M/S Friend Enterprise and Anr. Vs M/S Consulting Engineer (Ng) and 8 Ors.

¶1

Page No.# 1/39

¶2

GAHC010208432024

¶3

2025:GAU-AS:2203-DB

¶4

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

¶5

Case No. : WA/354/2024

¶6

M/S FRIEND ENTERPRISE AND ANR

¶7

REPRESENTED BY ITS PROPRIETOR, SRI BHASKARJYOTI BARUAH, HAVING ITS OFFICE AT MORANKARI HANDIQUE GAON, NAMTI DOLL, SIVASAGAR, DISTRICT- SIVASAGAR, ASSAM.

¶8

2: SRI BHASKARJYOTI BARUAH S/O SRI CHANDRESWAR BARUAH RESIDENT OF MORANKARI HANDIQUE GAON NAMTI DOLL SIVASAGAR DISTRICT- SIVASAGAR ASSAM.78568

¶9

VERSUS

¶10

M/S CONSULTING ENGINEER (NG) AND 8 ORS A PARTNERSHIP FIRM BEING REPRESENTED BY ITS PARTNER, MS. PRIYANKA DAS, AGED ABOUT 34 YEARS, HAVING ITS REGISTERED OFFICE AT- HOUSE NO. 46A, SIMANTA PATH, P.O.- PILINGKATA, BASISTHA CHARIALI, GUWAHATI- 781029, KAMRUP(M), ASSAM.

¶11

2:PRIYANKA DAS WIFE OF SRI PRANAB DAS RESIDENT OF HOUSE NO. 46A BASISTHA CHARIALI DISTRICT- KAMRUP(M) ASSAM PIN- 781029

¶12

3:SURESH KUMAR DUTTA SON OF LATE TIRTHA NATH DUTTA RESIDENT OF GARAMUR NEAR JORHAT ENGINEERING COLLEGE P.O.- GARAMUR P.S.- JORHAT DISTRICT- JORHAT PIN- 785007.

¶13

4:THE STATE OF ASSAM REPRESENTED BY THE PRINCIPAL SECRETARY DEPARTMENT OF ANIMAL HUSBANDRY AND VETERINARY ASSAM SECRETARIAT (CIVIL) DISPUR GUWAHATI- 781006

¶14

5:THE JOINT SECRETARY TO THE GOVERNMENT OF ASSAM DEPARTMENT OF ANIMAL HUSBANDRY AND VETERINARY ASSAM SECRETARIAT (CIVIL) DISPUR GUWAHATI- 781006.

¶15

Page No.# 2/39

¶16

6:THE SECRETARY CUM DIRECTOR OFFICE OF THE DIRECTOR ANIMAL HUSBANDRY AND VETERINARY DEPARTMENT CHENIKUTHI GUWAHATI ASSAM PIN- 781003

¶17

7:THE TENDER EVALUATION COMMITTEE REPRESENTED BY THE CHAIRMAN.

¶18

8:M/S MEDICOS AND ENGINEERING REPRESENTED BY ITS PROPRIETOR MR. FOIZUDDIN AHMED HAVING ITS OFFICE AT HATIPOTI P.S.- GELAKI DISTRICT- SIVASAGAR ASSAM.

¶19

9:JAYANTA KHAUND PROPRIETOR K.B. ROAD WARD NO. 11 P.S.- NORTH LAKHIMPUR DISTRICT- NORTH LAKHIMPUR ASSAM

¶20

Advocate for the Petitioner : MR H K DAS, MS D MAHANTA,MR N K SARMA

¶21

Advocate for the Respondent : MR R SINGHA, MS M BARMAN(R-8),MS P RABHA(R-8),MRS. A GAYAN (R-8),M NARZARY(R-9),DR. J. D. KHAUND (R-9),SC, A.H and V. DEPT.,FOR CAVEATOR

¶22

Linked Case : WA/27/2025

¶23

THE STATE OF ASSAM AND 3 ORS. REPRESENTED BY THE PRINCIPAL SECRETARY DEPARTMENT OF ANIMAL HUSBANDRY AND VETERINARY ASSAM SECRETARIAT (CIVIL) DISPUR GUWAHATI- 781006.

¶24

2: THE JOINT SECRETARY TO THE GOVERNMENT OF ASSAM DEPARTMENT OF ANIMAL HUSBANDRY AND VETERINARY ASSAM SECRETARIAT (CIVIL) DISPUR GUWAHATI- 781006.

¶25

3: THE SECRETARY CUM DIRECTOROFFICE OF THE DIRECTOR ANIMAL HUSBANDRY AND VETERINARY DEPARTMENT CHENIKUTHI GUWAHATI ASSAM PIN- 781003

¶26

4: THE TENDER EVALUATION COMMITTEE REPRESENTED BY THE CHAIRMAN.

¶27

VERSUS

¶28

M/S CONSULTING ENGINEER (NG) AND 4 ORS A PARTNERSHIP FIRM BEING REPRESENTED BY ITS PARTNER MS. PRIYANKA DAS AGED ABOUT 34 YEARS HAVING ITS REGISTERED OFFICE AT- HOUSE NO. 46A SIMANTA PATH P.O.- PILINGKATA BASISTHA CHARIALI

¶29

Page No.# 3/39

¶30

GUWAHATI- 781029 KAMRUP(M) ASSAM.

¶31

2:PRIYANKA DASWIFE OF SRI PRANAB DAS RESIDENT OF HOUSE NO. 46A BASISTHA CHARIALI

¶32

DISTRICT- KAMRUP(M) ASSAM PIN- 781029

¶33

3:M/S FRIEND ENTERPRISE REPRESENTED BY ITS PROPRIETOR SRI BHASKARJYOTI BARUAH

¶34

HAVING ITS OFFICE AT MORANKARI HANDIQUE GAON NAMTI DOLL SIVASAGAR DISTRICT- SIVASAGAR ASSAM

¶35

4:M/S MEDICOS AND ENGINEERINGREPRESENTED BY ITS PROPRIETOR MR. FOIZUDDIN AHMED HAVING ITS OFFICE AT HATIPOTI P.S.- GELAKI DISTRICT- SIVASAGAR ASSAM.

¶36

5:JAYANTA KHAUND PROPRIETOR K.B. ROAD WARD NO. 11 P.S.- NORTH LAKHIMPUR DISTRICT- NORTH LAKHIMPUR ASSAM

¶37

¶38

Advocate for : MITHUMONI KATAKY

¶39

Advocate for : appearing for M/S CONSULTING ENGINEER (NG) AND 4 ORS

¶40

BEFORE

¶41

HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

¶42

Date of hearing : 20.02.2025

¶43

Date of Judgment & Order : 04.03.2025

¶44

JUDGMENT & ORDER (CAV)

¶45

(N. Unni Krishnan Nair, J.)

¶46

Heard Mr. Hridip Kumar Das, learned counsel, appearing on behalf of the appellant in WA No. 354/2024. Also heard Mr. R. Singha, learned counsel, and Ms. M. M. Kataky, learned standing counsel, Animal Husbandry & Veterinary Department, appearing on behalf of their respective respondents in WA No. 354/2024. None has entered appearance on behalf of respondents No. 8 & 9.

¶47

Heard Ms. M. M. Kataky, learned standing counsel, Animal Husbandry

¶48

Page No.# 4/39

¶49

& Veterinary Department, appearing on behalf of the appellants in WA No. 27/2025. Also heard Mr. R. Singha, learned counsel, and Mr. H. K. Das, learned counsel, appearing on behalf of their respective respondents in WA No. 27/2025. None has entered appearance on behalf of respondents No. 4 & 5.

¶50

2. Since the facts involved in the above-noted writ appeals are identical and in the appeals, the challenge presented being to the judgment & order, dated 23.09.2024, passed by the learned Single Judge in WP(c)3526/2024; both the writ appeals were heard together and are disposed of by this common judgment & order.

¶51

3. The appellants, herein, in above-noted writ appeals by way of instituting the present intra-Court appeals, have presented a challenge to the judgment & order, dated 23.09.2024, passed by the learned Single Judge in WP(c)3526/2024, allowing the said writ petition by interfering with the decision of the Tender Evaluation Committee declaring the bid of the respondent No. 1/writ petitioner in both these appeals, to be nonresponsive.

¶52

4. The brief facts requisite for adjudication of the issue arising in these writ appeals, is noticed as under:

¶53

The Director, Animal Husbandry and Veterinary Department, had floated a Notice Inviting Tender(NIT), dated 23.02.2024, inviting bids for the work of construction of new Multicare Hospital including Logistics at Joysagar in Sibsagar District under SOPD-G Scheme.

¶54

Page No.# 5/39

¶55

In pursuance of the Notice Inviting Tender(NIT), dated 23.02.2024, the appellant in WA 354/2024, along with respondent No. 1/writ petitioner and others, had submitted their respective bids. The said Notice Inviting Tender(NIT) laid down a 2-stage evaluation of the bids. Accordingly, the technical bid of the bidders were considered at the 1^st stage by the Tender Evaluation Committee and on such consideration while the bid of the appellant, herein, in WA 354/2024, along with that of respondents No. 8 & 9, therein; were found to be responsive; the bid of the respondent No. 1/writ petitioner was found to be non-responsive on the ground that the labour license as submitted by the respondent No. 1/writ petitioner was valid for Kamrup(Metro) District only.

¶56

Being aggrieved by the decision of the Tender Evaluation Committee in holding its bid to be non-responsive; the respondent No. 1/writ petitioner had assailed the said decision by way of instituting before the writ Court a writ petition being WP(c)3526/2024.

¶57

The learned Single Judge, upon considering the issues arising in the said writ petition as well as upon hearing the parties to the proceeding, was pleased vide judgment & order, dated 23.09.2024, in WP(c)3526/2024, to allow the writ petition by interfering with the decision of the Tender Evaluation Committee insofar as, the technical bid of the respondent No. 1/writ petitioner, was so considered. On such interference being made; matter was relegated to the Bid Evaluation Committee for arriving at a fresh decision in terms of the determination made in the said judgment & order, dated 23.09.2024.

¶58

Page No.# 6/39

¶59

The operative portion of the said judgment & order, dated 23.09.2024, passed by the learned Single Judge in WP(c)3526/2024, being relevant, is extracted hereinbelow:

¶60

“ 22. Thus, it is clear from the aforesaid provision that requirement of a labour license is an essential qualification under Clause 2.A.(iii). From the aforesaid discussion, it is also clear that in terms of Clause E.35, the evaluation shall be confined only to the requirement under Clause E.35.2.(a) to (e). Clause E.35.2. (e) deals with the additional criteria. The additional criteria are enumerated in Clause 2.A.(iii) and prescribes amongst other “a labour license”. However, Such clause does not specify any characteristic of such license, though, from the affidavit of the employer it is seen that such license is a contract labour license.

¶61

23. Be that as it may, from the clauses enumerated hereinabove, there is no doubt in the mind of this Court that contract labour license is not only an essential qualification but the same is also a part of evaluation of Bid process. There is nothing under the ITB which suggest any specification and/or characteristic of a labour license except suggesting in Clause 2.A.(iii) under Section IV, that labour license is a qualifying criteria without prescribing that such labour license shall be treated as valid in a situation as projected by the employer in their affidavit. In fact, so far relating to the other licenses such as Electrical License, Anti Termite License, Fire Fighting License, a specific questionnaire is put in the respective forms under Section VI to the effect that whether the bidder is having such certificate and if not, the same is to be submitted at the time of signing of the agreement. Thus, the aforesaid licenses which are prescribed under Section VI and necessary for bid evaluation, can also be submitted after contract is awarded and at the time of signing of such contract.

¶62

24. There is no quarrel to the proposition of law as urged by the learned Counsels for the respondents that an employer of a project having authored the tender document, is the best person to understand and appreciate its requirement and interpret his document and that the constitutional Courts must defer to such understanding and appreciation of the tender document except when there is malafide or perversity in the understanding or appreciation or in the application of terms of the tender condition. It is equally well settled that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting a statute and that the High Court should not interfere when there are differences in contractual interpretation. In the case in hand, the respondent employer is interpreting a contract labour license to be valid, for the purpose of the tender in question, when it is issued by the regional licensing authority under whose jurisdiction the contract is to be executed or issued by a licensing authority, who has jurisdiction to issue license for whole of the State. Thus, they are treating all the valid licenses issued by the licencing authorities, other than the aforesaid two licensing authorities to be invalid. In short, a valid license under the Act 1970 and Rules, 1971 is being interpreted to be invalid for the purpose of their contract. Generally, such interpretation should not be interfered in the exercise of power of judicial review. When there are differences in contractual interpretation. However, this Court cannot ignore the fact that respondent authorities had not disclosed such intention in the ITB.

¶63

Page No.# 7/39

¶64

25. Thus, even if, it is assumed that the employer is at liberty to interpret a valid license issued under the Act, 1970 and Rules,1971 to be invalid, however, when they intend to do so, to have a fair play and transparency and credibility of the bidding process, they will have to disclose such a criteria inasmuch as for ensuring transparency and fairness, all evaluation criteria are required to be explicitly explained in the tender document more particularly, for the reason that the employers have interpreted an otherwise valid license issued by a statutory authority to be an invalid license. Such disclosure would have reinforced the importance of adherence to principles of equality and non discrimination in public procurement. In the case of Dutta Associates Pvt. Ltd. –Vs- Indo Merchatiles Pvt. Ltd. and Ors. reported in 1997 (1) SCC 53, the Hon’ble Apex Court held that all criteria for evaluating bid must be clearly mentioned in tender notice. Any undisclosed or hidden criteria that affect the outcome of the bidding process, is unfair and contrary to the principles of transparency and credibility. It is important to record that Hon’ble Apex Court in Michigan Rubber (India) Limited –Vs- State of Karnataka and Others reported in (2012) 8 SCC 216 at paragraph 23 held that actions of the State are amenable to the judicial review so far the same relates to contractual matter, only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. Therefore, in such a situation, this Court shall not be powerless to interfere with the decision making process when it is arbitrary and unfair.

¶65

26. Another important aspect of the matter having relevance and inextricably connected with the opinion expressed in the forgoing paragraphs, in the considered opinion of this Court, is the nature of license that can be issued under the scheme of the Act, 1970 and the Rules, 1971. Such a licence is contract/work specific and therefore, a separate license shall required to be issued under the statute to the bidder, who will be engaged in the contract by the principal employer after completion of the bidding process and therefore, the labour license insisted under the ITB can be a qualifying criteria but cannot be the labour license on the basis of which the contract in question can be actually executed. Therefore, insistence of such clause can at best be for the purpose of ascertaining whether the bidder is having expertise in engaging contract labour by following the prescription under the Act, 1970 and the Rules, 1971, which can have a bearing on the responsiveness of the bid. The basis of such finding of this Court is being dealt with in the following paragraphs.

¶66

27. The Act, 1970 was enacted to regulate the employment of contract labour in certain establishments and to provide for its abolition in certain circumstances and for matters connected therewith. The Act is made applicable to every establishment and to every contractor when they employ contract labour for certain period. In terms of the definition given under the Act, 1970, an establishment is any office or department of government or local authority or any place where any industry, trade, business, manufacture or occupation is carried on. Thus, in the case in hand, the establishment shall mean either the District office of Animal Husbandry and Veterinary Department, Sivasagar or the Directorate of Animal Husbandry & Veterinary Department, Government of Assam. Principal employer has been defined, in relation to any office or department of government or a local authority, to be the Head of that office or the Department or any other office as the government or the local authority may specify on this behalf. In the case in hand, there is no specific notification on this behalf and therefore, the principal employer shall mean the Animal Husbandry and Veterinary Department of the State of Assam.

¶67

28. Section 12 of the Act, 1970 debars the contractor under this Act, to undertake or execute any work through contract labour except in accordance with the license

¶68

Page No.# 8/39

¶69

issued in this behalf by the licensing officer.

¶70

29. In terms of Section 35 of the Act, 1970 the State of Assam has enacted the Rules, 1971. Chapter-III of the Rules, 1971 deals with registration and licensing.

¶71

30. In terms of Rule 21 of the Rules, 1971 application for a license is to be filed by the contractor in Form-IV before the Licensing Officer of the area, in which the establishment is located, in relation to which he is a contractor. Such application is required to be accompanied by a certificate of the principal employer in Form-V and a licence is to be issued in Form -VI. The Form IV and the relevant portions of Form V and VI are quoted herein below:-

¶72

“ FORM-V

¶73

FORM OF CERTIFICATE BY PRINCIPAL EMPLOYER

¶74

_Certified that I have engaged/propose to engage the applicant the applicant…………………….(name of the contractor) as a contractor in my establishment. I undertake to be bound by all the provisions of Contract Labour (Regulation and Abolition) Act, 1970 and Contract Labour (Regulation and Abolition) Assam Rules, 1971 in respect of the employment of Contract Labour by the applicant in my establishment. Place:_*

¶75

Date:

¶76

Signature of Principal Employer:

¶77

Name and Address of the Establishment”.

¶78

“ FORM-IV

¶79

See Rule 21(1)]

¶80

APPLICATION FOR LICENSE

¶81

3. Particulars of establishment where contract labour is to be employed:-

¶82

(a) Name and Address of the establishment;

¶83

4. Particulars of contract labour-

¶84

(b)Duration of the proposed contract work (give particulars of proposed date of commencing and ending); (c) Name and address of the Agent or Manager of Contractor at the work site;

¶85

7. Whether the contractor has worked in any other establishment within the past five years. If so, give details of the Principal Employer, establishments and nature of work.

¶86

8. Whether a certificate by the Principal Employer in Form V is enclosed”.

¶87

“ FORM-VI

¶88

[See Rule 25 (1)]

¶89

Government of Assam.

¶90

Office of the Licensing Officer,

¶91

Sl No.

¶92

Licence No. Date. ………. Fee Paid Rs………….

¶93

LICENCE

¶94

1. ………..

¶95

2. This licence is for doing the work of …………………….. (nature of work to be indicated) in the establishment of ……………………. (name of the principal employer to be indicated)

¶96

Page No.# 9/39

¶97

at …………………………..(place of work to be indicated)

¶98

3. ……….”

¶99

31. It is seen from the aforesaid quoted and highlighted provision of Form IV that the application for license seeks disclosure of the particulars of the contract, which includes the nature of work in which the contract labour is employed or is to be employed in the establishment, duration of the proposed contract work with proposed date of commencement and end. The name of the manager at the worksite is also to be declared. Another important aspect is that it is to be declared by the contractor whether the contractor has worked in any other establishment within the last five years, and if so to give the details of the principal employer, establishment and nature of works. From the Form-V, it is seen that a certification can be granted when a person is either already engaged as contractor in the establishment by the principal employer or principal employer is proposing to engage the applicant as a contractor in the establishment. Form VI, the license also clarifies that in the license, the nature and the place of the work, period of such work and the name of the principal employer is to be indicated.

¶100

32. Therefore, in the considered opinion of this Court, a license can be granted when the contractors have already been engaged or proposed to engage a contractor and relatable to the work contract.

¶101

33. Rule 32 of the Rules, 1971 shall also support such conclusion inasmuch as Rule 32 prescribes that when an establishment requires employment of contract labours immediately, and such employment is estimated to last not more than 15 days, temporary licenses can be granted by the licensing officer having jurisdiction over the area in which the establishment is situated.

¶102

34. To summarize, under the scheme of the Act, 1970 and Rules, 1971, a labour license can be granted against a specific contract. The certification issued by the employer requires the name of the specific contract. The application to be filed by the contractor for license, also requires the specification of the work and duration. Therefore, in terms of the Act, 1970, a license shall be required in the case in hand after the work is awarded or after bidder is selected i.e. when the employer proposes to engage the successful bidder or after they engage the contractor. On the basis of such certification (Form V), the contractor is to apply for a labour license giving details of the work in question and the period etc. This Court is also of the opinion that in the aforesaid scheme of the Act, 1970 and the Rules, 1971, the contract license sought under the tender condition cannot be but for the reason to examine and satisfy the employer themselves that the concerned bidder has the capability to engage contract labour and can provide the labour licence for the purpose of utilizing it in the contract. Mr. D. Nath, learned counsel has also expressed his opinion that such condition of license might be incorporated for the purpose of ascertaining that the Bidder is having experience of engaging contract labour with valid Licence. That being the position, it will be further discrimination to insist upon a specific kind of licence without any disclosure to that effect in the ITB.

¶103

35. While acknowledging the principle that the award of contract, like the present one, is essentially a commercial transaction and therefore, the employer can choose its own method to arrive at a decision, in the given facts and findings recorded

¶104

Page No.# 10/39

¶105

hereinabove, this Court is of the unhesitant view that though the employer shall be within its domain to interpret a document which suits their consideration, however, such exercise of power should not lead to violation of Article 14 of the Constitution of India.

¶106

36. To summarize, and therefore, in the case in hand, though the employer is within its competence to accept only the certificate issued by the Central authority or the Regional authority of the region where work is to be executed, however, such condition ought to have been disclosed in the tender itself, more particularly for the reason that firstly, the license issued by the authority to the petitioner is also a valid license in terms of the Act, 1970 and the Rules, 1971 and secondly, such a valid license is proposed and/ or decided to be invalid by the employer. Another aspect of the matter is that a contract license is required to be issued for the work in question under the scheme of the Act, specific to the work and therefore, the ground of rejection is not sustainable being arbitrary and unreasonable and there is perversity in appreciation of the provisions of the Act, 1970 and the Rules, 1971 and above that, such criteria in the considered opinion of this Court, is a hidden criteria which was not disclosed to all the contractors. The action of the respondent in declaring subsequently that such license shall be an invalid license without disclosure of such intention is against the principle of Article 14 of the Constitution of India inasmuch as Article 14 demands fairness in action by the State. Non-arbitrariness is the essence, substance and heartbeat of fair play.

¶107

37. As regards the exercise of power under the tender for calling the historical document, this Court do not find any infirmity for calling such historical document for the reason that not only the Evaluation Committee is having power to call such historical document but also the documents called are past documents issued by the instrumentalities of State and admittedly the petitioner did not have any historical document as regards contract license issued by licensing authorities, which is relatable either to the whole of the State or to the place where the contract is being executed.

¶108

38. For the reasons recorded herein above, it is held that the impugned decision to declare the Bid of the petitioner to be non-responsive for want of a valid Contract Labour license is arbitrary, unfair and unreasonable and therefore, violative of the petitioner’s right under Article 226 of the Constitution of India.

¶109

39. Accordingly, the writ petition stands allowed by setting aside and quashing the impugned decision dated 01.07.2024 of the Evaluation Committee. Matter is now relegated to the Bid Evaluation Committee to take a fresh decision in terms of the determination made hereinabove. Parties to bear their own costs.”

¶110

4. Mr. Das, learned counsel for the appellant in WA 354/2024, assailing the judgment & order, dated 23.09.2024, passed by the learned Single Judge in WP(c)3526/2024, has submitted that the terms and conditions of the Notice Inviting Tender(NIT), dated 23.02.2024, having mandated

¶111

Page No.# 11/39

¶112

furnishing a valid labour license as a qualification criteria for evaluation of the bids and the same when read with the provisions of Clause 1 of Section IV of the said Notice Inviting Tender(NIT); the employer having required the labour license so mandated to be in connection with work, in question; the bidder was required, either, to produce a labour license covering the District of Sivasagar, and/or, a labour license covering the whole of the State of Assam.

¶113

5. Mr. Das, learned counsel, has further submitted that the labour license furnished by the respondent No. 1/writ petitioner along with his bid, was issued by the licensing authority having jurisdiction within the Kamrup(Metro) District only; the same was specifically issued for works within Kamrup(Metro) District only. Mr. Das, learned counsel, has also submitted that the Tender Evaluation Committee on noticing that the labour licenses as submitted by the respondent No. 1/writ petitioner being only with respect to Kamrup(Metro) District; had rightly declared the bid of the respondent No. 1/writ petitioner to be non-responsive to the conditions of the Notice Inviting Tender(NIT), dated 23.02.2024.

¶114

6. Mr. Das, learned counsel, has submitted that the labour licenses in the State, are issued, either, covering the specific District and/or for the whole of the State of Assam and the license issuing authorities are also different. Mr. Das, learned counsel, has further submitted that the work, in question, being required to be executed in the District of Sivasagar; the employer having interpreted that such license to be one covering the District of Sivasagar, either, issued by the license issuing authority of Sivasagar District and/or by the authority issuing license for whole of the State of

¶115

Page No.# 12/39

¶116

Assam, as in the case of the appellant, herein; no error can be attributed to such requirement so placed by the employer, in this connection.

¶117

7. Mr. Das, learned counsel, by referring to the provisions of Clause 35 of the Instructions to Bidders(ITB) finding place in Section II of the Notice Inviting Tender(NIT), dated 23.02.2024, has submitted that the manner of evaluation of bids was set-out therein. By referring to the provisions of Clause 35.2(e), Mr. Das, learned counsel, has submitted that an additional evaluation factor as specified in “Section IV: Evaluation and Qualification Criteria”, was also incorporated in the provisions of Clause 35.2 for the purpose of evaluation of the bids received in pursuance of the Notice Inviting Tender(NIT), dated 23.02.2024.

¶118

8. Mr. Das, learned counsel, by referring to the provisions so available in Clause 1 of Section IV of the Notice Inviting Tender(NIT), dated 23.02.2024, more particularly, the language in which the said provision is so couched; has submitted that the labour license was denoted as a qualification criteria for the purpose of evaluation of the bids of the bidders and the same, in view of the language of the provision, relatable to the work, involved; has to be construed to be a labour license issued covering the District of Sivasagar.

¶119

9. Mr. Das, learned counsel, by further referring to the judgment & order, dated 23.09.2024, passed by the learned Single Judge in WP(c)3526/2024, has submitted that the learned Single Judge had also accepted the fact that the labour license was an essential qualification under the provisions of Clause 2.A(iii) of the Notice Inviting Tender (NIT),

¶120

Page No.# 13/39

¶121

dated 23.02.2024, for the purpose of evaluation of the bids. It was submitted by Mr. Das, learned counsel, that the learned Single Judge had further also noticed the contention of the employer that the labour license which is a contract labour license for the purpose of the tender, in question, is one which is issued by the regional licensing authority under whose jurisdiction the contract work, in question, would be executed and/or issued by a license issuing authority who has the jurisdiction to issue licenses for the whole of the State of Assam. Mr. Das, learned counsel, has, accordingly, projected that the learned Single Judge having recorded the said findings; erred in proceeding to conclude that the said stand of the employer not being disclosed in Notice Inviting Tender(NIT), dated 23.02.2024; the same was a hidden criteria and accordingly, the said criteria was held to be an arbitrary one.

¶122

10. Mr. Das, learned counsel, by highlighting that the learned Single Judge by examining the provisions of the Contract Labour Regulation and Abolition Act, 1970, read with the Contract Labour(Regulation & Abolition) Assam Rules, 1971, proceeded to draw conclusions in the matter that the said labour license would be the one which would be so required to be acquired by a bidder after the contract is so settled with him; has submitted that the said conclusions drawn by the learned Single Judge would have no application, insofar as, the evaluation of the bids is concerned, in view of the categorical requirement made in the Notice Inviting Tender(NIT), dated 23.02.2024, for a bidder to furnish a labour license along with the bid which was also to be so scrutinized in the process of evaluation of the bids so received.

¶123

Page No.# 14/39

¶124

11. Mr. Das, learned counsel, by referring to the conclusions drawn by the learned Single Judge in Paragraph No. 34 of the judgment & order, dated 23.09.2024, in WP(c)3526/2024; has submitted that while on the one hand, the learned Single Judge had recorded a finding to the effect that the contract labour license sought under the tender conditions is for the purpose of examination and satisfaction of the employer that the concerned bidder had the capability to engage contract labour and provide the labour license for the purpose of utilizing it in the contract; erred in proceeding to draw a further conclusion that the employer could not have insisted upon a specific kind of labour license without a disclosure in this connection in the tender conditions.

¶125

12. Mr. Das, learned counsel, has submitted that the stand of the employer before the learned Single Judge in the matter, as well as in view of the provisions of Section IV, more particularly, Clause 1 thereof; there was no ambiguity that the labour license so mandated, was in connection of the execution of the work which was to take place in the District of Sivasagar. Accordingly, the labour license being construed by the employer to be one which covers the District of Sivasagar to be the mandated document for the purpose of evaluation of the bids; it was submitted by Mr. Das, learned counsel, that the learned Single Judge could not have taken a contrary view in the matter, moreso, when there was no allegation of any mala fide and/or bias levelled against the employer by the respondent No. 1/writ petitioner in the writ petition.

¶126

13. Mr. Das, learned counsel, by further referring to the conclusions drawn by the learned Single Judge in paragraph No. 37 of the judgment &

¶127

Page No.# 15/39

¶128

order, dated 23.09.2024, in WP(c)3526/2024, has submitted that the plea of the respondent No. 1/writ petitioner that the Tender Evaluation Committee had without authority considered the historical documents for the purpose of evaluation of the bids of the bidders before it, but, similar benefit was not extended to it, was correctly rejected by the learned Single Judge, in-as-much as, the respondent No. 1/writ petitioner did not have any historical document as regards the contract labour license being issued by the license issuing authority which is relatable either to the whole of the State of Assam, or, to the place where the contract, in question, is to be executed.

¶129

14. Mr. Das, learned counsel, has further submitted that the conclusions of the learned Single Judge with regard to the action on the part of the Bid Evaluation Committee pertaining to availability of historical documents; reveals that the stand of the State Respondents that the labour license must relate to the place where the contract is being executed, was accepted by the learned Single Judge. However, the learned Single Judge erred in proceeding to interfere with the decision of the Bid Evaluation Committee insofar as the declaration of the bid of the respondent No. 1/writ petitioner as non-responsive, was so concerned.

¶130

15. Mr. Das, learned counsel, in the above premises, has submitted that the learned Single Judge in the impugned judgment & order, dated 23.09.2024, in WP(c)3526/2024; had drawn contradictory conclusions. Mr. Das, learned counsel, has further submitted that the employer having taken a specific stand with regard to the nature of the labour license required by it from the bidders for evaluation of the bids so received in

¶131

Page No.# 16/39

¶132

pursuance of the Notice Inviting Tender(NIT), dated 23.02.2024, and the said stand being an interpretation of the contractual terms by the employer, which did not suffer from any arbitrariness and unreasonableness, the learned Single Judge could not have sat over the same as a Court of appeal and drawn conclusions contrary to the one that was projected by the employer.

¶133

16. Mr. Das, learned counsel for the appellant in WA 354/2024; in support of his submissions, has placed reliance on the following decisions of the Hon'ble Supreme Court:

¶134

(i). Silppi Constructions Contractors v. Union of India & anr., reported in (2020) 16 SCC 489;

¶135

(ii). Utkal Supplier v Maa Kanak Durga Enterprises & ors., reported in (2021) 14 SCC 612; and

¶136

(iii). N.G. Projects Ltd. v. Vinod Kumar Jain & ors., reported in (2022) 6 SCC 127

¶137

17. Ms. Kataky, learned standing counsel, Animal Husbandry & Veterinary Department, appearing for the appellant in WA No. 27/2025; while adopting the submissions made by Mr. Das, learned counsel for the appellant in WA No. 354/2024; has submitted that the employer in terms of the conditions as contained in the Notice Inviting Tender(NIT), dated 23.02.2024, has construed the labour license as a qualification criteria for the purpose of evaluation of the bids. It was further submitted by Ms. Kataky, learned counsel, that the employer had deemed that such labour license requisite to be submitted by the bidders, to be one so issued by the competent authority, either, for the District of Sivasagar, and/or, for the whole of the State of Assam.

¶138

Page No.# 17/39

¶139

18. Ms. Kataky, learned standing counsel, Animal Husbandry & Veterinary Department, has submitted that basing on the said requirement, the bids of the participating bidders in pursuance of the Notice Inviting Tender(NIT), dated 23.02.2024, were evaluated by the Tender Evaluation Committee. On such evaluation, the labour license submitted by the respondent No. 1/writ petitioner being found to be only limited to the Kamrup (Metro) District; its bid was held to be non-responsive. Ms. Kataky, learned counsel, has further submitted that on an examination of the historical documents which were permissible in terms of the provisions of Clause 30 of the Notice Inviting Tender(NIT), dated 23.02.2024; the respondent No. 1/writ petitioner not having been found to have ever been issued with a labour license for the whole of the State of Assam and/or, for the District of Sivasagar wherein the contract was to be so executed; no opportunity was called upon to be so issued to the respondent No. 1/writ petitioner, to produce a labour license covering the District of Sivasagar, in-as-much as, an opportunity so granted to the respondent No. 1/writ petitioner would have resulted in production of a license in this connection issued after the last date for submission of bids in pursuance of the Notice Inviting Tender(NIT), dated 23.02.2024, which was not permissible.

¶140

19. In the above premises, Ms. Kataky, learned counsel appearing for the appellant in WA No. 27/2025, has submitted that the judgment & order, dated 23.09.2024, passed by the learned Single Judge in WP(c)3526/2024, would call for an interference and thereby, permit the employer, to get the work executed which work was contended to be of great importance insofar as providing care to the animals, was so concerned.

¶141

Page No.# 18/39

¶142

20. Per contra, Mr. Singha, learned counsel appearing for the respondent No. 1/writ petitioner, in both the writ appeals; has submitted that labour license so requisite, cannot be held to be a mandatory document, in-asmuch as, in view of the provisions of the Contract Labour(Regulation and Abolition) Assam Rules, 1971; such labour license was to be so procured by the contractor after the allotment of the contract, in question, by the employer.

¶143

21. Mr. Singha, learned counsel, has further submitted that the respondent No. 1/writ petitioner along with its bid, had also furnished a copy of the labour license so issued to it pertaining to Kamrup(Metro) District which would establish the fact that the respondent No. 1/writ petitioner was qualified to engage labourers by complying with the provisions of the Contract Labour Regulation and Abolition Act, 1970, and the Contract Labour(Regulation and Abolition) Assam Rules, 1971.

¶144

22. Mr. Singha, learned counsel, has submitted that the said labour license could not have been declared to be invalid by the Bid Evaluation Committee, in-as-much as, the said license was also issued by a competent authority so empowered under the provisions of the Contract Labour(Regulation and Abolition) Assam Rules, 1971.

¶145

23. Mr. Singha, learned counsel, by referring to the labour license so furnished by the respondent No. 1/writ petitioner along with its bid in the tender; has submitted that the same was issued by a competent license issuing authority for execution of the contract and supply in the establishment of the Directorate of Animal Husbandry and Veterinary

¶146

Page No.# 19/39

¶147

Department, Assam, which was situated in Kamrup(Metro) District. Accordingly, Mr. Singha, learned counsel, has submitted that the said labour license having been so issued in respect of the establishment of the Directorate of Animal Husbandry and Veterinary Department; the same would also cover the various District establishments under the Directorate of Animal Husbandry and Veterinary Department, Assam, including such District establishment at Sivasagar.

¶148

24. In the above premises, Mr. Singha, learned counsel, has submitted that the respondent No. 1/writ petitioner had substantially complied with all the mandatory requirements. However, the Bid Evaluation Committee by ignoring a valid labour license so furnished by the respondent No. 1/writ petitioner, had proceeded to hold the bid of the respondent No. 1/writ petitioner, to be non-responsive only on account of the fact that the labour license was so issued in respect of Kamrup(Metro) District only.

¶149

25. Mr. Singha, learned counsel, by reiterating that on award of the contract in pursuance of the Notice Inviting Tender(NIT), dated 23.02.2024, a fresh labour license being mandatory; the requirement of a labour license along with the bid was only for the purpose of ascertaining as to whether the concerned bidder had the capability to procure the required contract labour license for engagement of labour for the purpose of execution of the work involved. Accordingly, it has been submitted by Mr. Singha, learned counsel, that the labour license as furnished by the respondent No. 1/writ petitioner ought to have been construed to be fulfilling the said requirement and accordingly, the bid of the respondent No. 1/writ petitioner was mandated to be held to be responsive.

¶150

Page No.# 20/39

¶151

26. Mr. Singha, learned counsel, has further submitted that if it was the intention of the employer that the labour license must be the one which was so issued for the District of Sivasagar, and/or, a labour license issued for the whole of the State of Assam then the same ought to have been so disclosed in the terms and conditions so framed in the Notice Inviting Tender(NIT), dated 23.02.2024. Without a disclosure of the said specification about the labour license in the said Notice Inviting Tender(NIT), the same could not have been utilized by the employer for the purpose of evaluation of the bids to the prejudice of the bidders.

¶152

27. Mr. Singha, learned counsel, has submitted that the learned Single Judge after examining all the aspects of the matter involved; had drawn conclusions vide the judgment & order, dated 23.09.2024, in WP(c)3526/2024, to the effect that the decision of the Bid Evaluation Committee towards holding the bid of the respondent No. 1/writ petitioner to be non-responsive, was arbitrary and unfair. The learned counsel has, accordingly, submitted that the said decision of the learned Single Judge, would not call for any interference.

¶153

28. Mr. Singha, learned counsel, in support of his submissions; has relied upon the following decisions of the Hon'ble Supreme Court:

¶154

(i). Tata Cellular v. Union of India, reported in (1994) 6 SCC 651; and

¶155

(ii). Indian Railway Catering and Tourism Corporation Ltd.& anr. v. Doshion Veolia Water Solutions Pvt. Ltd. & ors., reported in (2010) 13 SCC 364

¶156

Page No.# 21/39

¶157

29. Mr. Singha, learned counsel, in addition to the above-noted decisions of the Hon'ble Supreme Court, has also relied upon the following decisions of this Court:

¶158

(i). Pooja Associates(M/S) v. State of Assam & ors., reported in 2018(5) GLT 478; and

¶159

(ii). Mazumdar Enterprise v. Union of India & ors., reported in (2019) 7 GLR 767

¶160

30. We have heard the learned counsels appearing for the parties, perused the decisions relied upon and also perused the materials brought on record.

¶161

31. Before proceeding to examine the rival contentions of the parties; it would be beneficial to refer to the various provisions of the Notice Inviting Tender(NIT), dated 23.02.2024, relevant to the issues arising in the present proceedings.

¶162

32. The Notice Inviting Tender(NIT), dated 23.02.2024, was so issued inviting bids for the purpose of Construction of New Multicare Hospital including Logistics at Joysagar in Sibsagar District under SOPD-G.

¶163

33. Under the provisions of Clause 6 of the Instructions to Bidders(ITB) placed in Section II of the Notice Inviting Tender (NIT), dated 23.02.2024, which pertains to “bidders qualification’; Clause 6.1 stipulates, as follows:

¶164

“ 6.1 Bidders should substantially meet the qualification criteria as stipulated in the Section-IV"

¶165

Page No.# 22/39

¶166

34. Clause 35 of Section II of the said Notice Inviting Tender (NIT), dated 23.02.2024, stipulates, as follows:

¶167

“ 35. Evaluation of Bids:

¶168

35.1 The Employer/ Evaluation Committee shall use the criteria and methodologies listed in this Clause, No other evaluation criteria or methodologies shall be permitted.

¶169

35.2 To evaluate a Bid, the Employer/ Evaluation Committee shall consider the following:

¶170

(a) the bid price, excluding Provisional Sums and the provision, if any, for contingencies in the Summary Bill of Quantities.

¶171

(b) price adjustment for correction of arithmetic errors in accordance with ITB 33.1.

¶172

(c) price adjustment due to discounts offered in accordance with ITB Para 14 and 35.3.

¶173

(d) price adjustment due to quantifiable nonmaterial nonconformities in accordance with ITB 32.3

¶174

(e) the additional evaluation factors are specified in Section IV. Evaluation and Qualification Criteria.”

¶175

35. The provisions of Clause 35.2(e) mandates that for the purpose of evaluation of the bids; additional evaluation factors as specified in “Section IV: Evaluation and Qualification Criteria”, would also be considered. Section IV pertaining to “Evaluation and Qualification Criteria” of the Notice Inviting Tender(NIT), dated 23.02.2024, stipulates, as follows:

¶176

“ Section IV-Evaluation and Qualification Criteria:

¶177

This Section contains all the criteria that the Employer shall use to evaluate a bid and qualify the Bidders, in accordance with ITB 35 and 36, no other factors, methods or criteria shall be used. The Bidder shall provide all the information requested in the forms included in Section VI-Bidding Forms.

¶178

1. Evaluation-ITB-35.2(e)

¶179

In addition to the criteria listed in ITB 35.2 (a) (d), the following criteria shall apply.

¶180

Evaluation of the Bidder's Technical Bid will include an assessment of the Bidder's technical capacity to mobilize key equipment and personnel for the contract consistent with its proposal regarding work methods, scheduling, and material sourcing in sufficient detail and fully in accordance with the requirements stipulated in Section V Works Requirements. Such an evaluation shall be based on the qualification criteria listed below.

¶181

Page No.# 23/39

¶182

2. Qualification Criteria:

¶183

A. Bidder should demonstrate that they fulfill the following qualification Criteria:

¶184

a. The bidder should have achieved a minimum annual financial turnover in any single year (defined as a billing for works in progress and completed in all classes of civil engineering construction works only) over the last 5 (five) financial years 2018-19 to 2022-23 amounting to Rs. 359.46 L

¶185

b. The bidder must be a profit-making entity for the last 5 (five) financial years 2018-19 to 2022-23.

¶186

C. The bidder should have satisfactorily completed, as a prime contractor at least one similar work of value not less than Rs.287.56 L.

¶187

d. i. The bidder (or its sub-contractor, if any) should possess valid electrical licence for executing electrical works of the project and should have executed similar electrical works for a minimum amount of Rs. 4.00 L in any one of the last 5 financial year in a single job. Incase the bidder is not in possession of such licence, the bidder must enter into a collaboration/tie up arrangement with such licence holder having requisite experience, such the up must be submitted with NOTARY.

¶188

ii. GST registration certificate with upto date Challan,

¶189

iii. EPF with upto date payment Challan along with upto date Labour Licence and ESIC.

¶190

iv. Up to date Professional tax submission certificate.”

¶191

36. A perusal of Section 35 of the Instructions to Bidders (ITB) as contained in the Notice Inviting Tender(NIT), dated 23.02.2024; more particularly, Clause 35.2 would go to reveal that the employer/evaluation committee shall evaluate the bids of the participating bidders in terms of the provisions of sub-clause (a)-(e) of Clause 35.2.

¶192

37. Clause 35.2(e) mandates that in addition to the evaluation criteria as set-out in sub-Clause(a)-(d) of Clause 35.2; the additional evaluation factors as specified in Section IV of the Notice Inviting Tender(NIT), dated 23.02.2024, shall be so considered.

¶193

38. The provisions of Clause 1 of Section IV of the Notice Inviting Tender(NIT), dated 23.02.2024, stipulates that in addition to the criteria

¶194

Page No.# 24/39

¶195

listed in Instructions to Bidders(ITB) under Clause 35.2(a)-(d); the same shall also include an assessment of the bidders technical capacity to mobilize key equipment and personnel for the contract consistent with its proposal regarding the various aspects of the work. Such an evaluation was to be so made based on the qualification criteria listed under Clause 2 of Section IV. Clause 2(A)(d)(iii) mandates the intending bidder to furnish an “ EPF Certificate with upto-date payment challan along with upto-date labour license and ESIC” .

¶196

39. Accordingly, in view of the manner in which the requirement of furnishing a labour license is so placed in the provisions of the Notice Inviting Tender(NIT), dated 23.02.2024, it has to be concluded that the said labour license is a mandatory qualification criteria and it forms a part of the evaluation process of the bids so received in pursuance of the said Notice Inviting Tender(NIT).

¶197

40. The rival contentions of the parties to the proceeding has brought to the forefront, an issue as to what should be the characteristics of the labour license so mandated to be furnished along with the bid of the parties for the purpose of evaluation of its bid.

¶198

41. The Notice Inviting Tender(NIT) in the provisions of sub-Section(1) of Section IV, has mandated that the assessment of the bidders’ technical capacity to mobilize the key equipment and personnel for the contract, shall be so evaluated based on the qualification criteria so listed in Clause 2. Clause 2(A)(d)(iii) having stipulated the requirement of submission of a labour license; the said labour license being for the purpose of assessing

¶199

Page No.# 25/39

¶200

the technical capacity of the bidder for mobilizing the key equipment and personnel, in other words, for execution of the work, in question, and the work being specified to be so executed at Joyasagar in the District of Sivasagar; the said labour license must be one which would establish that the bidder is capable of engaging the contract labour at Sivasagar and/or for obtaining such license, in the event, the work is so allotted to him.

¶201

42. The said revelation as made from the provisions of the Notice Inviting Tender(NIT), dated 23.02.2024, with regard to the nature of the labour license required to be furnished by the intending bidder, was also the interpretation advanced by the employer both before the writ Court as well as in the present proceedings.

¶202

43. The employer having interpreted the said labour license to be one which was issued by the license issuing authority of the District of Sivasagar and/or a labour license issued by the competent authority covering the State of Assam; the said understanding of the employer with regard to the nature of the labour license, has to be given its due importance.

¶203

44. The above conclusions having been drawn; this Court would now examine the decisions of the Hon'ble Supreme Court holding the field with regard to the power of the writ Court to interfere with the prescriptions in a tender conditions as well as the importance so required to be given with regard to the interpretation of such tender conditions by the employer.

¶204

45. With regard to the power of judicial review of the administrative

¶205

Page No.# 26/39

¶206

action; the Hon'ble Supreme Court in the case of Jagdish Mandal v. State of Orissa , reported in (2007) 14 SCC 517 , had drawn the following conclusions:

¶207

“ "22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:

¶208

(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;

¶209

OR

¶210

Whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached";

¶211

(ii) Whether public interest is affected.

¶212

If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition tenderer/contractor or distribution of State largesse of penal consequences on a tenderer/contractor or distribution of State largesse(allotment of sites/shops, grant of licences, dealerships and frances) stand on a different footing as they may require a higher degree of fairness in action. "

¶213

46. The Hon'ble Supreme Court in the case of Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd. & anr., reported in (2016) 16 SCC 818 , had drawn the following conclusions:

¶214

Page No.# 27/39

¶215

“ 11. Recently, in Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium) it was held by this Court, relying on a host of decisions that the decision-making process of the employer or owner of the project in accepting or rejecting the bid of a tenderer should not be interfered with. Interference is permissible only if the decision-making process is mala fide or is intended to favour someone. Similarly, the decision should not be interfered with unless the decision is so arbitrary or irrational that the Court could say that the decision is one which no responsible authority acting reasonably and in accordance with law could have reached. In other words, the decision-making process or the decision should be perverse and not merely faulty or incorrect or erroneous. No such extreme case was made out by GYT-TPL JV in the High Court or before us.

¶216

12. In Dwarkadas Marfatia and Sons v. Port of Bombay it was held that the constitutional courts are concerned with the decision-making process. Tata Cellular v. Union of India went a step further and held that a decision if challenged (the decision having been arrived at through a valid process), the constitutional courts can interfere if the decision is perverse. However, the constitutional courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute its view for that of the administrative authority. This was confirmed in Jagdish Mandal v. State of Orissa as mentioned in Central Coalfields.

¶217

13. In other words, a mere disagreement with the decision-making process or the decision of the administrative authority is no reason for a constitutional court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional court interferes with the decision-making process or the decision.

¶218

14. We must reiterate the words of caution that this Court has stated right from the time when Ramana Dayaram Shetty v. International Airport Authority of India was decided almost 40 years ago, namely, that the words used in the tender documents cannot be ignored or treated as redundant or superfluous they must be given meaning and their necessary significance. In this context, the use of the word "metro" in Clause 4.2 (a) of Section III of the bid documents and its connotation in ordinary parlance cannot be overlooked.

¶219

15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.”

¶220

47. In the case of Galaxy Transport Agencies v. New J. K. Roadways, Fleet Owners & Transport Contractors, reported in (2021) 16 SCC 808, a 3-Judge Bench of the Hon'ble Supreme Court had held that the authority

¶221

Page No.# 28/39

¶222

that authors the tender document is the best person to understand and appreciate its requirements and thus, its interpretation should not be second guessed by a Court in judicial review proceeding. [Also refer Utkal Supplier (supra)].

¶223

48. The Hon'ble Supreme Court in the case of M/s Agmatel India Pvt. Ltd. v. Resoursys Telecom & ors., reported in (2022) 5 SCC 362 , after noticing its earlier decisions in the case of Galaxy Transport Agencies (supra); Bharat Cooking Coal Ltd. & ors. v. AMR Dev Prabha & ors. reported in (2020) 16 SCC 759 ; Silppi Constructions Contractors (supra); had drawn the following conclusions:

¶224

“ 24. The scope of judicial review in contractual matters, and particularly in relation to the process of interpretation of tender document, has been the subject-matter of discussion in various decisions of this Court. We need not multiply the authorities on the subject, as suffice it would be refer to the three-Judge Bench decision of this Court in Galaxy Transport Agencies wherein, among others, the said decision in Afcons Infrastructure has also been considered; and this Court has disapproved the interference by the High Court in the interpretation by the tender inviting authority of the eligibility term relating to the category of vehicles required to be held by the bidders, in the tender floated for supply of vehicles for the carriage of troops and equipment.

¶225

25. This Court referred to various decisions on the subject and stated the legal principles as follows: (Galaxy Transport Agencies case, SCC paras 14-20)

¶226

"14. In a series of judgments, this Court has held that the authority that authors the tender document is the best person to understand and appreciate its requirements, and thus, its interpretation should not be second-guessed by a court in judicial review proceedings. In Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., this Court held: (SCC p. 825, para 15)

¶227

“ 15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.'

¶228

Page No.# 29/39

¶229

15. In the judgment in Bharat Coking Coal Ltd. v. AMR Dev Prabha, under the heading "Deference to authority's interpretation", this Court stated: (SCC p. 776, paras 50-52)

¶230

50. Lastly, we deem it necessary to deal with another fundamental problem. It is obvious that Respondent 1 seeks to only enforce terms of NIT. Inherent in such exercise is interpretation of contractual terms. However, it must be noted that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes.

¶231

51. In the present facts, it is clear that BCCL and C1-India have laid recourse to clauses of NIT, whether it be to justify condonation of delay of Respondent 6 in submitting performance bank guarantees or their decision to resume auction on grounds of technical failure. BCCL having authored these documents, is better placed to appreciate their requirements and interpret them.

¶232

52. The High Court ought to have deferred to this understanding, unless it was patently perverse or mala fide. Given how BCCL's interpretation of these clauses was plausible and not absurd, solely differences in opinion of contractual interpretation ought, not to have been grounds for the High Court to come to a finding that the appellant committed illegality.'

¶233

16. Further, in the recent judgment in Silppi Constructions Contractors v. Union of India, this Court held as follows: (SCC pp. 501-02, para 20)

¶234

20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent Arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case.

¶235

17. In accordance with these judgments and noting that the terpretation of the tendering authority in this case cannot be said to be a erverse one, the Division Bench ought not to have interfered with it by iving its own interpretation and not giving proper credence to the word both" appearing in Condition No. 31 of the NIT For this reason, the Division Bench's conclusion that JK Roadways was wrongly declared to be neligible, is set aside.

¶236

Page No.# 30/39

¶237

18. Insofar as Condition No. 27 of the NIT prescribing work experience of at least 5 years of not less than the value of Rs 2 crores is concerned, suffice it to say that the expert body, being the Tender Opening Committee, consisting of four members, clearly found that this eligibility condition had been satisfied by the appellant before us. Without therefore going into the assessment of the documents that have been supplied to this Court, it is well settled that unless arbitrariness or mala fide on the part of the tendering authority is alleged, the expert evaluation of a particular tender, particularly when it comes to technical evaluation, is not to be second-guessed by a writ court. Thus, in Jagdish Mandal v. State of Orissa, this Court noted: (SCC pp. 531-32, para 22)

¶238

22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:

¶239

(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;

¶240

OR

¶241

Whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached";

¶242

(ii) Whether public interest is affected.

¶243

If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.'

¶244

Page No.# 31/39

¶245

19. Similarly, in Montecarlo Ltd. v. NTPC Ltd. 13, this Court stated as follows: (SCC p. 288, para 26)

¶246

26. We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinised by the technical experts and sometimes thirdparty assistance from those unconnected with the owner's organisation is taken. This ensures objectivity. Bidder's expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decision-making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the Court should follow the principle of restraint. Technical evaluation or comparison by the Court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints.'

¶247

20. This being the case, we are unable to fathom how the Division Bench, on its own appraisal, arrived at the conclusion that the appellant held work experience of only 1 year, substituting the appraisal of the expert four-member Tender Opening Committee with its own."

¶248

(italicised matter emphasised in the original; emphasis in bold italics supplied)

¶249

26. The abovementioned statements of law make it amply clear that the author of the tender document is taken to be the best person to understand and appreciate its requirements; and if its interpretation is manifestly in consonance with the language of the tender document or subserving the purchase of the tender, the Court would prefer to keep restraint. Further to that, the technical evaluation or comparison by the Court is impermissible; and even if the interpretation given to the tender document by the person inviting offers is not as such acceptable to the constitutional court, that, by itself, would not be a reason for interfering with the interpretation given.'”

¶250

Page No.# 32/39

¶251

49. The Hon'ble Supreme Court in the case of N.G. Projects (supra), after noticing its earlier decisions; had drawn the following conclusions:

¶252

“ 17. Therefore, the position of law with regard to the interpretation of terms of the contract is that the question as to whether a term of the contract is essential or not is to be viewed from the perspective of the employer and by the employer. Applying the aforesaid position of law to the present case, it has been the contention of Respondent 1 that the format for bank guarantee was not followed strictly by the State and that the relaxation given was not uniform, in that Respondent 1 was singled out. The said contention has found favour with the courts below.

¶253

****************************************************************************************************

¶254

22. The satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of expectations from the tenderers while evaluating the consequences of non-performance. In the tender in question, there were 15 bidders. Bids of 13 tenderers were found to be unresponsive i.e. not satisfying the tender conditions. The writ petitioner was one of them. It is not the case of the writ petitioner that action of the Technical Evaluation Committee was actuated by extraneous considerations or was mala fide. Therefore, on the same set of facts, different conclusions can be arrived at in a bona fide manner by the Technical Evaluation Committee. Since the view of the Technical Evaluation Committee was not to the liking of the writ petitioner, such decision does not warrant for interference in a grant of contract to a successful bidder.”

¶255

50. The ratio of the decisions of the Hon'ble Supreme Court as noticed in the above-noted cases, is to the effect that the owner or the employer of a project having authored the tender document is the best person to understand and appreciate its requirement and interpret its documents. A constitutional Court is to defer to this understanding and appreciation of the tender documents unless there is malafide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. Even if the interpretation of a tender document as projected by the employer, is not acceptable to a constitutional Court, that, by itself; would not be a reason for interfering with the interpretation so projected by the employer. It also further stipulates that if two interpretations are possible then the interpretation of the employer, must be accepted. The said decisions lay down that the interference of a Court would be only to prevent arbitrariness, irrationality, bias, mala fide, or,

¶256

Page No.# 33/39

¶257

perversity.

¶258

51. Applying the ratio of the decisions of the Hon'ble Supreme Court to the facts of the present case; it is seen that the employer having projected that the labour license so mandated under the provisions of Clause 2(a)(d) (iii) of Section IV of the Notice Inviting Tender(NIT), dated 23.02.2024, to be a labour license, covering the District of Sivasagar, either, issued by the regional licensing authority of Sivasagar, and/or, by a competent authority for the whole of the State of Assam; such a projection not having been demonstrated by the respondent No. 1/writ petitioner, to be actuated by mala fide, bias and/or, further to be perverse; it would not be permissible for a writ Court to interfere with the such projection so made with regard to the nature of the labour license so mandated to be furnished along with the bid in pursuance of the Notice Inviting Tender(NIT), dated 23.02.2024.

¶259

52. It is reiterated that the parties to the proceeding have not disputed that the labour license under the terms of the contract, was an essential qualification criteria for evaluation of the bids in terms of the bid evaluation criteria so set-out under the provisions of Clause 35(2) read with the provisions of Clause 1 and 2 of Section IV of the Notice Inviting Tender (NIT), dated 23.02.2024.

¶260

53. The above being the position; the respondent No. 1/writ petitioner, admittedly, not having ever procured a labour license covering the District of Sivasagar, and/or, covering the whole of the State of Assam and the license so procured by him, being only, in relation to Kamrup(Metro) District; the respondent No. 1/writ petitioner could not have been held to

¶261

Page No.# 34/39

¶262

have fulfilled the qualification criteria as set-out in the provisions of the Notice Inviting Tender(NIT), dated 23.02.2024, more particularly, under the provisions of Section IV of the Notice Inviting Tender(NIT), dated 23.02.2024.

¶263

54. The decision of the Bid Evaluation Committee, in proceeding to hold the bid of the respondent No. 1/writ petitioner, to be non-responsive in view of the discussions made hereinabove; as well as on application of the ratio of the decisions of the Hon'ble Supreme Court; cannot be held to be an erroneous one.

¶264

55. Having drawn the above conclusions; the judgment & order, dated 23.09.2024, passed by the learned Single Judge in WP(c)3526/2024, is now being examined.

¶265

56. The learned Single Judge after noticing the various provisions of the Notice Inviting Tender(NIT), dated 23.02.2024, in paragraph No. 22, had concluded that the requirement of a labour license was an essential qualification under Clause 2.A(d)(iii) of Section IV. The learned Single Judge further recorded a finding to the effect that the said contract labour license was also a part of the bid evaluation process.

¶266

57. The learned Single Judge, thereafter, noticed the interpretation of the employer with regard to the characteristics of the labour license so mandated to be furnished by the intending bidder, to be one issued by the regional licensing authority under whose jurisdiction the contract is to be executed, and/or, to be issued by a licensing authority who has the

¶267

Page No.# 35/39

¶268

jurisdiction to issue license for the whole of the State of Assam. However, the learned Single Judge without appreciating further the tender conditions set-out in the Notice Inviting Tender(NIT), dated 23.02.2024; proceeded to draw a conclusion to the effect that the said interpretation of the labour license as projected by the employer, being not disclosed in the tender conditions, deemed the said interpretation to be a hidden evaluation criteria. The said conclusion of the learned Single Judge, in our considered view; is clearly erroneous in view of the conclusions reached by us, hereinabove, with regard to the purport of Clause 1 and 2 of Section IV of the Notice Inviting Tender(NIT), dated 23.02.2024.

¶269

58. Further, the employer having mandated the labour license as a qualification criteria and further having interpreted the labour license to be one having application in the District of Sivasagar, such interpretation not being demonstrated to be arbitrary, and/or, unreasonable and further, to be not perverse to the tender conditions of the Notice Inviting Tender(NIT), dated 23.02.2024, following the decisions of the Hon'ble Supreme Court, noticed hereinabove; it was not open to the learned Single Judge to second guess upon the interpretation so made by the employer. The interpretation made by the employer not suffering from any arbitrariness admittedly not being perverse to the tender conditions and such interpretation being equally applied in case of all the bidders; such an interpretation was, therefore, required to be upheld by the learned Single Judge.

¶270

59. It is a settled position of law that the clauses in a tender, cannot be held to be superfluous or redundant. A perusal of the decision of the learned Single Judge having accepted the labour license to be a

¶271

Page No.# 36/39

¶272

qualification criteria for evaluation of the bids, ought not to have proceeded to draw conclusions that such license in terms of the provisions of the Contract Labour Regulation and Abolition Act, 1970, and the Contract Labour(Regulation and Abolition) Assam Rules, 1971; would be called upon to be so procured by the bidder after the settlement of the contract with it. The stage admittedly had not arisen in the matter, on hand. Such conclusions drawn by the learned Single Judge has the effect of rendering the express conditions set-out in the Notice Inviting Tender(NIT), dated 23.02.2024, to being rendered redundant, which was clearly uncalled for.

¶273

60. The learned Single Judge further proceeded to conclude that the employer had rejected the bid of the respondent No. 1/writ petitioner by holding that he did not had a valid labour license. A perusal of the minutes of the Bid Evaluation Committee, available on record, would go to reveal that the bid of the respondent No. 1/writ petitioner was held to be nonresponsive on the ground that the labour license produced by him, was valid for Kamrup (Metro) District only. The Bid Evaluation Committee and for that matter; the employer had never projected that the labour license furnished by the respondent No. 1/writ petitioner, to be an invalid one. The employer having interpreted the requirement of the labour license to be one, issued covering the District of Sivasagar, and such interpretation not being arbitrary, and/or unreasonable; no other interpretation, thereto, was permissible to be so made by the writ Court. Accordingly, we are of the considered view that the conclusion of the learned Single Judge that the declaration of the labour license of the respondent No. 1/writ petitioner as an invalid license, is in violation of the principles of Article 14 of the Constitution of India; is clearly erroneous and would call for an interference.

¶274

Page No.# 37/39

¶275

61. In view of the above conclusions, we are of the considered view that the conclusions drawn by the learned Single Judge in the impugned judgment & order, dated 23.09.2024, in WP(c)3526/2024, in addition to being not supported by the stand of the employer with regard to the tender conditions; the same is also contrary to the tender conditions as set-out in the Notice Inviting Tender(NIT), dated 23.02.2024. Further, the conclusions drawn by the learned Single Judge in the said judgment & order, dated 23.09.2024, is in the teeth of the decisions of the Hon'ble Supreme Court in the cases, noticed hereinabove.

¶276

62. Accordingly, the conclusions so drawn by the learned Single Judge vide judgment & order, dated 23.09.2024, in WP(c)3526/2024, would mandate an interference.

¶277

63. At this stage, the contention of Mr. Singha, learned counsel for the respondent No. 1/writ petitioner, with regard to the opportunity provided to the appellants, herein, as well as other bidders to produce the documents not furnished by them along with their bids; is being examined.

¶278

64. Clause 30 of Section II of the Instructions to Bidders (ITB), empowers the Bid Evaluation Committee to request the bidders to submit necessary information or documents which are historical in nature.

¶279

65. The above provision was invoked in order to facilitate the appellants, herein, as well as other respondents to place on record the documents which existed on the last date of submission of their bids in pursuance of the Notice Inviting Tender(NIT), dated 23.02.2024.

¶280

Page No.# 38/39

¶281

66. In respect of the respondent No. 1/writ petitioner, herein, there being no historical document available of it having procured a labour license covering the State of Assam, or, relatable to the District of Sivasagar; the respondent No. 1/writ petitioner was not extended with a similar opportunity by the Bid Evaluation Committee.

¶282

67. The said aspect of the matter was considered by the learned Single Judge and in paragraph No. 37 of the judgment & order, dated 23.09.2024, in WP(c)3526/2024; and it was concluded that the respondent No. 1/writ petitioner, admittedly, did not have any historical document as regards the contract license issued by the licensing authority which is relatable, either, to the whole of the State of Assam, or, to the place where the contract is being executed. The said conclusion of the learned Single Judge has not been assailed by the respondent No. 1/writ petitioner by instituting an appeal in the matter. Accordingly, the said conclusion has to be held to have attained its finality and accordingly, no consideration of the same issue would be called for, in the present order.

¶283

68. In view of the above discussions, on perusal of the decisions relied upon by Mr. Singha, learned counsel for the respondent No. 1/writ petitioner; we are of the considered view that the same would not advance the case of the respondent No. 1/writ petitioner, herein.

¶284

69. In view of the above conclusions, we are of the considered view that the impugned judgment & order, dated 23.09.2024, passed by the learned Single Judge in WP(c)3526/2024, cannot be sustained. Hence, the same is hereby set aside.

¶285

Page No.# 39/39

¶286

70. The writ appeals are accordingly allowed. Resultantly, the writ petition being WP(c)3526/2024, instituted by the respondent No. 1/writ petitioner, before the writ Court; stands dismissed. However, there shall be no order as to costs.

¶287

JUDGE CHIEF JUSTICE

¶288

Comparing Assistant

M/S Friend Enterprise and Anr. v. M/S Consulting Engineer (Ng) and 8 Ors.

Case brief

What is this about?

What did the court decide?

M/S Friend Enterprise and Anr. v. M/S Consulting Engineer (Ng) and 8 Ors.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Alaka Kalita Vs Sri Narayan Konwar and Ors.

N F Railway Vending and Catering Contractors Association Vs the Union of India and 3 Ors.

Nurtazul Hoque and 86 Ors. Vs the State of Assam and 4 Ors.

M/S Rama K Gupta and Company Vs the Panchayat and Rural Development Deptt and 2 Ors.

M/S Megha Electricals Vs the State of Assam and 9 Ors.

The State of Assam and 3 Ors. Vs M/S Consulting Engineer (Ng) and 4 Ors.