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Judgment
The appeal is directed against a rather articulate and wellconsidered judgment pertaining to the extent of interference in a matter pertaining to a tender
by a Court in exercise of its authority under Article 226 of the Constitution. The Single Bench has appropriately held that the Court will be slow to
interfere unless it finds a case of illegality or crass arbitrariness. The appellants herein responded to an electronic notice inviting tender issued some
time in the year 2014 for the widening and strengthening of an 8.75 km stretch of a State Highway between Motijhil and Panditbagh More Road in the
district of Murshidabad.
It is not in dispute that the estimated amount indicated in the tender documents was Rs.6,18,26,809.35. Upon the notice inviting tender being published
it appears that not too many bidders were interested, whereupon certain terms were sought to be relaxed by the authorities for bidders to be attracted
to apply thereunder. At the second stage, the appellants herein and another bidder were in the fray and even the other bidder was found not to be
technically qualified. Thus, the writ petitioner-appellants were the only one in the field and, pursuant to negotiations with the authorities, the original
rate quoted by the writ petitioners was revised to Rs. 7,08,16,427.03. Thus, the amount quoted by the writ petitioner-appellants was Rs.89,89,617.68 or
about 14.54 per cent above the estimated amount.
The appellants refer to the PWD Code and an amendment thereto of July 11, 2013 in Rule 216 (3) thereof. The sub-rule pertains to the calling of
competitive tenders and provides what steps are to be taken by the PWD personnel in case no offers are received or an inadequate number of offers
is received. The relevant part of sub-rule is set out:
“Even if, after taking appropriate steps, the response to such re-tender is less than 3, that tender may be accepted with reference to the Finance
Department; Provided that the rates do not exceed the estimated or schedule rates 3% in case of works estimate and reasonable prevailing market
price for goods and services in other cases. Otherwise, such cases should be referred to the Finance Department for decision.â€
To complete the narration before coming to the disputes that have arisen between the parties, upon the other bidder in the fray in the second round
being found not to be qualified, the writ petitioners’ bid was the only one available for consideration. The writ petitioners’ lowered bid found
favour with the Superintending Engineer, who, in an internal memo issued to the chairman of the tender committee, opined that the rate quoted by the
appellants herein appeared to be reasonable as it was 14.54% “above… BOQ of the work…†However, the chairman of the tender committee
did not immediately act on the recommendation of the Superintending Engineer or communicate the acceptance of the appellants’ tender to the
appellants.
Instead, the appellants received a terse e-mail to the effect that, for administrative reasons, the tender process stood cancelled. According to the case
carried by the appellants to the writ court, it was arbitrary on the part of the respondents to cancel the tender process without assigning any reasons
therefor. According to the appellants, “administrative reasons†cannot be a panacea for all the evil that the PWD authorities are known to indulge
in, in matters pertaining to tenders. The appellants also maintain that it is only the reasons furnished at the relevant point of time for the cancellation of
the tender process that can be looked into by the Court and any subsequent reasons that may be found in the affidavit used in court by the respondent
authorities would of no avail.
According to the appellants, the calculation that is required to be done to ascertain whether the quoted rate is above 3% of the estimated rate in terms
of the relevant paragraph of Rule 216 (3) of the PWD Code is somewhat complex and which is why the Superintending Engineer, upon being satisfied
that the bid was within the parameters as envisaged in the relevant sub-rule, had recommended the appellants’ bid to be accepted by the tender
committee. The appellants seek to make out that it is not merely the estimate put to tender that would determine whether the rate quoted was 3% over
such figure, the estimates put to tender had to be standardised against the price increase and the like and seen as on the date of consideration of the
matter for it to be ascertained whether the price quoted exceeded the 3% limit as indicated in the relevant paragraph of the sub-rule.
It was on such submission and upon noticing that the Superintending Engineer had recommended the appellants’ bid to be accepted that the
respondents were required, in course of the present appeal, to disclose the basis for calculating the figure in terms of the quoted paragraph of Rule 216
(3) of the PWD Code. According to the respondents, the relevant calculation should be on the basis of what the sub-rule says in its clear and
unequivocal language and no further meaning should be attached to the words than may be evident therefrom. In any event, the respondents contend
that it was never the writ petitioners’ case in the petition that the rate bid by them was within the permissible limit for the tender committee to
approve the same and issue a work order in their favour. However, notwithstanding such submission of the respondents, it is plain to see that the
tender process was cancelled without any or meaningful reason being furnished therefor. It also appears that a subsequent tender process was
initiated and that has also been cancelled. However, since the subsequent process is not the subject-matter of the present proceedings, such aspect of
the matter need not be gone into.
What is relevant for the present purpose is that the relevant sub-rule in the PWD Code does not imply that if there were a single bidder at a tender
process, particularly in case of retender, the bid had per force to be rejected for want of company. On a plain reading of the last paragraph of Rule
216 (3) of the PWD Code, it is evident that two sets of contracts are envisaged therein: one pertaining to works and another pertaining to the supply of
goods and materials. For contracts pertaining to works, if even a single bidder participates in a re-tender and the bid of the single bidder does not
exceed 3% estimated value of works, it would be open to the department to accept the bid without reference to any other. However, if the value of
the bid of the most successful or even a single bidder in a re-tender exceeds 3% of the estimated value of works, the bid cannot be accepted without
reference to the Finance Department and without the concurrence of the Finance Department.
In the light of the above, particularly since the act of cancellation of the tender process by the department cannot be accepted since no reasons were
furnished therefor, the petitioners’ bid is revived for the department to take cognisance thereof and act accordingly. In other words, the
petitioners’ bid of 14.54% higher than the estimated value of work put to tender will now be considered by the tender committee. If the tender
committee perceives such bid to be worthy of acceptance, in accordance with the PWD Code without reference to any other authority, the tender
committee will take appropriate steps.
If the tender committee is of the opinion that in view of Rule 216 (3) of the PWD Code the appellants’ bid requires to be forwarded to the Finance
Department for concurrence before the acceptance, the tender committee will take steps in such regard. At any rate, a final decision on the matter
should be communicated by the respondents to the appellant-writ petitioners within four weeks from date. Since the appellants have partially
succeeded here, the award of costs by the order impugned stands set aside. The judgment and order impugned stands modified to the extent indicated
above and FMA 1416 of 2017 is allowed in part. In view of the aforesaid, CAN 6546 of 2017 is disposed of. There will be no order as to costs.