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

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GAHC010217882024

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2025:GAU-AS:2204-DB

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

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Case No. : WA/364/2024

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M/S MEGHA ELECTRICALS

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REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, SHRI UMESH BORO, AGED ABOUT 56 YEARS, SON OF LATE DHARMESWAR BORO RESIDENT OF HOUSE NO. 12,3RD BYELANE, NABAGRAHA ROAD, SILPUKHURI, GUWAHATI 781003

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VERSUS

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THE STATE OF ASSAM AND 9 ORS. REPRESENTED BY THE PRINCIPAL SECRETARY PUBLIC WORKS DEPARTMENT, DISPUR GUWAHATI 781006

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2:THE CHIEF ENGINEER PUBLIC WORKS DEPARTMENT BUILDING ASSAM CHANDMARI GUWAHATI 781003

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3:THE BID EVALUATION COMMITTEE REPRESENTED BY ITS CHAIRMAN BID EVALUATION COMMITTEE CUM SPECIAL CHIEF ENGINEER PUBLIC WORKS DEPARMENT BUILDING

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HEALTH AND EDUCATION ASSAM CHANDMARI GUWAHATI 781103

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4:THE SPECIAL CHIEF ENGINEER PUBLIC WORKS DEPARMENT BUILDING HEALTH AND EDUCATION ASSAM CHANDMARI GUWAHATI 781103

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5:THE DEPUTY SECRETARYTO THE GOVT. OF ASSAM PUBLIC WORKS (BUILDING AND NH) DEPARTMENT ASSAM CHANDMARI GUWAHATI 781003

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6:THE MEMBER SECRETARY

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BID EVALUATION COMMITTEE CUM ADDITIONAL CHIEF ENGINEER PUBLIC WORKS DEPARMENT ELECTRICAL ASSAM CHANDMARI GUWAHATI 781103

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7:THE MEMBER BID EVALUATION COMMITTTE CUM SUPERINTENDING

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ENGINEER (1) O/O THE CHIEF ENGINEER PUBLIC WORKS DEPARMENT BUILDING ASSAM CHANDMARI GUWAHATI 781003

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8:THE MEMBER BID EVALUATION COMMITTEE CUM FINANCE AND ACCOUNT OFFICER PUBLIC WORKS DEPARTMENT BUILDING ADN NH O/O THE CHIEF ENGINEER PWD BUILDING ASSAM CHANDMARI GUWAHATI 781003

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9:SHREE GAUTAM CONSTRUCTIONS COMPANY LIMITED 4TH FLOOR AMAZA TOWER A.T ROAD OPP. PANBAZAR OVERBRIDGE GUWAHATI 781001 REP. BY VIJAY SINGH

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10:M/S ASSAM ELECTRIC STORE R.NB ROAD KOKRAJHAR 783370 (BTC) ASSAM INDIA AND 414 PURBI COMPLEX A.T ROAD GUWAHATI 781001 AND BRANCH OFFICE AT ULUBARI SOUTH SARANIA BYE LANE NO. 1 HOUSE NO. 9 GUWAHATI 781007 REP. BY MR. BIMAL KUMAR DUGA

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Advocate for the Petitioner : MR. N N B CHOUDHURY, MR. D SUTRADHAR,MR. A A BARMAN

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Advocate for the Respondent : GA, ASSAM, MR. A N I HUSSAIN (R-10),MS. A B KAYASTHA(R10),MR. R DUBEY(R-10),MS N B KAYASTHA(R-10),SC, PWD

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BEFORE

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

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Date of hearing: 25.02.2025

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Date of Judgment & Order: 04.03.2025

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JUDGMENT & ORDER (CAV)

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(N. Unni Krishnan Nair, J.)

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Heard Mr. N. N. B. Choudhury, learned counsel, appearing on behalf of the appellant. Also heard Mr. B. Gogoi, learned standing counsel, Public Works Department(PWD), appearing on behalf of all the State Respondents; and Mr. R. Dubey, learned counsel, appearing on behalf of the private respondent No. 10.

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2. The appellant, herein, by way of instituting the present intra-Court appeal, has presented a challenge to a judgment & order, dated 03.10.2024, passed by the learned Single Judge in WP(c)4483/2024, rejecting the prayer of the writ petitioner(appellant, herein) for an interference with the decision of the Financial Bid Evaluation Committee as regards the financial bid submitted by the appellant, herein, which was held to be non-responsive.

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3. The brief facts requisite for adjudication of the issue arising in the present proceeding, is noticed as under:

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In pursuance of the Notice Inviting Tender(NIT), dated 04.07.2024, issued for inviting bids from registered PWD Electrical Contractor/Firm for the work of “Construction of 33 KV dedicated HT Line from 132 KV Pavoi GSS to BCMC & H Campus with Laying of 33 KV armoured cable on railway track crossing, Installation of 3 nos. of 2500 KVA OLTC Transformer 33/0.433 KV Sub Station at BCMC&H Campus and Construction of one (01) no. of 33 KV Bay at 132 KV Pavoi GSS for Biswanath Chariali Medical College and Hospital at Biswanth Chariali, District Biswanath”; the appellant, herein, along with respondents No. 9 & 10, had submitted their respective bids.

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The technical bids as submitted by the bidders were considered by the Tender Evaluation Committee, in its meeting held on 31.07.2024. On such consideration being made; the bids submitted by the appellant, herein, as well as the respondents No. 9 & 10, were found to be fulfilling all the eligibility criteria and accordingly, to be technically responsive.

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Thereafter, the financial bids of the bidders were opened. It is projected that on opening of the financial bids; a summary details of the rates so quoted by the parties in the "Bill of Quantities" was uploaded in the Website and therein, the appellant, herein, was found to have quoted the lowest bid and accordingly, he was denoted as L-1, therein.

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The Financial Bid Evaluation Committee, thereafter, evaluated the financial bids of the bidders including the appellant, herein, and on such evaluation; it having been found that the appellant had not quoted his bid price in his "Form of Bid", holding that the appellant had violated the provisions of Clause 13.2 of the Notice Inviting Tender(NIT), dated 04.07.2024, its bid was declared to be non-responsive and not entitled for further evaluation.

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Being aggrieved, the appellant, herein, had approached the writ Court by way of instituting a writ petition being WP(c)4483/2024. The learned Single Judge upon considering the issues arising in the matter, vide judgment & order, dated 03.10.2024, was pleased to dismiss the said writ petition holding that the financial bid of the appellant, herein, was not in consonance with the essential terms and conditions as mandated under Clause 13.2 of the tender conditions.

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4. Being aggrieved with the dismissal of WP(c)4483/2024, as notedabove; the appellant, herein, has approached this Court by way of instituting the present intra-Court appeal.

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5. Assailing the judgment & order, dated 03.10.2024, passed by the

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learned Single Judge in WP(c)4483/2024; Mr. Choudhury, learned counsel for the appellant, has submitted that the Financial Bid Evaluation Committee had exceeded its jurisdiction in the matter, in-as-much as, the appellant, in his "Form of Bid", had categorically stipulated that the rate quoted by him for the work, in question, would be that so quoted in the "Bill of Quantities".

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6. Mr. Choudhury, learned counsel, has further submitted that the appellant, herein, had duly quoted the rates for each of the items in the "Bill of Quantities" and the said amount ought to have been taken into consideration by the Financial Bid Evaluation Committee for the purpose of determining the responsiveness of the financial bid so submitted by the appellant, herein.

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7. Mr. Choudhury, learned counsel, has submitted that while the documents required to be submitted along with the tender documents were encrypted documents; the "Form of Bid" was not encrypted and if the same if so uploaded by the appellant, herein, there was an apprehension that the same would be viewed by the other bidders before the opening of the tender papers and given the provisions of Section 21.2 which facilitated modification and withdrawal of bids before the deadline prescribed in the Notice Inviting Tender(NIT), dated 04.07.2024; a manipulation by the other bidders in the matter, could not have been ruled-out. Accordingly, it is submitted that the appellant, herein, had not reflected his bid price in the "Form of Bid".

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8. Mr. Choudhury, learned counsel, has further submitted that the

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provisions of Clause 13.1 having mandated that the contract shall be for the whole work involved based on the priced "Bill of Quantities" submitted by the bidder; non-quoting of the bid amount in the "Form of Bid", would be inconsequential and cannot be deemed to be a mandatory requirement under the terms and conditions of the Notice Inviting Tender(NIT), dated 04.07.2024.

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9. Mr. Choudhury, learned counsel, has further submitted that the respondents No. 9 & 10 had also not filled up their "Forms of Bid" in the manner required; however, the Financial Bid Evaluation Committee had granted concessions to the said respondents No. 9 & 10 in the matter, which concession was not extended to the appellant, herein, and accordingly, the learned counsel has submitted that the respondent authorities have not applied uniform yardstick in the matter and the appellant, herein; came to be discriminated.

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10. Mr. Choudhury, learned counsel for the appellant, herein, has placed reliance on the decisions of the Hon'ble Supreme Court in the case of Tata Cellular v. Union of India, reported in (1994) 6 SCC 651 and in the case of Central Coalfields Ltd. v. SLL-SML(joint Venture Consortium) & ors., reported in (2016) 8 SCC 622 .

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11. Mr. Choudhury, learned counsel, in the above premises, has submitted that the learned Single Judge having not appreciated the above-noted contentions in the manner required; there being a clear arbitrariness with regard to the manner of evaluation of the financial bids by the Financial Bid Evaluation Committee, the decision of the Financial Bid Evaluation

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Committee would call for an interference with further direction to the respondent authorities for a fresh evaluation of the financial bids of the bidders in the fray.

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12. Per contra, Mr. Gogoi, learned standing counsel, Public Works Department(PWD), and Mr. Dubey, learned counsel for respondent No. 10, have, in unison, submitted that there being a clear prescription in the provisions of Clause 13.2 of the Notice Inviting Tender(NIT), dated 04.07.2024, that a bidder must quote his bid price in Section 6(Form of Bid) both in figure and words, with further stipulation that a financial bid without any mention of bid price in the "Form of Bid" shall be treated as non-responsive and shall not be considered for evaluation; admittedly, the appellant, herein, not having quoted his bid price in the "Form of Bid", the financial bid of the appellant, herein, was rightly held to be non-responsive by the Financial Bid Evaluation Committee and the same would not call for any interference.

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13. The learned counsels have further submitted that the learned Single Judge having appreciated the contentions of the appellant in the light of the provisions of the Clause 13.2 of the Notice Inviting Tender(NIT), dated 04.07.2024, and thereafter, drawn conclusions in the matter; the judgment & order, dated 03.10.2024, passed by the learned Single Judge in WP(c)4483/2024, would not call for any interference.

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14. We have heard the learned counsels appearing for the parties and also perused the materials available on record.

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15. The provisions of Clause 13.1 and 13.2 of the Notice Inviting Tender(NIT), dated 04.07.2024, being relevant, is extracted hereinbelow:

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“ "13.1 The contract shall be for the whole works as described in Sub-Clause 1.1 based on the priced Bill of Quantities submitted by the Bidder.

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13.2 The Bidder shall fill in rates and prices and line item total (both in figures and words) for all items of the works described in the Bill of Quantities along with total bid price (both in figures and words) rounded to the nearest rupee. Items for which no rate or price is entered by the bidder will not be paid for by The Spl. Chief Engineer, PWD Bldg. (H&E), Chandmari, Guwahati-3 when executed and shall be deemed covered by the other rates and prices in the Bill of Quantities. Corrections, if any, shall be made by crossing out, initialing, dating and rewriting.

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The Bidder must quote his bid price in Section-6 (Form of Bid) both in figure and words, which is to be duly signed by the bidder. A Financial Bid without any mention of bid price in the Form of Bid shall be treated as Non-responsive and shall not be considered for evaluation.”

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16. A perusal of the provisions of Clause 13.2 of the Notice Inviting Tender(NIT), dated 04.07.2024, reveals that it was mandated that the bidder was required to quote his “Bid Price” in Section 6, both in figure and words, which was to be duly signed by the bidder. The said prescription was in addition to the requirement of the bidder filling up the rates and prices and line item total(both in figures and words) for all items of the works described in the "Bill of Quantities" along with total bid price(both in figures and words) rounded to the nearest rupee. It was further stipulated in the provisions of Clause 13.2 that a financial bid received without any mention of bid price in the "Form of Bid" shall be treated as non-responsive and shall not be considered for evaluation. The said position being a stipulation so made in the tender document; the same has to be held to be a mandatory requirement.

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17. The appellant, herein, having, admittedly, not quoted his “Bid Price” in the "Form of Bid", he is to be held to have violated the provisions of Clause 13.2 of the Notice Inviting Tender(NIT), dated 04.07.2024, and accordingly, in terms of the unambiguous provisions of Clause 13.2; the bid of the appellant, herein, has to be held to be non-responsive.

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18. The contention of Mr. Choudhury, learned counsel, that the appellant, herein, had not quoted his “Bid Price” in the "Form of Bid", in-as-much as, the same was not an encrypted document, would not mandate acceptance, in-as-much as, in the event, there was any reservation on the part of the appellant, herein, in complying with the provisions of Clause 13.2 of the Notice Inviting Tender(NIT), dated 04.07.2024, more particularly, the requirement of quoting his “Bid Price” in the "Form of Bid"; the appellant, herein, ought to have assailed the provisions of Clause 13.2, before submitting his bid in the matter.

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19. At this stage of the proceeding; the appellant, herein, having submitted his bid without any reservation, the said bid of the appellant cannot be held to be responsive in view of the clear provisions of Clause 13.2 of the Notice Inviting Tender (NIT), dated 04.07.2024.

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20. The reliance placed by Mr. Choudhury, learned counsel for the appellant, herein, on the decision of the Hon'ble Supreme Court in the case of Tata Cellular (supra), would not advance the case of the appellant, herein, in-as-much as, it cannot be held that the Financial Bid Evaluation Committee had evaluated the bid of the appellant, herein, in violation of

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the provisions of Clause 13.2 of the Notice Inviting Tender (NIT), dated 04.07.2024.

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21. The reliance placed by Mr. Choudhury, learned counsel, on the decision of the Hon'ble Supreme Court in the case of Central Coalfields Ltd. (supra), in our considered view, would also not advance the case of the appellant, herein, in-as-much as, the provisions of Clause 13.2 of the Notice Inviting Tender (NIT), dated 04.07.2024, is unambiguous and the appellant, herein, admittedly, not having quoted his “Bid Price” in the "Form of Bid"; a violation of the provisions of Clause 13.2 had occasioned in the matter and accordingly, the declaration of the financial bid of the appellant, herein, as non-responsive by the Financial Bid Evaluation Committee, cannot be held to be erroneous in the matter.

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22. The contentions raised by the appellant, herein, with regard to the deviations in the bids submitted by the respondents No. 9 & 10, would not mandate a consideration, in-as-much as, the appellant, herein, not being eligible; cannot question the bids submitted by others, in-as-much as, he cannot be held now to be similarly situated like them.

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23. The learned Single Judge, on consideration of the issues arising in the matter, vide judgment & order, dated 03.10.2024, passed in WP(c)4483/2024; had drawn the following conclusions:

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“ 12. Clause 13.2 clearly states that a bidder must quote his price in Section 6 (Form of Bid) both in figure and words. In the present case, the petitioner has not put his bid price in figure and words. Clause 13.2 further states that a financial bid, without any mention of bid price in the Form of Bid, shall be treated as non-responsive. The same clearly goes to show that failure of putting the bid price in figure and in words would entail the financial bid of the bidder to be treated as non-responsive. As the petitioner had failed to quote his bid price in the “Form of Bid” both in figure and words, as

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required in terms of Clause 13.2, this Court does not find any infirmity with the decision of the State respondents in declaring the petitioner’s bid as non-responsive.

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13. In the case of Afcons Infrastructure Limited vs. Nagpur Metro Rail Corporation Limited and Another, reported in (2016) 16 SCC 818 , the Supreme Court held 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. It was also held as under:

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“ 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.

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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.”

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14. In the case of Galaxy Transport Agencies vs. New J.K. Roadways, reported in 2020 SCC Online SC 1035, a three-judge Bench of the Supreme Court 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.

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15. In the case of Jagdish Mandal vs. State of Orissa, reported in (2007) 14 SCC 517, the Supreme Court held that Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala-fides. Its purpose is to check whether the choice or decision is made “lawfully” and not to check whether the 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.

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16. In the present case, it has been clearly spelt out in Clause 13.2 that non mentioning of the bid price in the “Form of Bid” in the Financial Bid shall be treated as non-responsive and shall not be considered for evaluation. There can be no other interpretation to the above clause, except to come to a finding that the said condition is an essential condition of the NIT. As held by the Supreme Court in various decisions, the terms and conditions of a tender cannot be open to judicial scrutiny, because the invitation to tender is in the realm of contract, except if the same is

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arbitrary and unreasonable or actuated by bias or malafide. Further, the petitioner has also not made any prayer for setting aside the decision of the respondents in declaring the petitioner's bid as non-responsive.

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17. In view of the reasons stated above, this Court does not find any reason to exercise it's discretion in this case. The writ petition is accordingly dismissed.”

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24. In view of the conclusions reached by us hereinabove; we fully agree with the findings and conclusions of the learned Single Judge vide judgment & order, dated 03.10.2024, in WP(c)4483/2024, and hold that the same would not mandate any interference.

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25. In view of the above position; we are of the considered view that the present intra-Court appeal is devoid of any merit and accordingly, the same stands dismissed. However, there shall be no order as to costs.

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JUDGE CHIEF JUSTICE

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Comparing Assistant

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

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

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