Dilwar Hussain Laskar vs State Of Assam And Ors

Sl.N o.,"Name of

Schemes","Work Order

No. and Date","Allotted

Amount","Date of

Starting","Up to date

progress","If Completed

Date of

Completion","Remarks on

Contractor

Performance

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not in the prescribed format and from the said document, it is not discernible as to what was the scheme under which the work was performed, the",,,,,,,

work order number and the date, the total amount of the allotted work, the date of the starting of the work, to what extent the progress was made in",,,,,,,

the work or whether it was completed. All that the certificate provides is that in the financial year 2016-17, total monetary value of construction work",,,,,,,

in Hailakandi WR Division was Rs.88,04,606/-, in 2017-18 it was Rs.7,61,29,194/- and in 2018-19 it was Nil. Apparently, the contents do not satisfy",,,,,,,

the requirement of the prescribed bid format which is provided with the bid document.,,,,,,,

Mr. T.J. Mahanta, learned senior counsel for the respondent No.4 refers to another certificate submitted by the respondent No.4, along with his bid",,,,,,,

document dated 05.05.2020 which refers to a work number and date of work as well as the total value of the work and further that the respondent,,,,,,,

No.4 to whom the said certificate was issued had completed 100% of the work. From the point of view of the contents of the certificate dated,,,,,,,

05.05.2020 it can be said that its contents do provide some of the information as required in the prescribed bid format, but again the certificate is not in",,,,,,,

a proper format.,,,,,,,

In the circumstance, Mr. S.K. Goswami, learned counsel for the writ petitioner relies upon the pronouncement of the Supreme Court inC entral",,,,,,,

Coalfields Ltd. Vs. SLL-SML (Joint Venture Consortium) reported in (2016) 8 SCC 62 2wherein in paragraphs 51 and 52 it has been provided as,,,,,,,

under:,,,,,,,

“51. Not only this, any decision taken by the employer in accepting or rejecting a particular bank guarantee in a format not prescribed by it could",,,,,,,

lead to (avoidable) litigation requiring the employer to justify the rejection or acceptance of each bank guarantee. This is hardly conducive to a smooth,,,,,,,

and hassle-free bidding process.,,,,,,,

There is a wholesome principle that the courts have been following for a very long time and which was articulated in Nazir Ahmad v. King,,,,,,,

Emperor, namely:",,,,,,,

“………..where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of,,,,,,,

performance are necessarily forbidden.â€​,,,,,,,

There is no valid reason to give up this salutary principle or not to apply it mutatis mutandis to bid documents. This principle deserves to be applied in,,,,,,,

contractual disputes, particularly in commercial contracts or bids leading up to commercial contracts, where there is stiff competition. It must follow",,,,,,,

from the application of the principle laid down in Nazir Ahmad that if the employer prescribes a particular format of the bank guarantee to be,,,,,,,

furnished, then a bidder ought to submit the bank guarantee in that particular format only and not in any other format. However, as mentioned above,",,,,,,,

there is no inflexibility in this regard and an employer could deviate from the terms of the bid document but only within the parameters mentioned,,,,,,,

above.â€​,,,,,,,

By relying on paragraphs 51 and 52, it is the submission of Mr. SK Goswami, learned counsel for the petitioner that in the instant case, clause (j) of",,,,,,,

the bid document required the bidders to submit their completion work or up to date progress of the work performed by them in the prescribed format.,,,,,,,

Therefore, by following the proposition laid downin paragraph 52 of Central Coalfields (supra), the bidders are required to submit their certificate only",,,,,,,

in the prescribed form and not by any other method which apparently is the principle laid down in Nazir Ahmad v. King Emperor reported in AIR 1936,,,,,,,

PC 253.,,,,,,,

Mr. T.J. Mahanta, learned senior counsel for respondent No.4 on the other hand refers to paragraphs 47, 48 and 49 in Central Coalfields (supra)",,,,,,,

which is extracted as below:,,,,,,,

The result of this discussion is that the issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view,,,,,,,

of the unsuccessful party but also from the point of view of the employer. As held in Ramana Dayaram Shetty the terms of the NIT cannot be ignored,,,,,,,

as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular there must be,,,,,,,

judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but",,,,,,,

the decision making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational or mala fide,,,,,,,

or intended to favour someone or a decision ""that no responsible authority acting reasonably and in accordance with relevant law could have reached""",,,,,,,

as held in Jagdish Mandal followed in Michigan Rubber.,,,,,,,

Therefore, whether a term of the NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is",,,,,,,

essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders as held",,,,,,,

in Ramana Dayaram Shetty. However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. The",,,,,,,

lawfulness of that decision can be questioned on very limited grounds, as mentioned in the various decisions discussed above, but the soundness of the",,,,,,,

decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot.",,,,,,,

Again, looked at from the point of view of the employer if the Courts take over the decision-making function of the employer and make a",,,,,,,

distinction between essential and non-essential terms contrary to the intention of the employer and thereby re-write the arrangement, it could lead to all",,,,,,,

sorts of problems including the one that we are grappling with. For example, the GTC that we are concerned with specifically states in Clause 15.2",,,,,,,

that ""Any Bid not accompanied by an acceptable Bid Security/EMD shall be rejected by the employer as non-responsive."" Surely, CCL ex facie",,,,,,,

intended this term to be mandatory, yet the High Court held that the bank guarantee in a format not prescribed by it ought to be accepted since that",,,,,,,

requirement was a non-essential term of the GTC. From the point of view of CCL the GTC has been impermissibly re-written by the High Court.â€​,,,,,,,

By referring to the proposition in paragraph 47 and 48 it is the submission of Mr. T.J. Mahanta, learned senior counsel for the respondent No.4",,,,,,,

that whether the term in a NIB is essential or not is a decision to be taken by the tendering authority and such decision should be respected. In the,,,,,,,

case before the Supreme Court in Central Coalfields (supra), an employer/tendering authority had taken a decision that the requirement of submitting a",,,,,,,

bank guarantee in a prescribed format was an essential condition and therefore the rejection of a technical bid of a given bidder should be respected,,,,,,,

by the Court. But in paragraph 48, it has been further provided that even if the term of the NIB is essential, the tendering authority has the inherent",,,,,,,

authority to deviate from it provided the deviation is made applicable to all the bidders and the potential bidders and further the lawfulness of such,,,,,,,

decision can be questioned on a very limited ground as discussed therein. Again in paragraph 49 of the judgment of the Supreme Court in Central,,,,,,,

Coalfields (supra) it has been provided that the tendering authority ex-facie intended the term to provide the bank guarantee in the prescribed format,,,,,,,

to be mandatory and in that circumstance it was incorrect on the part of the High Court to hold that the bank guarantee in a format not prescribed by it,,,,,,,

ought to be accepted since that requirement was a non-essential term of the GTC. Accordingly, the Supreme Court took the view that from the view",,,,,,,

taken by the tendering authority had been impermissibly rewritten by the High Court.,,,,,,,

From the aforesaid provisions in paragraphs 47 to 54 of the judgment of the Supreme Court in Central Coalfields (supra), it is discernible that some",,,,,,,

free play in the joint are available to the authorities in taking a decision as to whether the term in the NIB is to be considered by it to be mandatory or,,,,,,,

it has a discretion to deviate to some extent from it. But, however, such free play again would have to be circumscribed to the extent that the decision",,,,,,,

taken to deviate from the term of the NIB would have to be made equally applicable to all the bidders and the potential bidders and secondly such,,,,,,,

decision although cannot be questioned would have to satisfy the requirement of the test of it being not arbitrary or discriminatory.,,,,,,,

When we look into the facts of the present case from the proposition of the law laid down by the Supreme Court in Central Coalfields (supra), we",,,,,,,

are confronted with a situation where admittedly the respondent No.4 had not submitted the completion certificate or the up to date progress of the,,,,,,,

work in the format prescribed. Two documents have been submitted by the respondent No.4, one being the document dated 05.05.2020 of the",,,,,,,

Executive Engineer, Hailakandi Water Resource Division which apparently does not contain the information as required in the prescribed format, and",,,,,,,

the other being the certificate dated 05.05.2020 also issued by the same Executive Engineer Hailakandi Water Resources Division which do contain,,,,,,,

the information as required in the prescribed bid format. But be that as it may, when we look into the decision contained in the minutes of the Bid",,,,,,,

Evaluation Committee, no reason as such are discernible as to why the tendering authority had deviated from the requirement of clause (j) of the NIB.",,,,,,,

In the absence of any reason being given, we are again unable to determine as to whether the deviation made by the tendering authority would satisfy",,,,,,,

the requirement of a permissible deviation as laid down in Central Coalfields (supra) or as to whether it was arbitrary or discriminatory and made to,,,,,,,

favour a particular bidder. While giving the reasons, the authorities would also have to take note of as to whether the submission of the information",,,,,,,

required under clause (j) in a manner other than in the prescribed format would amount to a curable defect or it can be construed to be an incurable,,,,,,,

defect. In Pradip Dutta Vs. Airport Authority of India and Ors., reported in 2017 (1) GLT 562 in paragraph 18 the concept of curable and incurable",,,,,,,

defects have been discussed. In paragraph 18 of Pradip Dutta (supra) it has been held as under:,,,,,,,

“The concept of curable defects and incurable defects can be examined from the point of view that as to whether the tender had the specified,,,,,,,

requirement at the time of submission of the tender for which the relevant document was required to have been submitted. If on an examination of the,,,,,,,

matter, it can be construed that the said requirement which the document depicts, as the case may be was pre-existing at the time of submission of",,,,,,,

document, such non-submission of the document it can be concluded to be a curable defect. If on the other hand, the requirement that the document",,,,,,,

depicts did not exist at the time when the tendered bid was submitted and such requirement was subsequently obtained such a defect would have been,,,,,,,

construed to be an incurable defect.,,,,,,,

In view of the above, we are inclined to interfere with the minutes of the Bid Evaluation Committee dated 18.06.2020 in declaring the technical bid",,,,,,,

of the respondent No.4 to be acceptable and by doing so remand the matter back to the Bid Evaluation Committee for a fresh decision on the aspect,,,,,,,

as to whether the submission of the completion certificate/up to date progress of the work by the respondent No.4 in a manner other than the,,,,,,,

prescribed bid format would be an acceptable deviation for the tendering authority or such deviation would be fatal so as to declare the respondent,,,,,,,

No.4 to be non-responsive. In doing so, the proposition of law laid down in Central Coalfields (supra) and Pradip Dutta (supra) shall also be borne in",,,,,,,

mind by the tendering authority. We further require the Bid Evaluation Committee to give their reasons for any decision that may be arrived by them.,,,,,,,

As the minutes of the Bid Evaluation Committee meeting dated 18.06.2020 has been interfered consequently we also interfere with the work order,,,,,,,

dated 08.07.2020 made in favour of the respondent No.4.,,,,,,,

As the allotment of the work in respect of a public work has been interfered we require the Bid Evaluation Committee to take a fresh decision,,,,,,,

within a period of 15(fifteen) days from the date of receipt of a certified copy of this order.,,,,,,,

We are conscious of the fact that this writ petition is being given the final consideration on the day it was moved. However, all the respondents are",,,,,,,

being represented. Further, if we issue notice, and stay the allotment of the work in favour of the respondent no. 4 by forming a view that a prima",,,,,,,

facie case had been made out, the progress of a public work would suffer, and on the other hand, if we issue notice without there being any interim",,,,,,,

order, a situation would result where there is a possibility that a contractor who, may not be fully technically qualified would pursue with the work",,,,,,,

concern without a decision on his technical compatibility. In the circumstance, we are of the view that a final consideration to the writ petition in the",,,,,,,

presence of all the parties in the manner made herein above would better serve the public interest.,,,,,,,

Any reasoned order to be passed shall be communicated to both the petitioner and the respondent No.4 and the work, in question, pursuant to the",,,,,,,

NIB dated 27.04.2020 shall be subject to such reasoned order to be passed. As desired by the petitioner and the respondent No.4, both of them be",,,,,,,

given a personal hearing on a date and time to be fixed by the tendering authority which may be duly intimated. However, we limit the aforesaid",,,,,,,

exercise to be between the petitioner and the respondent No.4 inasmuch as, the other bidders whose bids were rejected are not subject matter of this",,,,,,,

writ petition and nor any grievance has been raised by them against the rejection.,,,,,,,

Writ petition stands disposed of in the above terms.,,,,,,,