Dismissed

M/S Puberun a Proprietorial Firm Represented by the Sole Proprietor Shri Purna Mahanta v. the State of Assam and 5 Ors.

Gauhati HC10 Nov 2025WP(C)/5257/2025

Case brief

AI extract

What is this about?

A tenderer held technically non-responsive for not submitting the BIS certificate sought acceptance of its later-issued certificate and parity with bidders granted relaxations. The High Court declined interference, holding an ineligible bidder cannot question the award and courts will not re-examine technical evaluation.

What the court decided

AI extract

M/S Puberun a Proprietorial Firm Represented… — Public Procurement and Tenders | Gauhati HC (2025)

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GAHC010203702025

2025:GAU-AS:15450

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

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Case No. : WP(C)/5257/2025

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M/S PUBERUN A PROPRIETORIAL FIRM REPRESENTED BY THE SOLE PROPRIETOR SHRI PURNA MAHANTA AGED ABOUT 64 YEARS.

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HAVING ITS PRINCIPAL PLACE OF BUSINESS AT DISHA ENCLAVE, R.G BARUAH ROAD, DISTRICT KAMRUP (M), ASSAM-781005.

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VERSUS

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THE STATE OF ASSAM AND 5 ORS.

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REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM CUM AGRICULTURE PRODUCTION COMMISSIONER ASSAM, AGRICULTURE DEPARTMENT, DISPUR, GUWAHATI-6.

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2:THE DIRECTOR OF AGRICULTURE

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ASSAM AND CHAIRMAN DEPARTMENTAL BID COMMITTEE (DBC) AGRICULTURE DEPARTMENT KHANAPARA GUWAHATI-22

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3:THE DIRECTOR HORTICULTURE AND FOOD PROCESSING (FP)

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ASSAM KHANAPARA GUWAHATI-22

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4:DAISY INDUSTRIES 102

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MAA ENCORE DAULAT NAGAR ROAD NO.8 OPP PURNIMA HOSPITAL BORIVALI (EAST) MUMBAI(SUB) MAHARASTRA-400066

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5:JK COMMERCIAL 2ND FLOOR HOUSE NO-67 P.P ROAD REHABARI

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GUWAHATI-781008

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6:GUJRAT CRAFT INDUSTRIES LTD. 431 SANTEJ VADSAR ROAD SANTEJ -382721 DIST-GANDHINAGAR GUJARAT

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BEFORE

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HON’BLE MR. JUSTICE DEVASHIS BARUAH

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For the Petitioner(s) : Mr. S. S. Goswami, Advocate

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For the Respondent(s) : Mr. B. Choudhury, Standing Counsel

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Date on which Judgment was reserved : N/A

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Date of Pronouncement of Judgment : 11.11.2025

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Whether the pronouncement is of the Operative Part of the Judgment : No

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Whether the full Judgment has been

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Pronounced : Yes

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JUDGMENT AND ORDER (ORAL)

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Heard Mr. S. S. Goswami, the learned counsel appearing on behalf of the Petitioner and Mr. B. Choudhury, the learned Standing counsel of the Agriculture Department appearing on behalf of the Respondent Nos. 1, 2 and 3. None appears on behalf of the Respondent Nos. 4, 5 and 6 in spite of notice having been affected.

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The Petitioner herein has sought for a mandamus thereby directing the Respondents to accept the BIS License which have been approved/uploaded on 26.08.2025 prior to the Bid Committee Meeting dated 27.08.2025 and online and one hard copy of which was submitted by Petitioner on 28.08.2025 giving parity as has been done in respect to the Respondent No.4 and declare the Petitioner technically responsive. The Petitioner has also sought for a writ in the nature of certiorari for setting aside and quashing the NIT dated 17.06.2025 being in derogation of the mandatory NIT Clauses which the responsive bidders have failed to fulfill.

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FACTUAL MATRIX:

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Shorn of unnecessary details, it is pertinent to take note of that the Directorate of Horticulture and Food Processing Assam had issued a Notice Inviting Bid for procurement of goods and incidental services as specified in Section-V, Schedule of Requirement of the Bid Document. In terms with the said Notice Inviting Tender dated 17.06.2025, it was stipulated that the bids must be submitted online at the e-Procurement portal i.e. http://assamtenders.gov.in on or before the due date for submission i.e.11.07.2025 up to 5:30 PM. It was also mentioned that bidders were also required to submit the hard copy of the technical bid (with original documents) in the Office of the Procuring Entity within due date for submission of the hard copy of the technical bid i.e. 14.07.2025 up to 5.30 PM. It was also mentioned that the technical bid would be opened online on 15.07.2025 at 11.30 AM and the price bid shall be opened online only for technically qualified bidders.

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Section-V of the said Bid Document stipulates the Schedule of Requirements. In the instant case, the Petitioner has submitted bids in respect to two items namely Plastic Mulching Film (20-30 Micron) and HDPE Vermibed with Shade. The same are listed at Serial No.2 and 6 of Clause 5.1 of Section V of the Bid Document. Taking into account its relevance, the details mentioned in Clause 5.1 insofar as the items at Serial Nos. 2 and 6 are reproduced herein under:

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Sl.	Types of	Name of	Unit	Require	Specification
No.	materials	items		d Quantity
2	Agro- plastic	Plastic mulching film (20- 30 micron)	Kg	3,00,00 0	UV stabilized Plastic Mulch Film, Colour – Black & Silver or Both side Silver, Thickness = 20-30 Micron as per CIPET report. Service life = 12 months. Product should conform the specification as per IS:17216:2019
6	Agro- Textile	HDPE Vermibed with Shade	No	10,000	BIS marked, UV resistant and chemically treated, multi- layered HDPE, Thickness – min 0.38 mm, Size 12’X4’X2’, colour-green, stitch less, heat sealed, Shade size- 8’X15’, GSM-350,cross ventilated

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with outlet of vermi-wash,
IS:15907:2010

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The quality of the items have also been mentioned in Clause 5.3 of Section V of the Bid Document as well as how the said quality shall be evaluated by standards/certification. In respect to the item at Serial No.2 of Clause 5.1 of Section V of the Bid Document as above quoted which is Plastic Mulching Film (20-30 micron), the certification required are BIS, valid CIPET Test Report and catalogue of the original manufacturer. In respect to the item at Serial No.6 of Clause 5.1 of Section V of the Bid Document i.e. HDPE Vermibed with Shade, the standards/certification required are BIS, valid CIPET report and catalogue of original manufacturer.

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It is relevant to take note of that pursuant to the said Notice Inviting Tender, three corrigendums were issued whereby some of the tender Clauses were amended. The three corrigendums being Corrigendum No.1, Corrigendum No.2 and Corrigendum No.3 were issued pursuant to the Departmental Bid Committee Meeting held on 17.07.2025 wherein the annual turnover which was originally fixed at 30% was reduced to 20%. Further to that, various Clauses of the original Notice Inviting Tender were amended i.e. Clause 5.3, Clause 4.2.2, Clause 5.1 and Clause ITB 2.20.1. In terms with the amendment at Serial No.3 of the Corrigendum No.1 which pertains to the Required Minimum Experience , the original tender clause stipulated as under:

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“The Bidder (if not manufacturer of the good offered) should have experience in

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supply of similar type of materials as mentioned in the schedule of requirements and the quantity showed against each item to any Govt. Deptt/undertaking/entities/PSUs as specified below during last three financial years i.e. 2022-23, 2023-24 and 2024-25. EXPERIENCE QUANTITY 30% of the required quantity .”

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Post amendment vide the Corrigendum No.1 reads as under:

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“The Bidder (if not manufacturer of the good offered) should have experience in supply of similar type of materials as mentioned in the schedule of requirements and the quantity showed against each item to any Govt. Deptt/undertaking/entities/PSUs as specified below during last five financial years i.e. 2000-21, 2021-22, 2022-23, 2023-24 and 2024-25.

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EXPERIENCE QUANTITY 20% of the required quantity (Corrigendum-III)”

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It is also stated at the Bar that the last date for submission of the online Bid was extended to 14.08.2025 at 5:30 PM and the technical online bid was to be opened on 18.08.2025.

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The Petitioner thereupon submitted its bid for the items listed at Serial No.2 and Serial No.6 of Clause 5.1 of Section V of the Bid Document and admittedly the Petitioner did not submit the BIS Certificate. On 14.08.2025, the Petitioner submitted a request vide a communication to the Director of Horticulture and Food Processing, Assam stating inter alia that the Petitioner would submit the BIS License for IS:17216:2019 of its manufacturer IMPERO POLYFILMS within 15-20 days by email and hard copy also. The Petitioner also enclosed an undertaking from the manufacturer along with Tax Invoice

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of the license fee, inspections charge etc. from the BIS Authority. It was also mentioned in the said communication that as regards the work experience mentioned in the corrigendum of the Departmental Bid Committee Meeting held on 17.07.2025 uploaded on 29.07.2025 at Serial No.3 Clause No.4.2.2 of the Bid Document, the Petitioner had submitted the work experience of Mulching Film to the Department comprising last 5 years alongside copy of the satisfactory Work Completion Certificate and this particular certificate is also relied on for item at Serial No.2 and Serial No.6 of Clause 5.1 of Section V of the Bid Document.

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Pursuant thereto, the Petitioner issued another communication on 18.08.2025 to the Director of Horticulture and Food Processing, Assam thereby requesting for acceptance of the bid in view of the BIS License being under process in response to the participated item Mulching Film.

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On 27.08.2025, the Departmental Committee took up the technical bid for evaluation and on the ground that the BIS License from the OEM was not submitted by the Petitioner for the item Mulching Film (20-30 micron) at the time of submission of the bid, it was decided that the bid so submitted by the Petitioner in respect to Mulching Film (20-30 micron) was nonresponsive.

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This Court also finds it pertinent to take note of that in respect to the Respondent No.4, the Respondent Authorities permitted the Respondent No.4 to submit the Chartered Accountant (CA) certified turnover certificate for 2019-20 to 2024-25 i.e. for the last six years as it was presumed to be a

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historical document.

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The Petitioner on 28.08.2025 after the decision taken on 27.08.2025 wherein the Petitioner was adjudged as technically non-responsive in respect to the item Mulching Film (20-30 micron) submitted an email along with the BIS certificate dated 26.08.2025 for due consideration. The same was not considered for which the Petitioner has approached this Court by filing the present writ petition on 05.09.2025.

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The records reveal that this Court vide an order dated 08.09.2025 issued notice. No interim directions were issued.

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Pursuant to the filing of the instant writ petition, the Respondents No.3 had filed an affidavit-in-opposition. On the same date, the Petitioner had also filed an additional affidavit. Before taking into account the affidavit-inopposition of the Respondent No.3, this Court finds it pertinent to take note of the contents of the additional affidavit filed by the Petitioner.

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In the said additional affidavit, the Petitioner submitted that the Respondent No.4 neither submitted the turnover certificate along with its bid nor gave any undertaking to submit the same at a later stage and as such, the Technical Committee's decision dated 27.08.2025 to permit the Respondent No.4 to submit the CA Certificate as a historical document was not in accordance with the terms and conditions of the Notice Inviting Tender as well as the extant law. It was further mentioned that at the time of submission of the bid, i.e. on 14.08.2025, the Petitioner submitted an

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undertaking along with an undertaking of the manufacturer together with the fees deposit receipt from the Bureau of Indian Standards with successful payment status on 16.06.2025 i.e. much prior to the publication of the tender dated 17.06.2025. It is therefore the contention of the Petitioner that the BIS Certificate which was uploaded in the website on 26.08.2025 and which the petitioner submitted on 28.08.2025 is a pre-existing document.

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It was also mentioned in the said additional affidavit that at the time of filing the writ petition, the Petitioner inadvertently did not provide the complete test report of CIPET in respect of the Respondent No.5 along with Annexure-8A report dated 16.08.2017. It was mentioned that from the report dated 16.08.2017, it was evidently clear that the Respondent No.5 submitted two CIPET test reports.

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The first is the certificate issued in the name of IRIS Polymer, its manufacturer. But the Respondent No.5 submitted a report dated 16.08.2017 which was prior to the tender specification year 2019 under No.IS:17216:2019.

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Secondly, the test report so submitted is not as per specification but is in relation to IS:2508:1984 which is for Low Density Polythene (LDPE Film) which is different from the requirement.

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It was also mentioned that in terms with the NIT Clause No. 5.3, it was only required to submit the BIS, valid CIPET reports but there was nothing in the said Clause requiring BIS License. It was therefore mentioned that the

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only requirement is standards/certification of valid CIPET report and catalogue of original manufacturer. The required specification is mentioned at Clause 5.1 Serial No.2 i.e. IS:17216:2019 and as per the said specification the valid BIS, valid CIPET test report etc. and the Petitioner had submitted the valid CIPET test report as per specification along with the bid.

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In the said additional affidavit, the Petitioner also enclosed the Minutes of the Departmental Bid Committee held on 04.09.2025 wherein in respect to Plastic Mulching Film (20-30 micron), one bidder in the name and style of “Leisure Lane” was approved as being the L1 rate. In respect to the item at serial No.6 i.e. HDPE Vermibed with Shade, the Respondent No.5 was approved as the L1 rate.

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At this stage, it is relevant to observe that though the Petitioner filed the Additional Affidavit on 26.09.2025, but no attempt was made to challenge the technical evaluation of “Leisure Lane” as well as the evaluation of “Leisure Lane” as the L1 bidder. This aspect is important which this Court would deal at a later stage of the present judgment.

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In the backdrop of the above, let this Court now take note of the affidavit-in-opposition filed by the Respondent No.3. From a perusal of the said affidavit-in-opposition, it is seen that apart from stating the facts as already narrated herein above, it was mentioned that the Petitioner firm failed to submit the BIS certificate at the time of submission of the online bid submission. It was further mentioned that the said BIS certification process was initiated in respect to the Petitioner's original manufacturer on

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16.06.2025 and there is a long process when the BIS License would be granted. It was further mentioned that neither at the time when the BIS certificate was required to be submitted i.e. on 14.08.2025 being the last date for submission of the online bid nor even on the day on which the technical evaluation was carried out, the Petitioner submitted the BIS Certificate. It was further mentioned that the BIS License was a mandatory document which was supposed to be submitted at the time of submission of the online bid submission and the same cannot be accepted after the expiry of the last date of online bid submission i.e. 14.08.2025. Insofar as the Respondent Nos. 4, 5 and 6 were concerned, it was mentioned that the BIS Certificate was submitted as per the bid requirement. The CIPET Certificates were also submitted which was accepted as the validity period of the CIPET Certificate was not mentioned anywhere in the NIT document.

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In addition to that, it was also mentioned that in the CIPET Test Report submitted by the Respondent Nos. 4, 5 and 6, the parameters such as breaking strength before UV exposure, elongation at break before UV exposure, tear strength, puncture strength, chemical resistance, colour fastness to artificial light, water proofness before ageing, etc. were found to be within acceptable range in respect of the HDPE Vermibed with Shade and therefore the CIPET Test Reports were accepted. It was also mentioned that the CIPET Test Reports are formal documents that details the evaluation and test results of plastic materials and products. These reports certify that the tested items meet specific quality, performance and safety standards such as those set by the Bureau of Indian Standards. It was also mentioned that there is no universal validity period for CIPET Test Reports. It depends on

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specific tests performed, the relevant regulatory guidelines and whether the product is a perishable item. It was further mentioned that the Departmental Bid Committee had carried out the financial bid evaluation. The Minutes of the Departmental Bid Committee as well as the comparative chart have been enclosed as Annexures I and II to the affidavit-in-opposition.

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This Court finds it very pertinent at this stage to take note of the comparative chart inasmuch as the present writ petition pertains to two items i.e. item at Serial No. 2 and Serial No.6 of Clause 5.1 of Section V of the Bid Document. In respect to the item at Serial No.2 of Clause 5.1 of Section V of the Bid Document i.e. Plastic Mulching Film (20-30 micron), it is seen that one “Leisure Lane” had been chosen to be the L1 bidder. This aspect assumes importance inasmuch as the Respondent Nos.4, 5 and 6 have not been evaluated as the L1 bidder. In respect to the item at Serial No.6 of Clause 5.1 i.e. HDPE Vermibed with Shade, it is seen that the Petitioner along with five other bidders have been held to be technically responsive. The Petitioner is L5 bidder whereas the Respondent No.5 is L1 bidder; one Krishna Enterprise is L2 bidder; the Respondent No.6 is L3 bidder; one Salasar Agro Service is L4 bidder and the Respondent No.4 is L6 bidder.

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It was further mentioned in the said affidavit-in-opposition that as regards the Respondent No.4, it was registered under the National Small Industries Entity (NSIC), New Delhi and was eligible for exemption from submitting Bid security as per Clause 2.20.3 of the NIT document. The Respondent No.4 submitted its bid in the NIT for only one item i.e. HDPE

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Vermibed with Shade. In the said item, the Respondent No.4 became L6 and the Petitioner was L5 bidder. It was also mentioned that going by the normal practice, the L1 bidder gets the work order and the Respondent No.4 who is the L6 bidder will get work order only if other bidders above him including the Petitioner is not able to fulfill the work order for some reason or the other. It was further mentioned that the Respondent No.4 had submitted the turnover certificate for 2019-2020 to 2021-22. However, as per Clause 4.2.2 of the NIT document as reflected in the Corrigendum, turnover for the year 2020-21 to 2024-25 was required to be submitted. The matter was discussed in the Departmental Bid Committee’s Meeting held on 27.09.2025 and it was decided that as the turnover certificate is a historical document as per Clause 23.15(ii) of the Assam Public Procurement Rules, 2020, therefore the Respondent No.4 should be communicated for submission of the turnover certificate for the rest of the period. It was also mentioned that pursuant thereto, on being complied, the firm was considered technically responsive. In addition to that, it was also mentioned that Form B9 is a checklist of the documents to be submitted and non-submission of the Form B9 cannot be a ground for rejection of the bid.

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Before further proceeding, it is relevant to observe at Paragraph No.13 of the writ petition that the Petitioner had alleged that the Respondent Nos.5 and 6 had submitted oldest CIPET Test report contrary to the valid CIPET test report as reflected in Clause 5.3 Quality Standard in the NIT. It was mentioned that the Respondent Nos. 5 and 6 had submitted the test report of the year 2021 and 2022 which are outdated most irrelevant to the context, not valid inasmuch as the BIS standards have been revised in the

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year 2024. It was also mentioned that the CIPET test report as per specification being IS:17216:2019, the CIPET report so submitted by the Respondent Nos. 5 and 6 could not have been accepted.

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The reply to Paragraph No.13 of the writ petition is at Paragraph No.14 of the affidavit-in-opposition filed by the Respondent No.3 wherein it was mentioned that the period of validity of the CIPET test report was not mentioned anywhere in the bid document and therefore the CIPET test report of the year 2021-22 were also accepted. It was also mentioned that in the case of Mulching Film (20-30 micron), CIPET test report so submitted by the Respondent No.5 were compared with the CIPET test report submitted by another responsive bidder, M/s Shakti Corporation and found that the parameters such as visual appearance, colour, odour, tensile strength, elongation, opacity, carbon black contents, ash contents, tensile strength after UV exposure are measured in both the cases and test values are in the acceptable range. It was further mentioned that in the case of HDPE Vermibed with Shade, the Respondent No.6 submitted two test reports bearing Test Report No.1872 dated 22.07.2024 and 2132 dated 13.09.2021 in which the test values are found within acceptable range for major parameters such as HDPE pipe, HDPE fabric, cord bending, breaking strength, etc. It was also mentioned that the BIS Certificate is not a historical document and therefore the BIS Certificate cannot be accepted after the expiry of the last date of bid submission.

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The record further reveals that the Petitioner filed an affidavit-in-reply wherein apart from reiterating and reaffirming the statements made in the

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writ petition as well as in the additional affidavit, allegations were made that the Petitioner has been unfairly treated by not taking into consideration the BIS Certificate. In addition to that, the Petitioner also enclosed the BIS Certificate dated 01.09.2025 issued to its original manufacturer. The Petitioner also enclosed an Advisory dated 20.12.2024 issued by the Finance (Establishment-B) Department wherein amongst others, it is mentioned that if the bidder had not submitted the turnover certificate, then the same cannot be sought under Rule 23(15) of the Assam Public Procurement Rules, 2020 as this cannot be interpreted as a minor deficiency. It was also mentioned in Clause (vi) of the said Advisory that if the bidder had submitted the turnover certificate but failed to submit the Audited Statement of Accounts, then the same would be accepted.

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SUBMISSIONS MADE BY THE LEARNED COUNSELS FOR THE PARTIES:

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Mr. S. S. Goswami, learned counsel appearing on behalf of the Petitioner submitted that the Respondent Nos. 4, 5 and 6 have been favorably considered and as such, this is a case where fair treatment have not been provided to the Petitioner in procurement of the items while considering the bids. Referring to the Bid Committee Meeting dated 27.08.2025, the learned counsel submitted that the bid so submitted by the Respondent No.4 did not contain the turnover certificate which is necessary in terms with Clause 4.2.2. This aspect is also admitted by the Respondent Authorities in the Bid Committee Meeting dated 27.08.2025. The learned counsel submitted that the explanation so given that the said turnover certificate is a historical document and as such the Respondent No.4 was

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permitted to submit the said document appears to be not only contrary to the Assam Public Procurement Rules, 2020, more particularly Clause 23(15) but also to the Advisory of the Finance Department dated 20.12.2024. The learned counsel for the Petitioner further submitted that in respect to the BIS Certificate which was to be submitted, the said certificate can be said to be a historical document and the said certificate was uploaded on 26.08.2025. Under such circumstances, as the BIS certificate is a historical document, the Respondent authorities ought to have permitted the Petitioner to submit the said document as the Respondent No.4 was permitted to do so and having not done, it violates the mandate of Article 14 of the Constitution.

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On the aspect of the CIPET Certificate, the learned counsel for the Petitioner submitted that the CIPET certificates submitted by the Respondent No.5 and 6 are not valid inasmuch as the BIS standards have been revised in the year 2024. Further to that, the learned counsel submitted that in terms of Clause 5.3 of Section V of the Bid Document, it is clear that the CIPET report has to be valid. The learned counsel for the Petitioner further submitted that the test report so submitted by the Respondent No.6 in respect to the item at Serial No.6 for HDPE Vermibed with Shade, the Respondent No.6 submitted test report as per Standard-1 IS:7903:2017, which was not as per specification.

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Per contra, Mr. B. Choudhury, the learned Standing Counsel appearing on behalf of the Agriculture Department submitted that the Petitioner was required to submit the BIS certificate as per the mandate of the Notice Inviting Tender and have rendered itself as ineligible bidder for item at Serial

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No.2 and therefore, cannot question the technical competence of any other bidder. The learned Standing counsel further submitted that even assuming there was a mistake in accepting the technical bid of the Respondent No.4, but the Respondent No.4 did not participate in respect to item at Serial No.2 in respect to which the Petitioner did not submit the BIS certificate. The learned Standing counsel further submitted that the approved L1 bidder is one “Leisure Lane” against whom the Petitioner had not raised any grievance as regards the technical competence. The learned Standing counsel further submitted that even after knowing that “Leisure Lane” have been approved as the L1 bidder, the Petitioner has not amended the writ petition or challenged the evaluation of “Leisure Lane” as per permissible under law. He therefore submitted that any decision in respect to item at Serial No.2 of Clause 5.1 of Section V of the Bid Document, it would affect the right of “Leisure Lane” who is not a party to the instant proceedings.

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Insofar as the item at Serial No.6 of Clause 5.1 of Section V of the Bid Document, the Petitioner along with five other bidders were held to be technically responsive. In the present proceedings, the Petitioner has raised certain objections as regards the valid CIPET certificate and this very aspect was also duly taken note of and it was found that by the authorities concerned who had technical competence that the said CIPET Certificate submitted by the Respondent No.5 in respect to the item at Serial No.6, i.e. HDPE Vermibed with Shade was in order. The learned Standing Counsel further submitted that the Petitioner then also is L5 bidder and under no circumstances, the Petitioner can get the contract unless and until the four other bidders above it refuse to supply. Therefore, the question of

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interference in the present proceedings does not arise.

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ANALYSIS AND DETERMINATION:

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In the previous segments of the instant judgment, this Court have quoted some of the Clauses of the Notice Inviting Tender as well as certain items and the specifications so required which is the subject matter of the present consideration. The items which are relevant for the present writ petition are at Serial No.2 and Serial No.6 of Clause 5.1 of Section V of the Bid Document. The item at Serial No.2 i.e. Plastic Mulching Film (20-30 micron) and the item at Serial No.6 i.e. HDPE Vermibed with Shade mentions the specifications required. Clause No.5.3 of Section V of the Bid Document further stipulates the standards/certification required in respect to the item at Serial Nos.2 and 6. For both items at Serial No.2 and Serial No.6, the standards/certification required are BIS, valid CIPET test report and catalogue of the original manufacturers.

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Now let this Court deal with the item at Serial No.2 and adjudge whether the power of judicial review are required to be exercised insofar as holding the Petitioner technically non-responsive in respect to the item at Serial No.2.

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This Court finds it pertinent to take note of Clause 2.11.1 of the Bid Document under the heading Preparation of Bids . The said Clause stipulates the necessity of inclusion of various documents for the purpose of preparation of the Bid. Clause 2.11.1(2)(xi) being relevant is reproduced herein under:

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“ 2.11.1(2)(xi) Documents establishing the compliance to the required quality standards of the product offered and of the process followed by the manufacturer in accordance with ITB Para 2.16 and Section V: Schedule of Requirements (Para 5.5) ”

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From a perusal of the above quoted clause, it would be seen that documents establishing the compliance to the required quality standards of the product offered and of the process followed by the manufacturer in accordance with ITB Para 2.16 and Section V: Schedule of Requirements. If this Court now takes note of Clause 2.16 of the Bid Document, it stipulates the documents required for establishing compliance. Clause 2.16 as well as its Sub-Clauses i.e. Clauses 2.16.1 and 2.16.2 being relevant are reproduced herein under:

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“ 2.16 Documents Establishing Compliance

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2.16.1 The Bidder shall furnish as part of its Bid the documentary evidence that the item(s) offered by it, conforms to the required specifications, quality standard and other criteria as specified in Section-V : Schedule of Requirements .

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2.16.2 The documentary evidence may be in the form of literature, drawings, certificate, or data, and shall consist of a detailed item by item description of the essential technical and performance characteristics of the item(s) offered, demonstrating substantial responsiveness of the quality standards & other requirements as per Section V: Schedule of Requirements .”

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A perusal of the above quoted Clauses and more particularly Clause

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2.16.1 stipulates that the bidder is required to furnish as a part of the bid the documentary evidence that the item(s) offered by it conforms to the required specifications, quality standard and other criteria as specified in Section V: Schedule of Requirements. Now taking into account Clause 5.3 of Section V of the Bid Document, more particularly at serial No.2, it would show that there is a requirement of the BIS certification. Admittedly, the Petitioner did not submit the BIS Certificate on 14.08.2025 which was the last date for submission of the online bid as well as the hard copy. This aspect is apparent from the letters issued by Petitioner on 14.08.2025 and 18.08.2025. It is further apparent from the materials on record that it was only on 28.08.2025 that the Petitioner intimated about the uploading of the BIS certificate of its original manufacturer and the hard copy is dated 01.09.2025 as would be seen from the affidavit-in-reply filed by the Petitioner. Therefore, the Respondent Authorities while deciding the technical bid in respect to the item at Serial No.2 held that the Petitioner was technically not responsive for having not submitted the BIS Certificate. The decision so taken by the Respondents in the said technical evaluation committee to hold the Petitioner not responsive for non-submission of the BIS certificate cannot be said to be an act which is unfair and unjust thereby violating the mandate of Article 14 of the Constitution.

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This Court also finds it pertinent to take note of that in respect to the item at Serial No.2, i.e. Plastic Mulching Film (20-30 micron), four bidders were held to be technically responsive but strangely enough, the Petitioner did not find it necessary to implead all of them. There is not a single shred of allegation insofar as “Leisure Lane” is concerned who has been approved

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as the L1 bidder.

¶116

Considering the above, this Court therefore does not find any scope for exercise of its powers for judicial review insofar as the decision of the Respondent Authorities in respect to the item at Serial No.2 i.e. Plastic Mulching Film (20-30 micron) wherein the bidder, namely “Leisure Lane” has been approved as the L1 bidder.

¶117

Now let this Court take the second item i.e. the item at Serial No.6 which is HDPE Vermibed with Shade. At Serial No.6 of Clause 5.1 of Section V of the Bid Document, the specification in respect to the said item HDPE Vermibed with Shade have been duly mentioned. Further to that at Serial No.6 of Clause 5.3, the standards/certifications have been mentioned as BIS, valid CIPET report and catalogue of original manufacturer. There is no denial of the fact that the Respondent No.5 had submitted the CIPET Report and the Technical Evaluation Committee duly compared the same with the CIPET test report submitted by another responsive bidder and found that the parameters such as visual appearance, colour, odour, tensile strength, elongation, opacity, carbon black contents, ash contents, tensile strength after UV exposure are measured in both cases and test values are within acceptable range. The Petitioner pursuant to the stand so taken by the Respondents have filed an affidavit-in-reply that the said evaluation of the CIPET report is not proper.

¶118

It is the opinion of this Court that the technical evaluation committee consisted of persons having technical knowledge and the Technical

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Evaluation Committee having accepted the CIPET Report of the Respondent No.5 to be valid, it would not be proper on the part of this Court in exercise of the powers under Article 226 of the Constitution to find fault in such technical evaluation. Apart from that, it is also seen that the Respondent No.5 is the L1 bidder in respect to the item at serial No.6 and the Petitioner herein is L5 bidder i.e. four other bidders above him.

¶121

The learned counsel for the Petitioner urged that the Petitioner was not fairly treated and on the other hand, the Respondent No.4 was favourably treated by allowing the Respondent No.4 to again submit the CA Certificate pertaining to turnover which under no circumstances can be said to be a historical document. The said submission at the first blush looks attractive but frizzles out on an in-depth analysis. It is required to be taken note of that the Petitioner claims parity of treatment with that of the Respondent No.4 on the basis of a contention raised that the BIS Certificate of the OEM of the Petitioner is a historical document. As already noted, it was incumbent on the part of the Petitioner to submit the BIS Certificate at the time of submission of the Bid i.e. on or before 14.08.2025. It is the admitted case of the Petitioner that till 28.08.2025, nothing was mentioned about the issuance of the BIS Certificate to the OEM of the Petitioner. Therefore, without the BIS Certificate, the Petitioner’s bid was incomplete and technically not responsive insofar as item at Serial No.2 is concerned. It is settled principle of law as held by the Supreme Court in the case of Raunaq International Ltd. Vs. I.V.R. Construction Ltd. & Others reported in (1999) 1 SCC 492 that an ineligible bidder cannot question the settlement in favour of technically competent bidder. Paragraph No.27 of the said

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judgment is reproduced herein below:

¶124

“ 27. In the present case, however, the relaxation was permissible under the terms of the tender. The relaxation which the Board has granted to M/s Raunaq International Ltd. is on valid principles looking at the expertise of the tenderer and his past experience although it does not exactly tally with the prescribed criteria. What is more relevant, M/s I.V.R. Construction Ltd. who have challenged this award of tender themselves do not fulfil the requisite criteria. They do not possess the prescribed experience qualification. Therefore, any judicial relief at the instance of a party which does not fulfil the requisite criteria seems to be misplaced. Even if the criteria can be relaxed both for M/s Raunaq International Ltd. and M/s I.V.R. Construction Ltd., it is clear that the offer of M/s Raunaq International Ltd. is lower and it is on this ground that the Board has accepted the offer of M/s Raunaq International Ltd. We fail to see how the award of tender can be stayed at the instance of a party which does not fulfil the requisite criteria itself and whose offer is higher than the offer which has been accepted. It is also obvious that by stopping the performance of the contract so awarded, there is a major detriment to the public because the construction of two thermal power units, each of 210 MW, is held up on account of this dispute. Shortages of power have become notorious. They also seriously affect industrial development and the resulting job opportunities for a large number of people. In the present case, there is no overwhelming public interest in stopping the project. There is no allegation whatsoever of any mala fides or collateral reasons for granting the contract to M/s Raunaq International Ltd.”

¶125

The law declared by the Supreme Court as noted above makes it abundantly clear that an ineligible bidder cannot question the settlement/award of a contract to any eligible bidder. In respect to the item at Serial No.2, the Respondent No.4 did not submit its bid. The technically

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competent bidder “Leisure Lane” is evaluated as the lowest bidder i.e. L1 and applying the law laid down above, the Petitioner cannot question the evaluation in respect to the item at Serial No.2.

¶128

Now coming to the question of parity of treatment, it is the opinion of this Court that law stipulates parity of treatment amongst the bidders who are qualified. The Respondent Authorities rightly or wrongfully permitted the Respondent No.4 to submit the CA Certificate of Turnover by applying Rule 23(15) of the Assam Public Procurement Rules, 2020 and on the other hand not to speak of the last date of submission of the bid i.e. 14.08.2025 but even on the date of technical evaluation also, it was not clear whether the Petitioner’s OEM would be issued the BIS Certificate. Under such circumstances, it is the opinion of this Court that the principle of parity of treatment cannot be applied as the Petitioner and the Respondent No.4 were not similarly situated. Even otherwise also, the wrong decision to permit the Respondent No.4 to submit the CA Certificate cannot create right upon the Petitioner to submit a document which the Tendering Authority considers it to be essential while submitting the Bid.

¶129

Now let this Court take into consideration the submission made by the learned counsel for the Petitioner insofar as parity of treatment between the Petitioner and the Respondent Nos. 5 and 6. In the opinion of this Court, the said aspect do not apply at all inasmuch as the Petitioner’s allegation is that the CIPET reports so submitted by the Respondent Nos. 5 and 6 in respect to the item at Serial No.6 were not valid but accepted. This Court had duly taken into consideration the stand of the Respondents wherein it was stated

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that the Technical Committee was satisfied with the CIPET reports. It is the opinion of this Court that the jurisdiction under Article 226 of the Constitution of India cannot be stretched to such an extent to decide on the wisdom of the Technical Committee’s acceptance of the CIPET report. In this regard, this Court finds it relevant to refer to the judgment of the House of Lords in ChiefConstable of North Wales Police Vs. Evans reported in (1982) 3 All England Reports 141 wherein the House of Lords observed that the purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized or enjoined by law to decide for itself a conclusion which is correct in the eyes of the Court.

¶132

Considering the above, it is the opinion of this Court that this is not a fit case for exercise of powers of judicial review in respect to the evaluation so carried out by the Respondent Authorities pertaining to the items at Serial Nos. 2 and 6 of Clause 5.1 of Section V of the Bid Document by the Respondent Authorities.

¶133

CONCLUSION:

¶134

This Court does not find any merit in the instant writ petition for which the instant writ petition stands dismissed. No costs.

¶135

Digitally signed by Bijoy Saha Bijoy Date: 2025.11.18 JUDGE Saha 18:26:33 +05'30'

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Comparing Assistant

M/S Puberun a Proprietorial Firm Represented by the Sole Proprietor Shri Purna Mahanta v. the State of Assam and 5 Ors.

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M/S Puberun a Proprietorial Firm Represented by the Sole Proprietor Shri Purna Mahanta v. the State of Assam and 5 Ors.

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