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Judgment
The dispute in the present appeal is whether words can be added to
the tender document at a later stage, after the bids are received, while
interpreting the document.
The facts are within a narrow compass. The Additional District
Magistrate (G), North 24 Parganas floated an e-tender on 18th April, 2017
inviting bids from "Government/Undertaking/Corporations/Co-operative
Societies/SHG/Clusters/Federations/Food Production Units/NGOs for
preparing and supplying ready to eat (RTE) food in powdered form and
consisting of ingredients mentioned in Clause 1 of the tender document. The
supply of such RTE food was for the consumption of ICDS beneficiaries, that
is, children of the age of six months to six years as morning snacks in
Anganwadi Centres for a period of one year. The ingredients of the RTE food
packets were specified as Bengal Grams (whole roasted) and oats (whole
roasted) in a stipulated proportion, besides sugar to be supplied in "specific
packets". Under Clause 4 of this e-tender notice a tenderer having at least
one year''s experience in supply of similar kind of RTE food with an annual
turnover of more than one crore was eligible to participate in the process.
For self-help groups (SHG) clusters or federations having the infrastructure
of the capability of production of the desired food, the pre-requisite of
experience could be relaxed subject to the verification and satisfaction of the
district authority. Under Clause 6 of the tender document, amongst the
various documents which the tenderer was expected to furnish, were his
credentials which were expected to include work orders in the last one year
for the same type of supply and payment certificates. Clause 12 stipulated
that a sealed packet, containing 100gms of the RTE food mix and sugar,
along with food testing report from a Government approved laboratory was
to be submitted to the District Authority by the tenderers.
The bids were expected to be submitted by 12th May, 2017. The
technical bid was to be opened on 15th May, 2017 and the financial bid on
23rd May, 2017.
The appellant No. 1 bid for the tender as it fulfilled all the requisite
criteria in the e-tender notice. The technical bid of appellant No.1 was
disallowed. It appears that the appellant bid was rejected because the
Appellant No. 1 did not have the experience of supplying RTE food packets
of the "same type" or "similar kind" to the Government. A writ petition was
filed in this Court being W.P. 14863(w) of 2017 challenging this rejection.
The tender process was stayed by the Learned Single Judge till 12th June,
2017 by an interim order. After affidavits were filed by the respective parties
the writ petition was heard and by a judgment dated 19th June, 2017, the
writ petition was dismissed.
Aggrieved by the order of the learned Single Judge dismissing the writ
petition, the appellants have preferred the present appeal.
Mr. Shaktinath Mukherjee, the learned Senior Counsel appearing for
the appellants submitted that a tender document must be strictly
construed. He submitted that when there is no specific criterion in the e-
tender notice that the tenderer must have experience of supplying RTE
packets to Government or Government organisations, the State cannot read
these words into the tender document. He argued that when the document
is not capable of two interpretations, the State cannot alter the rules of the
game after the tender document had been issued only in order to reject the
technical bid of the appellants. He further submitted that even in case of a tender issued by the State acting in its executive capacity, it is incumbent
on the State to comply with the mandate of Article 14 of the Constitution of
India. He has drawn our attention to the judgment in the case of M/s.
Radhakrishna Agarwal and others Vs. State of Bihar and others reported
in 1977 (3) SCC 457 and Monarch Infrastructure Private Limited Vs.
Commissioner, Ulhasnagar Municipal Corporation and others reported in
2000 (5) SCC 287 in support of his submission that there cannot be any
discrimination and arbitrariness on the part of Government between
persons who are similarly situated while accepting the bids. The learned
Counsel then placed reliance on the judgment of Shagun Mahila Udyogik
Sahakari Sanstha Maryadit Vs. State of Maharashtra and Others
reported in 2011 (9) SCC 340 where the Supreme Court had observed that
it cannot be over emphasised that beneficiaries of the ICDS programmes
who are infants from the age group of six months to three years and
pregnant and lactating mothers would require energy food and verified
blended mixtures and it is desirable to have fully automated plants to
provide such food. The learned Counsel pointed out that the plant of the
appellant No.1 being automated avoids the use of any person in most of the
processes and therefore Appellant No.1 is highly suited for supplying RTE
food packets as morning snacks for children. He submitted that the
rejection of the appellants'' bid for supply of RTE food packets as morning
snacks is unsustainable.
The learned Additional Advocate General submitted that while
interpreting the tender document one must adopt a purposive construction. The learned Counsel has relied on the judgements in the case of NICCO
Corporation Limited Vs. Cable Corporation of India Limited and others
reported in 2008 (1) CHN 567 in support of this submission. His next
submission was that the experience required for supplying "similar kind" of
RTE food to Government and Government organisations is essential as the
food packets were meant for the consumption of the ICDS beneficiaries. The
learned Counsel then submitted that even assuming the appellant did have
the experience of supplying food for ICDS programmes, the food packets
which were required to be supplied under the tender document required a
mixture of Bengal Gram, oats and sugar in specified quantities. He drew our
attention to the various documents submitted by the appellant No.1 with its
technical bid. According to him none of these documents suggest that it had
the experience to supply the mixture of the ingredients required under the
tender document. Learned Counsel pointed out that although the appellants
have been supplying Bengal Gram there is no indication in any of the
documents submitted that they have the wherewithal to supply oats.
Therefore according to him when the credentials required in the tender
document under 6(g) mentioned that the work orders obtained by the
tenderer in the last one year for supply of the "same type" of food packets,
the Court cannot ignore the same. The Learned Counsel submitted that the
appeal deserved to be dismissed.
Mr. Bandopadhyay, the Learned Counsel appearing for respondent
Nos.5 to 7, those successful in the technical bid, supported the arguments
of Mr. Mazumdar, the learned Additional Advocate General. The learned Counsel submitted that unless the appellants demonstrate that there is any
perversity in the order of the Learned Single Judge the appeal should not be
entertained. According to him, the Learned Single Judge for cogent reasons
has dismissed the writ petitions and therefore, the appeal should not be
entertained. Mr. Bandopadhyay relied on Shri Sitaram Sugar Company
Limited and another Vs. Union of India and others reported in 1990 (3)
SCC 223 to fortify his submission. The learned Counsel has also relied on
the judgment in the case of Bakshi Security and Personnel Services
Private Limited Vs. Devkishan Computed Private Limited and others
reported in 2016 (8) SCC 446 in support of his submission that where the
tender committee has, for reasons which are genuine, evaluated the tenders
and rejected the technical bid of the appellants it is not for the Courts to
judicially review such administrative action unless the same is in public
interest. According to him, the rejection of the technical bid of the appellants
does not raise any public interest and therefore, the learned Single Judge
was right in dismissing the writ petition.
We have given our anxious consideration to the submissions made at
the Bar and the material on record before us. It must be remembered that
the RTE food packets are required for providing morning snacks at the
Anganwadi Centres. The consumers of these food packets will be the
beneficiaries of the ICDS programme namely children from the age of six
months to six years. Obviously, therefore, the best quality food would have
to be provided. Such food, as observed by the Supreme Court in Shagun
Mahila Udyogik Sahakari Sanstha Maryadit (supra) should be processed, as far as possible, in automated machines so that the possibility of the
contamination of the food is excluded. There is no dispute that the
appellants'' plant is automated, although this factor is not a prerequisite for
being a successful bidder.
Let us now examine whether the appellant No.1 fulfils the criteria
mentioned in Clause 4 of the tender document. Clause 4 reads as under:
"The tenderers having at least 1 year''s experiences in supply of similar kind
of RTE food with annual turnover of more than one (1) crore are eligible to
participate in the tender. However, for the SHG/Clusters or federations having
due infrastructure and capability of production of the desired food, the pre-
requisite of experience may be relaxed subject to the verification and
satisfaction of the District Authority."
Thus, the tenderer is expected to have experience in supply of "similar kind"
of RTE food. It is evident from the material on record that the appellants
have been supplying similar food packets to intermediaries who then supply
them to ICDS beneficiaries. There is no dispute that the annual turnover of
the appellant No.1 is more than one crore. The words used in Clause 4 are
"supply of similar kind of RTE food". There is no mention in this clause that
the bidder should have experience in supplying such food to a specific
organisation. The State is now reading into this phrase "supply to the
Government". It is not possible to accept this contention on behalf of the
State. The tender document must be read strictly. Clause 4 in our opinion
does not lend itself to the interpretation sought to be advanced by the
Government. Even if we accept Mr. Mazumder''s contention that there should be a purposive construction, the words "to the Government" cannot
be read into Clause 4 as we would then be doing violence to the meaning of
Clause 4. When the tender document is explicit in disclosing the eligibility
criteria no new condition can be introduced at the whim of the State.
In Clause 6(g) the credentials include the work order in the last year
for the "same type of supply" and payment certificates. Mr. Mazumder has
sought to argue that the words "same type" used in 6(g) and "similar kind"
used in Clause 4 would mean that a bid can be accepted only if a tenderer
has the experience of supplying RTE food packets containing the identical
ingredients specified in the tender document. Again this submission of the
learned Counsel in restricting the meaning of the words "similar kind" and
"same type" is untenable. "Similar kind" does not mean "identical". The
Concise Oxford English Dictionary 11th Edition defines "similar" to mean "of
the same kind in appearance, character, or quality, without being identical".
Thus, the argument of Mr. Mazumder that similar should mean identical
food is without merit. We have, on perusal of the documents before us,
noticed that the appellant has had the experience of supplying mixtures of
RTE packets containing roasted powder of Bengal gram, ground nut, wheat
and sugar to various entities. Certificates have been produced indicating
that such supply to these entities have been satisfactory. A chart has been
annexed to the affidavit filed by the State before the learned Single Judge
indicating the names of the bidders whose technical bids have been
accepted. One of the columns mentions the names of the bidders who had
credentials for supply of "Chattu (Porridge)" for the last one year though that food item is not mentioned in the tender document. From the documents on
record it is apparent that the appellant No.1 has been supplying mixtures of
RTE packets on the basis of orders placed by various organisations and in
fact most of them are for ICDS projects. The documents indicate that the
appellants have also been supplying the RTE food packets to the ICDS
projects directly on the instructions of the intermediaries. Therefore, it is
difficult to accept the argument on behalf of the State that the appellants
had no experience to supply similar kind of RTE food. Furthermore, the
tender document does not stipulate that the bidder should have been
supplying such food packets for one year immediately prior to the tender
document. Clause 4 only stipulates that the bidder should have one year''s
experience, not necessarily during the past one year.
The argument of Mr. Mazumder is that Clause 6(g) stipulates that the
prior work orders issued to the bidder should be for the "same type" of food
meaning identical category of food. Now, the category of food required to be
supplied was morning snacks. The documents on record amply indicate that
the appellants did have the experience of one year of supplying the identical
category of food packets that is morning snacks containing ready to eat food
in powdered form. The ingredients in the RTE packets supplied by the
appellants earlier may not have comprised of oats as well, required by the
tender document. But that cannot disqualify the appellants if the tender
document is interpreted by applying its true meaning and proper
construction.
In our opinion, therefore, the rejection of the technical bid of the
appellant was erroneous. Their bid must be taken into consideration. The
impugned judgement of the learned single judge is quashed and set aside.
Accordingly, the appeal is allowed. The application for stay A.S.T.A 28
of 2017 is disposed of as infructuous. There is no order as to costs.
Urgent certified photocopies of this judgment, if applied for, be given
to the learned Advocates for the parties upon compliance of all formalities.