Sailen Kumar Sharma vs State Of Assam And 4 Ors.

None appears on behalf of the Petitioner on call. Mr. D. Nath, the learned Senior Government Advocate appears on behalf of the Respondent Nos.1, 2 and 3 and Mr. J. Patowary, the learned counsel appears for the Respondent No. 4.

The instant writ petition was filed by the Petitioner challenging the decision of the Respondent Authorities in rejecting the technical bid of the Petitioner on the ground that the scanned technical document was not attested by the Petitioner i.e the bidder.

It appears from the records that this Court vide an order dated 11/6/2021 while issuing notice observed that the interim order sought for would be considered on 12/7/2021. Till consideration of the said interim order, the Petitioner was entitled to some ad-interim protection and accordingly directed status quo to be maintained as on 11/6/2021 as regards the execution of the work in respect to “construction of a sluice gate at Pandunath Mandir area to check backflow of river Brahmaputra” under the Guwahati East Water Resource Division till 12/7/2021.

It appears that the said interim order was continued from time to time, till 4/1/2022 when this Court fixed the matter for passing orders after 4 weeks. Thereupon the matter was listed before this Court on 30/5/2023, on which date, the learned Senior Counsel appearing on behalf of the Respondent No. 4 drew the attention of this Court to the fact that the Petitioner has suppressed material facts in the writ petition by not disclosing that on 6/6/2021, the EMD was refunded by the Petitioner and the writ petition was filed on 8/6/2021. It was further submitted vide an order dated 13/5/2022 that the Water Resource Department of the Government of Assam have also blacklisted the Petitioner in view of withdrawing 2% of the earnest money of Rs. 9,65,000/- in respect to some other work, which as per the Department was illegal. It is therefore the submission made on 30/5/2023 by the Senior Counsel appearing on behalf of the Respondent No. 4 to the effect that this Court should not entertain the writ petition at the behest of the person who as of now cannot be an eligible tenderer in view of the earnest money deposit having been refunded to him and further the Petitioner has been blacklisted by the Department by an order dated 30/5/2022 which still holds the field. In view of the said submission, this Court therefore granted an opportunity to the counsel who represented the Petitioner to take instructions in the matter, more particularly, in respect to those documents which were placed by the Respondent No.4 and marked with the letters “X” and “Y” respectively. This Court accordingly fixed the matter on 31/5/2023. However, on 31/5/2023 none appeared on behalf of the Petitioner.

Be that as it may, during the course of hearing on 31/5/2023, a question arose as to whether any purpose would be served in deciding the dispute taking into account that the bid validity period had already expired.

The learned counsel appearing on behalf of the Respondent No. 4 submitted that they are inclined to extend the bid validity. However, taking the importance of the said aspect, this Court directed the matter to be listed on 1/6/2023 thereby giving an opportunity to the Respondent No. 4 to place the said aspect by way of an affidavit. When the matter was listed on 1/6/2023, the Respondent No. 4 has submitted an affidavit.

Mr. D. Nath, the learned Senior Government Advocate appearing on behalf of the Respondent Nos. 1, 2 and 3 pointed out that the said affidavit was ambiguous. Under such circumstances, this Court further permitted the learned counsel appearing on behalf of the Respondent No. 4 to file an additional affidavit which has been filed today. It appears from the said affidavit at Paragraph No. 2 that the Respondent No. 4 was agreeable to execute the work in question as per its bid submitted pursuant to the NIT dated 30/1/2021.

In the backdrop of the above prelude, let this Court therefore takes into account as to whether the power of judicial review needs to be exercised in the present facts of the case.

The reason why the Petitioner’s technical bid was rejected can be seen from Annexure-9 to the writ petition wherein it is shown that the scanned technical document was not attested by the bidder. It is further apparent from the perusal of the affidavit-in-opposition as well as the additional affidavit in opposition filed by the Respondent No. 2, wherein it was stated that not only the Petitioner did not submit the attested scanned technical documents but also the bids so submitted were contrary to Clauses 17 and 18 of the Instructions to Bidders(ITB). It was mentioned that it was the requirement that the hard copy so submitted and the soft copy so uploaded should be a replica of each other. However, in the Online technical bid submitted by the Petitioner, it had 88 pages, that too, without any pagination, whereas the hard copy of the technical bid submitted by the Petitioner contained 60 pages and the same were paginated from 1 to 57 apart from 2 pages of index and one copy of the challan. It is therefore the case of the Respondents–Water Resource Department that not only the scanned attested technical bid was uploaded, but the hard copy of the technical bid so submitted and the soft copy so uploaded by the Petitioner differed. The learned Senior Government Advocate relying upon the judgment of the Supreme Court in Afcon Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation Ltd reported in (2016) 16 SCC 818 submitted that as the tendering authority who are the Authors of the NIT is of the opinion that the scanned copy of the technical bid submitted online has also to be attested, that interpretation of the tender document even if not acceptable to this Court, but that by itself cannot be a reason for interfering with the award of the contract or rejection of the technical bid of the Petitioner more so when the Petitioner had failed to show any discrimination or arbitrariness on the basis of such interpretation.

The learned Sr. Govt. Advocate appearing on behalf of the Respondents, Mr. D.Nath further drew the attention of this Court to the recent judgment of the Supreme Court in the case of Tata Motors Ltd. Vs. Brihan Mumbai Electric Supply and Transport Undertaking (Best) & Ors. reported in 2023 SCC Online SC 671 and referred to Paragraph Nos. 52, 53 and 54 wherein the Supreme Court had observed that the Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer unless something very gross or palpable is pointed out.

I have heard the learned counsels appearing on behalf of the Respondents. Before analysing and adjudicating the contentions advanced by the learned counsels for the Respondents, this Court finds it relevant to note that on 30/5/2023, the Petitioner was duly represented. However, when the question was raised as regards suppression of material facts as well as blacklisting, the Petitioner choose note to appear. Be that as it may, as the writ petition was pending since long and there were interim orders passed thereby directing to maintain status quo and the project involved therein involves public interest, this Court have chosen to decide the issue raised on merits also.

From the facts above mentioned, it is clear that the Petitioner did not submit the entire technical documents online with attestation. The bids of the Petitioner which were both in online mode and offline mode were produced during the course of hearing. From the said records produced, it was apparent that some of the pages in the online mode were not attested. Further to that, the online bid contained 88 pages which were not paginated whereas the offline bid contained 60 pages which were paginated along with index. Therefore, it cannot be said that the online bid and the offline bid were one and the same. The authorities who are the authors of the NIT have interpreted that there is a requirement that the online technical bid also should be attested. Sans any discrimination shown by the Petitioner, the scope of judicial review is limited. In that regard, this Court finds it relevant to take note of the observations of the Supreme Court in the case of Tata Motors (supra) at Paragraph Nos. 52, 53 and 54 of the said judgment which are reproduced hereinunder :

“52. Ordinarily, a writ court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer unless something very gross or palpable is pointed out. The court ordinarily should not interfere in matters relating to tender or contract. To set at naught the entire tender process at the stage when the contract is well underway, would not be in public interest. Initiating a fresh tender process at this stage may consume lot of time and also loss to the public exchequer to the tune of crores of rupees. The financial burden/implications on the public exchequer that the State may have to meet with if the Court directs issue of a fresh tender notice, should be one of the guiding factors that the Court should keep in mind. This is evident from a three-Judge Bench decision of this Court in Association of Registration Plates v. Union of India, reported in (2005) 1 SCC 679.

The law relating to award of contract by the State and public sector corporations was reviewed in Air India Ltd. v. Cochin International Airport Ltd., reported in (2000) 2 SCC 617 and it was held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It was further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process, the court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should interfere.

As observed by this Court in Jagdish Mandal v. State of Orissa, reported in (2007) 14 SCC 517, that while invoking power of judicial review in matters as to tenders or award of contracts, certain special features should be borne in mind that evaluations of tenders and awarding of contracts are essentially commercial functions and principles of equity and natural justice stay at a distance in such matters. If the decision relating to award of contract is bona fide and is in public interest, courts will not interfere by exercising powers of judicial review even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. Power of judicial review will not be invoked to protect private interest at the cost of public interest, or to decide contractual disputes.”

This Court therefore taking into account that the rejection of the bid of the petitioner on the ground that the scanned technical bid did not contain attestation and further as the hard copy as well as the soft copy of the technical bid differed, as already mentioned, is of the opinion that the jurisdiction under Article 226 for judicial review cannot be exercised in the present facts and circumstances of the case. Accordingly, the instant writ petition stands dismissed. In view of the dismissal of the writ petition, the interim order of status-quo stands vacated.

The Respondents in the Water Resource Department shall bring the said tendered work to its logical conclusion at the earliest.