Edifice Engineering vs Public Works Department (Eastern Circle) Government Of West Bengal & Ors.

Tapabrata Chakraborty, J

In view of the express undertaking of the petitioner to comply with all the formalities regarding filing including stamping of the petition immediately upon resumption of normal court business and considering the urgency involved, the application being C.A.N. No.3006 of 2020 is allowed and the writ petition, which has been preferred challenging inter alia a tender process initiated by an e-Tender Notice (in short, the NIT) dated 7th January, 2020 and the decision of the Tender Evaluation Committee (in short, the TEC) dated 20th January, 2020, is taken up for hearing dispensing with the requirements of Rule 26 of the Writ Rules.

Mr. Bose, learned advocate appearing for the petitioner submits that the petitioner is a partnership firm registered under the Indian Partnership Act, 1932 having its registration no. BA 106007. It applied in terms of the NIT and participated in the pre-bid meeting held on 9th January, 2020. Thereafter on 10th January, 2020 an addendum/corrigendum memo was issued. Though the petitioner fulfilled all the eligibility criteria, its name was not included in the list of technically qualified agencies as uploaded on 18th January, 2020. In the remarks column it was inter alia observed that the petitioner did not fulfil the eligibility criteria as per clause 5 and that its partnership deed and the power of attorney were not registered and the prime machineries were not in Kolkata on 18th January, 2020. Aggrieved thereby, the petitioner submitted a representation but the same was rejected by an order passed by the TEC on 20th January, 2020 without granting any opportunity of hearing.

Mr. Bose argues that while passing the impugned order dated 10th January, 2020 the TEC did not even consider the documents uploaded by the petitioner in support of its credentials as detailed in paragraph 11 of the writ petition.

Mr. Bose submits that there can be no dispute that the petitioner is a registered partnership firm, as would be explicit from the certificate issued by the Assistant Registrar of Firms, Mumbai. The power of attorney as uploaded is also not required to be registered.

He argues that the authorities were duly intimated by the petitioner that the primary machineries are lying at Ranchi and the same can be brought to the site within 24 hours. Without considering such statements the TEC declared the respondent no.3 to be the successful tenderer, who quoted a price which is double than that of the price quoted by the petitioner. The TEC also did not take into consideration the CVC guidelines when only one tenderer was found to be eligible. The respondents have proceeded in derogation to the tender conditions with an intent to favour the respondent no.3. In support of such contention reliance has been placed upon the judgment delivered in the case of Classic Builders and Traders Vs. State of West Bengal reported in 2014 (3) CHN 167.

In the NIT, it has categorically been provided that the bidder must be having a registered deed of partnership and a registered power of attorney. The contention of Mr. Bose that the said clause is a non-essential one does not inspire confidence. The deed of amendment and the power of attorney, as uploaded, are notarised documents. It also appears from the records that the petitioner's bid was not abruptly rejected. The issue was deliberated and discussed by the TEC and a reasoned decision was taken. No malafide can be attributed to such action of the authorities and it cannot be said that the authorities have acted in a manner which would benefit a private party at the cost of the authorities.

It is also necessary to remember that the price may not always be the sole criterion for awarding a contract. At times, a higher price for a much better quality can be legitimately paid in order to secure proper performance of the contract and good quality of work. The petitioner has failed to establish any arbitrariness or unreasonableness in the tender process. Furthermore, it appears that the work order was issued in the month of January, 2020 and today we are in the month of April, 2020 and the work pertains to demolition and reconstruction of a bridge which needs to be completed in the interest of the public, as expeditiously as possible. The invitation to tender is in the realm of contract and the scope of judicial review in awarding a contract is very limited. The judgment in the case of Classic Builders and Traders (Supra) is distinguishable on facts.

The Writ Court cannot transpose itself as an appellate authority and decide the tender matter by running a fine tooth-comb over the process to discover which 'i' has not been dotted and which 't' not crossed.

In the said conspectus, I am of the opinion that there is no error in the decision-making process warranting interference of this Court in exercise of its discretionary jurisdiction.

For the reasons stated above, the writ petition is dismissed.

All parties are to act on a server copy of this order.