publishing modu le. 5. For the writ petitioners, Advocates Mr. UK Nair and Mr. PN Goswami conte nd that if the 2 petitioners are allowed to submit tender manually, apart from p rotecting their individual interest, the State is expected to garner higher reve nue. Referring to the multiple documents to be furnished by the intending tender er, as stipulated in Clause 2.7 of the Instruction to the Bidders, the writ peti tioners argue that the permitted 3 days time was insufficient to procure all the documents to submit valid tender. 6. In the context of the rival submission, the issue that is required to be addressed by the Court is whether it is feasible to permit participation throug h manual process, as sought by the two petitioners. The OM No.10/3/2012-PPC date d 30th March, 2012 of the Ministry of Finance, Department of Expenditure, Public Procurement Cell prescribes that the e-Procurement module should be implemented for the Transport and Highways Ministry w.e.f. October, 2012. For implementing of the e-Procurement modules, guidelines have been issued in pursuant to the OM dated 30th March, 2012 and this guideline covers the entire tendering process st arting from online publishing of tender inquiries, online bid submission by bidd ers, online bid opening, online bid evaluation and publication of award of contr act. The whole process is expected to be paperless. 7. In the bidding process, a few documents are also to be submitted in phys ical form in order to match the documents submitted online and in case of any di screpancy, the test of responsiveness under Clause 3.2 (d) will be judged by acc epting the online documents and not the physical documents. 8. The Govt. of Assam has engaged the service of Nextenders as the technica l consultant and service provider for the e-Procurement module. All intending te nderers in the e-Procurement process must have a Digital Signature Certificate ( DSC) to be procured from any of the certifying authorities. It is obvious that t he DSC need not be procured for individual works and can be obtained by all cont ractors who wish to participate in the e-Procurement process. This is akin to re gistration of contractors with the Department. 9. The experienced contractors are expected to know that they are required to possess the DSC along with the other essential documents specified in Clasue 2.7 of the Instruction to the Bidders, since these are general instructions whic h have been available in the Govt. of India’s website since last over a year. 10. The requirement of adhering to e-Procurement module by the Ministry of R oad Transport and Highways have been emphasized through the circular dated 17.11 .2011 by clarifying that expenditure incurred on any work in which e-tendering s ystem has not been availed, will not be reimbursed by the Ministry. Although the present process may not entail any reimbursement by the Central Government, the revenue earned through toll collection on Kaliabhomora Bridge will go to the co ffer of the Ministry and it is they who bear the expenditure for the entire tend er process. 11. A careful reading of the process involved in the e-Procurement module un erringly projects that all documents are required to be submitted online and eve n for some of the comparable documents to be submitted in physical form, in the event of discrepancies, the documents submitted online shall prevail. As earlier recorded, the automatic lock in of the technical and financial bids received up to 14.01 Hrs. of 8.11.2013 is provided as an inbuilt measure to ensure that all steps of the e-Procurement module as per the Ministry’s guidelines are carried o ut online. Therefore I am of the view that submission of manual tenders in the e -Procurement module ought not to be allowed. Having concluded thus, the writ pet itioners’ prayer to submit their tenders manually does not find Court’s favour a nd the same is accordingly rejected. 12. The interim order passed on 11.11.2013 is recalled to the above extent.