Debangsu Basak JUDGMENT
Debangsu Basak, J.
1. The petitioner has assailed the rejection of his technical bid.
2. Learned Senior Advocate appearing for the petitioner has submitted that, not only the rejection of the technical bid of the petitioner was incorrect, but also, the tender evaluation process was not in accordance with the terms and conditions of the tender. The petitioner participated in the notice inviting e-tender issued by the Irrigation and Waterways Directorate for special repair of drainage channel of Nalipara at Barakar under Asansol Municipal Corporation. The prequalification work credential requirement of the tender requires a participant to have undertaken major item as described in protection work (Type A) of the tender conditions of a value of Rs. 38.23 lakhs for an individual and Rs. 76.45 lakhs for consortium/joint venture. According to him, the petitioner undertook protection work (Type A) as described in the tender conditions at least in two projects of value far in excess of Rs. 38.23 lakhs. Learned Senior Advocate appearing for the petitioner has referred to, the documents submitted by the petitioner in the tender process. He has submitted that, the authorities wrongfully and illegally did not take into consideration at least three items of work in one of the projects executed by the petitioner, and at least two items of work in the other project. The non considered items of work by themselves qualified the value prescribed in the tender process, let alone the entirety of the value of the work undertaken by the petitioner, in such projects. Therefore, according to him, the rejection of the technical bid by the authorities was incorrect.
3. Referring to the general terms and conditions of the tender process, he has submitted that, the tender conditions prescribed the schedule of important dates of the e-tenders. Under such schedule, the authorities are required to provide clear four working days between the date of the opening of the technical bid and the opening of the financial bid for disposal of complaints and obtaining of decision from appellate authority. In the present case, such schedule was not adhered to. Non-adherence with such schedule caused immense prejudice to the petitioner as the petitioner could not approach the appellate authority to urge his complaints. He has drawn the attention of the Court to the tender summary report appearing at page 101 of the writ petition and has submitted that, the technical bid was claimed to be opened on January 5, 2018 which was later updated on January 11, 2018. The financial bid was opened on January 11, 2018 itself. Therefore, four clear days were not provided between the opening of the technical bid and the financial bid. In such circumstances, the rejection of the technical bid of the petitioner should be held to be bad. The petitioner held to be qualified in the tender process.
4. Learned Assistant Additional Advocate General appearing for the State has submitted that, the technical bid of the petitioner was evaluated in accordance with the tender conditions. There are no infirmities or irregularities in such evaluation process warranting an interference by a Writ Court. He has relied upon MANU/SC/1003/2016 : 2016 Volume 16 Supreme Court Cases page 818 (Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited & Anr.) and has submitted that, the Courts should be slow in interfering with the decision making process in accepting or rejecting a bid. In the present case, the decision making process does not suffer from any mala fides. It has not been substantiated that, the decision was intended to favour someone. It has also not been substantiated that, the decision is arbitrary or irrational or such that no responsible authority acting reasonably and in accordance with law could have reached such a decision.
5. Learned Assistant Additional Advocate General has referred to the terms and conditions of the e-tender, and submitted that, it is open to the employer to interpret the tender conditions in a particular way. The Tender Evaluation Committee had considered the documents submitted by the petitioner and arrived at a finding that, the petitioner was not qualified. Such a decision cannot be said to be perverse. A Writ Court need not sit in appeal over such decision of the Tender Evaluation Committee.
6. Referring to the terms and conditions of the e-tender, learned Assistant Additional Advocate General has submitted that, the petitioner did not qualify the essential criteria laid down in the tender process. The petitioner did not have the requisite technical qualification to have its financial bid opened. Moreover, more than four working days were afforded to the parties between the date of opening of the technical bid and the financial bid as will appear from page 101 of the writ petition being the tender summary report. Therefore, according to him, no interference is called for in the present writ petition.
7. The Superintending Engineer, Irrigation and Waterways Directorate of the State of West Bengal, floated a notice inviting e-tender for special repair of drainage channel of Nalipara at Barakar under Asansol Municipal Corporation. The relevant eligibility criteria to match the prequalification work credential in terms of execution of similar previous work contract prescribed in the tender process is as follows:-
"A Prequalification (PQ) Work Credential:
i. Gross notional value of Completion Certificate (CC) of at least one 100% completed single project works contract (defined at clause 6) during the current FY and preceding five FY of similar nature (defined at clause 7) to the particular work in this e-NIT, for which the bidder intends to participate.
ii. Gross notional value of that similar work cited by bidder as PQ work credential calculated by multiplying the gross final value of the work as per the CC with a factor as stated under Clause 7 I(a), should not be less than 30% of the amount put to tender of the work for which the bidder chooses to participate. (The same shall be minimum 60% for Consortium/JV)
iii. Finally, the PQ work criteria of 'similarity' will be established, only if summation of values of any one of the following conglomerate of items, calculated from the uploaded BOQ of the bidders PQ work credential and further multiplying the sum by the factor stated in Clause 7 III and is greater than the monetary value of the corresponding conglomerate of items shown below:
a. Major Item description in brief: Protection work (Type A)
b. Rs. 38.23 Lakh & for Consortium/Joint Venture Rs. 76.45 Lakh"
8. The general terms and conditions of the subject e-tender requires a participant in such e-tender to submit bill of quantities along with work order/award of contract duly authenticated by the competent authority under technical order. The protection work (Type A) is described in Clause 7.II.f of the general terms and conditions of the e-tender. It is as follows:-
"Protection work (Type A): CC blocks/cement concrete lining/toe walls/boulders of all kind, dry brick pitching/brick block pitching/loose boulder apron/crated boulder dumping, boulder/blocks in PP rope-gabions/brick bat dumping for sausage or aprons or under water, scour hole depth filling by boulders/brick bats in geo-bags, sand/earth filled geo-bags, laying of inverted filters below pitching by conventional brick bats/jhama bags or geo-jute or geo-synthetics, including supply, carriage and laying at site etc complete."
9. Clause 14.3 of the General Conditions of the e-tender requires the Tender Evaluation Committee to evaluate the technical bids. It requires the Tender Evaluation Committee to scrutinise the bids and upload the technical bid opening summary sheet within a minimum of two working days with reasons for preliminary rejection and a preliminary list of eligible bidders/contractors whose technical proposals have been considered for uploading in the web portal. Clause 14.4 of the general conditions permits an aggrieved bidder to seek clarification/redressal/review from the Tender Evaluation Committee within 24 hours of the uploading of the tender bid opening summary sheet. Clause 14.5 of the general terms and conditions of the e-tender allows opening and evaluation of financial bid. It allows the Tender Evaluation Committee to accept the tender if it finds it acceptable.
10. The petitioner had participated in the subject e-tender. It had submitted its bids electronically. The Tender Evaluation Committee had opened the technical bid of the petitioner on January 5, 2018 as appearing from the tender summary report at page 101 of the writ petition. The technical bids were scrutinised and the result of such scrutiny was updated on January 11, 2018.
11. It is the contention of the petitioner that, two of the earlier works executed by the petitioner brings the petitioner within the technical qualification as laid down in the subject tender conditions. The tender documents submitted by the petitioner were evaluated by the Tender Evaluation Committee. According to the petitioner, three bill of quantities items in one of the works and two of the bill of quantity items in the other work should have been taken into consideration by the Tender Evaluation Committee. Not having done so, the Tender Evaluation Committee erred in evaluating the technical bid of the petitioner correctly.
12. Afcons Infrastructure Limited (supra) has held that, the decision making process in accepting or rejecting a bid should not be interfered with unless, it is substantiated that, the decision making process suffers from mala fides or is intended to favour someone or is arbitrary or irrational or such that no reasonable authority acting reasonably in accordance with law could have reached such decision. A perversity of the decision making process can be enquired into. A decision which is merely faulty or erroneous or incorrect should not be a ground for a Court to interfere. A Constitutional Court is expected the exercise restraint in interfering with administrative decision and ought not to substitute its view for that of the administrative authority.
13. The fact that, a different view can be taken on the selfsame material, is not a valid ground for interference for a Constitutional Court with an administrative decision, unless, it is substantiated that, the decision is tainted with fraud or mala fide or the decision is so erroneous that, no reasonable authority could have arrived at such a conclusion.
14. In the facts of the present case, the Tender Evaluation Committee evaluated the tender documents and did not take into consideration three of the bill of quantity items in one of the works executed by the petitioner and two bill of quantity items in the other. At best, the Tender Evaluation Committee can be said to have erred in not taking into consideration such bill of quantities. There is no material placed on record to suggest that, the impugned decision was taken in order to favour someone or suffers from mala fides. It is the contention of the petitioner that, the petitioner had quoted the rate which was 20% less than the initial quote of the private respondent. Moreover, the authorities accepted the bid of the private respondent after a discount of 2%. Ultimately, the exchequer suffered 18% less for not having accepted the bid of the petitioner. That by itself, will not attribute mala fides in the decision making process nor can the decision arrived at by the Technical Evaluation Committee be said to be taken for the purpose of benefitting the private respondent. The fact that the financial bid of the petitioner was less than 20% of the rate quoted by the private respondent was not known to the Technical Evaluation Committee as the financial bid of the petitioner was not opened while considering the financial bid of the private respondent. Moreover, the petitioner had time since January 5, 2018 when, the technical bid opening summary was uploaded till January 11, 2018 when the financial bid was opened, for the petitioner to question the decision of the Technical Evaluation Committee in not considering the petitioner as technically qualified. Nothing is placed on record to suggest that, the petitioner attempted to do so within such time period.
15. In such circumstances, I find no reason to interfere.
16. W.P. No. 1172 (W) of 2018 is dismissed. No order as to costs.
17. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
© Manupatra Information Solutions Pvt. Ltd.