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Gauhati High Court
WP(C)/1597/2024 on 17 June, 2025
GAHC010057382024
2025:GAU-AS:8031
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WRIT PETITION NO.1597/2024
Sri Ranjit Baruah
Son of Late Purendra Nath Baruah
Proprietor of M/s Ranjit Baruah
Natun Tekela Gaon, A.T. Road
P.O. Mohanaghat, Dibrugarh
Pin- 786006
.......Petitioners
-Versus-
1. The State of Assam
Represented by the
Commissioner and Secretary to
the Government of Assam,
Health & Family Welfare
Department, Dispur, Guwahati-
781006.
2. The Secretary
Government of Assam
Health & F.W. (B) Department,
Dispur, Guwahati-781006.
3. The Director of Medical
Education, Assam
Sixmile, Khanapara, Guwahati
Pin- 781002.
4. The Principal-cum-Chief
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Superintendent
Assam Medical College Hospital
Dibrugarh- 786002.
5. The Superintendent
Assam Medical College Hospital
Dibrugarh- 786002.
6. The Tender Committee
Assam Medical College Hospital
Dibrugarh- 786002, represented
by its Chairman
.......Respondents
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Petitioner(s) :Mr. S. Sarma, learned Senior Counsel
assisted by Mr. A. Gautam.
For the Respondent(s) :Mr. B. Gogoi, learned Additional
Advocate General, Assam.
Date of Hearing :05.06.2025.
Date of Judgment :17.06.2025.
JUDGMENT & ORDER (CAV)
Heard Mr. S. Sarma, learned senior counsel
assisted by Mr. A. Gautam, learned counsel appearing for
the petitioner. Also heard Mr. B. Gogoi, learned Additional
Advocate General appearing for the State respondent.
Page 2 of 60
2. By way of this petition under Article 226 of the
Constitution of India, the petitioner is assailing the notice
inviting for re-tender (e-Tender) No.MCH/2024/948 dated
09.01.2024 for providing annual job contract of Dietary
Service to the patient admitted to Assam Medical College
Hospital, Dibrugarh issued by the Superintendent, Assam
Medical College Hospital, Dibrugarh.
3. The brief facts of the case are that pursuant to a
notice inviting for e-Tender through the e-Procurement
system for providing an annual job contract for dietary
service to the patient admitted to Assam Medical College
Hospital, Dibrugarh, bearing No. MCH/2023/25858 dated
03.10.2023 (hereinafter referred to as the first tender),
issued by the respondent Nos. 4 and 5, the petitioner, who
is a government-registered 1st Class Contractor and
Supplier, along with two other bidders, participated in the
said tender. Though, in the technical bid, the petitioner
qualified; however, the financial bid of the petitioner was
not opened.
4. It is the specific case of the petitioner that
thereafter, by notice inviting for re-tender (e-tender)
through the e-Procurement system for providing the same
services as that of the first tender to the patient admitted
to Assam Medical College Hospital, Dibrugarh, bearing No.
MCH/2023/29988 dated 16.11.2023, was issued by the
respondent Nos. 4 and 5 (hereinafter referred to as the
second re-tender). In the said tender process, four bidders,
Page 3 of 60
including the petitioner and proforma respondent No.7,
participated; however, the technical bids of all the bidders
were rejected. Accordingly, for the third time, another
notice inviting for a re-tender (e-tender) through the e-
Procurement system for providing the same service as that
the first tender and second re-tender were issued by the
respondent Nos.4 and 5 vide No. MCH/2024/948 dated
09.01.2024 (hereinafter referred to as the impugned third
tender).
5. It is the specific case of the petitioner that,
having noted the aforesaid advertisement in the newspaper
on 10.01.2024, the petitioner participated in the said
tender process. The proforma respondent No.7 also
participated along with the petitioner. Thereafter, the
technical bids of the two bidders were opened, and upon
being duly qualified, their financial bids were also opened.
However, though the petitioner was found to be the lowest
bidder, notice inviting tenders for the same services as that
of the first tender, second re-tender, and the third
impugned re-tenders were issued in the portal of
Government e-Market (hereinafter referred to as the GeM)
by Bid Document No. GEM/2024/B/4755482 dated
08.03.2024.
6. Aggrieved by the aforesaid issuance of a fresh
tender against the same services for which the petitioner
had been duly qualified as the lowest tenderer, the present
writ petition has been filed.
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7. Mr. S. Sarma, learned senior counsel appearing
for the petitioner, submits that the manner in which the
tender for the subject work has been re-tendered one after
the other despite there being participants and qualified
technical bids itself goes to show the arbitrariness involved
in the decision making process. He further submits that
though the petitioner in the third re-tender was the lowest
tenderer, the authorities, for reasons best known to them,
instead of settling the tender with the petitioner, issued a
fresh tender for the same work through GeM. He further
submits that under the relevant Procurement Act and
Rules, the authorities are bound to communicate the
decision of cancelling the tender and the reasons thereof to
the petitioner, and since the same has not been done, the
respondent No.4 has acted in a mala fide and illegal
manner. He further submits that the communication of
reasons is a facet of principles of natural justice.
8. He further submits that it appears from the
affidavit and subsequent documents placed by the State
Government that after the technical bids of the third re-
tender were opened and scrutinized, the petitioner as well
as the proforma respondent No.7 were found to be
qualified, and the tender committee had specifically taken
the decision that since the two bidders have been found
technically qualified and the tender has already been re-
tendered thrice, to open the financial bid of the qualified
tenderers. He further submits that accordingly the financial
bid of the petitioner as well as the proforma respondent
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No.7 were open; however, instead of settling the tender
with the petitioner, who's bid was the lowest, the
respondent authorities decided to issue fresh tender for the
same work.
9. He further submits that under the Procurement
Act and Rules, the decision for cancellation or for issuance
of a fresh tender has to be made by the procurement
authority i.e. respondent Nos.4 (Principal-cum-Chief
Superintendent, AMCH). However, it is evident from the
affidavit as well as the documents placed by the state
government that the respondent No.4 has merely endorsed
the decision of the tendering committee without any
independent application of mind as required under the
statute. He further submits that it is also evident that the
respondent No.4 in his affidavit-in-opposition filed before
this court and in the additional affidavit filed during the
course of the hearing, has taken a contradictory stand.
10. In support of the aforesaid submission as regards
the communication of reasons, he relies upon the following
decisions of the Apex Court:-
i) Ajantha industries Vs. Central Board of Direct
Taxes reported in (1976) 1 SCC 1001.
ii) C.B. Gautam Vs. Union of India reported in (1993)
1 SCC 78.
11. He further submits that the Office Memorandum
dated 08.01.2024 cannot overrule the provisions of the
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Procurement Act and Rules. He further submits that the
respondent authorities have not followed the provision of
the aforesaid Procurement Act and Rules while taking the
decision of fresh tender by ignoring the lowest bid of the
petitioner in the third re-tender. He further submits that
the impugned office memorandum is also not in
accordance with the provision of the applicable
Procurement Act and Rules. Accordingly, he submits that
the decision to issue a fresh tender for the same work is
totally illegal and arbitrary.
12. In support of his submission that when power is
provided to do a certain thing in a certain way, it should be
done in that way or not at all, he relies upon the following
decisions:-
i) Nazir Ahmad Vs. King-Emperor reported in (1935-
36) 63 IA 372.
ii) Dipak Babaria Vs. State of Gujarat reported in
(2014) 3 SCC 502.
13. In support of his submission that executive
instructions cannot override statutory provision, he relies
upon the following decisions:-
i) B. Srinivasa Reddy Vs. Karnataka Urban Water
Supply & Drainage Board Employees' Assn. and
others reported in (2006) 11 SCC 731 (II).
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ii) Rajasthan State Industrial Development &
Investment Corpn. Vs. Subhash Sindhi
Cooperative Housing Society & Ors reported in
(2013) 5 SCC 427.
14. In support of his submission that the filing of
affidavits is not an empty formality and contradictions
contained therein cannot be left unexplained by the
deponents, he relies upon the following decisions:-
i) Assam Company India Ltd. Vs. Bank of New
York Mellon, London reported in (2014) 5 GauLR
197.
ii) Greater Guwahati United Motor Transport
Association Vs. Gauhati Municipal Corporation &
2 Ors. reported in (1996) 2 GauLR 473.
15. Per contra, Mr. B. Gogoi, learned Additional
Advocate General appearing for the State respondent,
submits that the authorities, in view of the mandatory
requirement of procuring supply of the subject tender
through GeM, cancelled the third re-tender and issued the
fresh tender for the subject work by GeM. He further
submits that the aforesaid decision, having been taken as
per the endorsement of the tender committee as regards
the mandatory requirement of tender through GeM, which
is in accordance with the office memorandum issued under
the Procurement Act dated 08.01.2024, the said decision
ought not to be faulted. He further submits that the
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aforesaid decision being taken in the public interest, this
court ought not interfere with the issuance of the fresh
tender for the subject work.
16. He further submits that though the financial bid of
the selected bidders, i.e., the petitioner and the proforma
respondent No.7 in the third e-Tender, was opened,
however, in view of the decision of the tendering
committee to not go ahead and instead call a fresh tender
through mandatory GeM requirement, the respondent
authorities did not upload the result of the financial bid in
the portal.
17. In support of his aforesaid submissions, he relies
upon the following decisions:-
i) Ramchandra Murarilal Bhatted & Ors. Vs.
State of Maharashtra & Ors. reported in (2007) 2
SCC 588.
ii) Master Marine Services (P) Ltd. Vs. Metcalfe &
Hodgkinson (P) Ltd. & Anr. reported in (2005) 6 SCC
138.
iii) Jagdish Mandal Vs. State of Orissa & Ors. reported
in (2007) 14 SCC 517.
iv) Silppi Constructions Contractors Vs. Union of
India & Anr. reported in (2020) 16 SCC 489.
18. I have given my prudent consideration to the
arguments advanced by the learned senior counsel for the
Page 9 of 60
petitioner as well as the learned Additional Advocate
General for the state respondents and have perused the
material available on record. I have also considered the
citations cited at the bar.
19. It appears that for the subject work, i.e., the
annual job contract of dietary services to the patient
admitted to the Assam Medical College Hospital, Dibrugarh,
initially three tenders were issued: first on 03.10.2023,
second re-tender on 16.11.2023, and third re-tender on
09.01.2024. It appears that in respect of the first tender,
there were three bidders who participated; in the second
re-tender, there were four bidders who participated; and in
the third re-tender, there were two bidders who
participated.
20. It further appears that in respect of the first
tender, only one bid was found to be technically qualified,
and therefore, it was suggested for re-tendering. It further
appears that, in respect of the second tender, no bidders
were found qualified, and therefore, for the third time, a
re-tender had to be called for the subject work. The issue
involved in this writ petition being non-selection of the
petitioner despite being qualified and the lowest tenderer
in the third re-tender, I shall now look into the decision
making process as regards the third re-tender.
21. Apt at this stage to refer to the provisions of the
Assam Public Procurement Act, 2017 (hereinafter referred
to as the Procurement Act).
Page 10 of 60
22. Section 2(g) of the Procurement Act defines "e-
Procurement" as the electronic process wherein the
physical tendering activity is carried out online using the
internet and associated technologies. Section 2(q) of the
said Act defines "notification" as a notification published
in the official gazette. Section 2(r) of the said Act defines
"prescribed" as prescribed by rules made under the said
Act. Section 2(x) of the said Act defines "procuring
entity" to mean an entity referred to in subsection (2) of
Section 3. Section 3 of the said Act reads as under:-
"3. Application.-(1) This Act shall apply to all procuring
entities referred to in sub-section (2).
(2) For the purposes of this Act, "procuring entity" means,-
(a) any department of the State Government or its
attached or subordinate office;
(b) any State Public Sector Enterprise owned or
controlled by the State Government;
(c) any entity established or constituted by the
Constitution of India whose expenditure is met from
the Consolidated Fund of the State,
(d) any entity or board or corporation or authority or
society or trust or autonomous entity (by whatever
name called) established or constituted by an Act of
the State Legislature or an entity owned or controlled
by the State Government;
(e) any other entity which the State Government may,
by notification, specify to be a procuring entity for the
purpose of this Act, being an entity that receives
substantial financial assistance from the State
Government in so far as the utilization of such
assistance towards procurement is concerned.
(f) any procurement support agency or procurement
agent or procurement consultant involved in
procurement on behalf of the procuring entities
specified in clauses (a) to (e) above.
Page 11 of 60
(3) The State Government may, by notification, permit the
procuring entities to carry out procurement, financed
under the assistance from the multilateral development
banks, bilateral development agencies, or foreign
governments or pursuant to an inter-governmental
agreement, in accordance with the procurement
procedures stipulated in terms of such assistance or
agreement:
Provided that before granting permission, the State
Government shall satisfy itself that the procurement
procedures stipulated in terms of such assistance or
agreement, are in consonance with the basic norms of
public procurement specified in sub-section (1) of Section
4.
4) Subject to such rules as may be made in this behalf
consistent with the provisions of Sections 4 and 11, the
provisions of Chapters II and III shall not apply to,-
(a) any procurement the estimated cost or value of
which is less than the threshold value as Finance
Department of the State Government may, by
notification, specify for different classes or
categories of procurements or procuring entities;
(b) emergency procurement necessary for the
management of any disaster, as defined in clause
(d) of Section 2 of the Disaster Management Act,
2005 (Central Act No. 53 of 2005);
(c) the procurement under Assembly and
Parliamentary election urgency;
(d) procurement for the purposes of security or on
strategic considerations that the State Government
may, by general or special order, specify;
(e) procurement by a procuring entity under clause
(b) to clause (e) of sub-section (2) of Section 3 from
its subsidiary company or joint venture company in
which such procuring entity has more than fifty
percent share;
(f) any other procurement, as may be notified by
Finance Department.
Page 12 of 60
23. Reading Section 3 of the Procurement Act, it is
clear that the procuring entity means, among others, any
department of the state government or its attached or
subordinate office. In the present case, admittedly, the
respondent No.4 i.e the principal-cum-superintendent, is
the procuring entity.
24. Section 26 of the Procurement Act, which
provides cancellation of the procurement process, reads as
under:-
"26. Cancellation of the procurement process. (1) A
procuring entity may, for reasons to be recorded in
writing, cancel the process of procurement initiated by it,-
(a) at any time prior to the acceptance of the
successful bid; or
(b) after the successful bid is accepted in accordance
with sub-sections (4) and (5).
(2) The procuring entity shall not open any bids or
proposals after taking a decision to cancel the procurement
and shall return such unopened bids or proposals.
(3) The decision of the procuring entity to cancel the
procurement and reasons for such decision shall be
immediately communicated to all bidders that participated
in the procurement process.
(4) If the bidder whose bid has been accepted as
successful fails to sign any written procurement contract
as required, or fails to provide any required security for the
performance of the contract, the procuring entity may
cancel the procurement process after forfeiting the bid
security provided by the bidder to the State Government.
(5) If a bidder is convicted of any offence under this
Act, the procuring entity may,-
(a) cancel the relevant procurement process if the
bid of the convicted bidder has been declared as
successful but no procurement contract has been
entered into;
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(b) rescind the relevant contract or forfeit the
payment of all or a part of the contract value if the
procurement contract has been entered into
between the procuring entity and the convicted
bidder."
25. Reading the aforesaid provision, it is clear that
the procuring entity is empowered under the provision of
the Procurement Act to cancel the procurement process;
however, under subsection 3 of Section 26, the decision of
the procuring entity to cancel the procurement and the
reasons for such decision are required to be communicated
to all bidders that participated in the procurement process
immediately.
26. Section 28 provides the methods of procurement,
which reads as under:-
"28. Methods of procurement.-(1) Subject to the
provisions of this Act and the rules made thereunder, a
procuring entity may procure a subject-matter of
procurement by means of any of the following methods,
namely:-
(a) Open Competitive Bidding; or
(b) Limited Bidding; or
(c) Two stage Bidding; or
(d) Single Source Procurement; or
(e) Electronic Reverse Auction; or
(f) Request for Quotations; or
(g) Spot Purchase; or
(h) Competitive negotiations; or
(i) Rate Contract or Government E-Market (GeM);
(j) Framework agreement; or
(k) e-commerce; or
(l) community procurement for community driven
schemes; or
(m) Swiss Challenge; or
Page 14 of 60
(n) any other method of procurement notified by the
State Government satisfying the principles of
procurement contained in this Act and which the
State Government considers necessary in public
interest.
(2) The State Government may, by notification, declare
adoption of electronic procurement as compulsory for
different stages and types of procurement, and on such
declaration, every requirement for written communication
under this Act shall be deemed to have been satisfied if it
were done by electronic means.
(3) In procuring a subject-matter of procurement, every
procuring entity shall follow the detailed procedure in
respect of the relevant method of procurement as may be
prescribed in the Rules made under this Act."
27. Reading the aforesaid provision, it is clear that
under subsection 1 of Section 28, the methods of
procurement, inter-alia, are open competitive bidding, rate
contract, or GeM. Subsection 2 of Section 28 provides that
the state government may, by notification, declare
adoption of electronic procurement as compulsory for
different stages and types of procurement, and on such
declaration, every requirement for written communication
under this act shall be deemed to have been satisfied if it
were done by electronic means. Admittedly, in the case in
hand, the subject procurement is done by way of electronic
means. Further, it is clear that under subsection 3 of
Section 28 of the said Act, every procuring entity shall
follow the detailed procedure in respect of the relevant
method of procurement as may be prescribed in the rules
made under this Act.
Page 15 of 60
28. Section 29 of the Procurement Act provides the
manner in which the open competitive bidding is done,
which reads as under:-
"29. Open competitive bidding.-(1) Every
procuring entity shall prefer the open competitive
bidding as the most preferred method of
procurement to be followed.
(2) Open competitive bidding may also be
followed in case of two stage bidding in terms of
Section 32, electronic reverse auction in terms of
Section 33 and rate contract in terms of, Section
36.
(3) The procuring entity may follow the pre-
qualification procedure specified in Section 18 and
invite bids from pre-qualified bidders only.
(4) Where the procuring entity chooses a
method of procurement other than the open
competitive bidding, it shall record the reasons and
circumstances thereof.
(5) In case of an open competitive bidding,
the procuring entity shall invite bids by publishing
an invitation to bid on the State Public Procurement
Portal and in at least one such other manner as
may be prescribed."
29. Reading the aforesaid provision, it is clear that
opening competitive bidding is the most preferred method
of procurement to be followed by every procuring entity.
However, if the procuring entity wants to adopt any other
method as provided under Section 28 of the said Act, it is
required to record the reasons and circumstances thereof.
30. Sections 36 of the Procurement Act provides the
manner in which the rate contract and GeM are done,
which reads as under:-
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"36. Rate contract and Government E-Market (GeM).
(1) Rate Contract:
(a) A procuring entity may choose to engage in a rate
contract procedure in accordance with the rules as
may be made in this behalf, under this Act where it
determines that
(i) the need for the subject-matter of procurement
is expected to arise on an indefinite or repeated
basis during a given period of time;
(ii) by virtue of the nature of the subject-matter of
procurement, the need for it may arise during a
given period of time.
(b) A procuring entity may award a rate contract on
the basis of open competitive bidding or by means of
other procurement methods in accordance with the
provisions of this Act.
(c) Subject to the rules as may be made in this behalf,
the procedure for rate contract shall include the
following, namely:-
(i) the manner in which rate contract is to be
entered into, including selection of the method of
bidding to be followed; and
(ii) the manner in which a procurement contract
has to be entered into using rate contract
procedure.
(2) Government E-Market (GeM):
(a) Director-General Supplies and Disposal
(DGS&D) hosts an online Government e-Market
Place (GeM) on pilot basis, for common use goods
and services. The electronic and online
procurement process on GeM is end to end from
placement of supply order to payment to suppliers.
(b) Government Procuring Entities (including State
Government entities) at their option may view,
compare and directly purchase online, the Products
and services offered by various suppliers on GeM
under such conditions, as may be prescribed by
the Government.
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(c) The procedure and details of procurement thru
the GeM shall be such as may be prescribed by the
Government.
31. Reading the aforesaid provision, it is clear that a
procuring entity is also empowered to adopt a rate contract
procedure, which can be on the basis of open competitive
bidding or by means of other procurement methods as
provided under the said Act. It is further clear that the
procedure for the rate contract is required to be laid down
in the rules. It is further clear that the GeM is also adopted
by Director General Supplies and Disposal on pilot basis for
common use of goods and services and such electronic and
online procurement process on GeM is end to end from
placement of supply order to payment to suppliers. It is
further clear that it is the discretion of the procuring entity
to view, compare, and directly purchase online the
products and services offered by various suppliers on GeM.
It is further clear that the procedure and details of such
procurement shall be prescribed by the government.
32. Section 55 of the Procurement Act provides the
power of the state government to make rules, inter-alia,
for providing the procedure in respect of various methods
of procurement under Section 28 of the said Act. That
apart, it appears that under Section 56 of the said Act, the
state government is also empowered to issue guidelines
giving details of procedure or general forms or standard
specifications and manuals required for giving effect to the
provisions of this Act and the Rules made thereunder.
Page 18 of 60
33. Apt also to refer to the relevant rules of the
Assam Public Procurement Rules, 2020 (hereinafter
referred to as Procurement Rules). Rule 24 of the said
rules reads as under:-
"24. Methods of procurement and procedures
thereof.- Every procuring entity shall follow the
procedure in respect of the chosen methods of
procurement as mentioned in sub-section (1) of
Section 28 of the Act for a particular procurement.
A procuring entity, may choose different methods of
procurement specified in sub-section (1) of Section
28 of the Act, if deemed more advantageous and
appropriate after recording the specific reasons
and circumstances in writing for so choosing in
exception to the preferred method i.e. Open
Competitive Bidding method in terms of sub-section
(4) of Section 29 of the Act, such specific reasons
and circumstances shall be recorded in the case
file and clearly noted in the procurement register
indicating the name and designation of the
procurement entity making the decision.
Procedures to be followed for various methods of
procurement are as follows:-
(A) Procedure for Open Competitive Bidding :-
(i) Subject to the provisions in the Act and the
general principles of procurement, the procedure
laid down under these rules shall be followed by
all procuring entities in cases of all procurement
through Open Competitive Bidding.
(ii) There shall be no restriction on participation of
eligible bidders in Open Competitive Bidding. This
shall include eligible bidders not registered with
the procuring entity as well as foreign bidders
bidding in Indian rupees. If bidders are required to
be pre-qualified, the procedure for pre-qualification
of bidders prescribed under these rules shall be
followed.
Page 19 of 60
(iii) The date for opening of bids shall be fixed after
at least twenty one clear days counted from the
date of publication of the latest advertisement
inviting bids.
(iv) Open Competitive Bidding at global level, i.e.
International Competitive Bidding (ICB), with
provisions to bid in the currencies under the
notified Basket of Currencies of the Reserve Bank
of India, shall be resorted to in cases where :-
(a) The required specifications, quality of the
subject-matter are not available within the nation,
and alternatives available in the nation are not
suitable for the purpose;
(b) There is requirement for compliance to specific
inter- national standards in technical specifications
and sufficient number of competent domestic
bidders that are likely to comply with these
required technical specifications and quality are
not available;
(c) There is a suspected anti-competitive behaviour
attracting provisions of Competition Act, 2002
(Central Act 12 of 2003) as amended among
indigenous bidders;
(d) Any other reason for which International
Competitive Bidding is considered to be
appropriate by the procuring entity or the
concerned Administrative Department :
Provided that date for opening of bids shall be
fixed after at least forty-five clear days counted
from the date of publication of the latest
advertisement inviting bids in case of International
Competitive Bidding.
(B).....
(C).....
.........
(H)……
(I) Rate contract and Government E-Market
(GeM) :-
(1) Rate Contract :-
(i) Subject to the satisfactions of the conditions
contained in clause (a) of sub-section (1) of Section
36 of the Act, a procuring entity may engage in aPage 20 of 60
rate contract procedure in accordance with the
provisions laid down herein below.
(ii) The procedure for concluding rate contracts and
for procurement in the rate contract method shall
consist of two phases. In the first phase, the rate
contracts, including parallel rate contracts, where
required, shall be concluded through Open
Competitive Bidding without any commitment of
quantum of procurement. In the second phase,
procurement of the particular subject-matter in the
required quantities, as essential and necessary to
satisfy the public need, may be made from time to
time by issue of supply or work orders at those
rates during the period of the rate contract.
(iii) In the first phase, single envelope or two
envelope bids, in terms of Section 13 of the Act,
shall be invited by issuing Notice Inviting Bids as
in the Open Competitive Bidding method and
incorporating the following conditions in the bid
documents :
(a) In the Bidding Documents, including NIB,
approximate quantities of the requirement
estimated on the basis of the annual off take shall
be indicated along with the specifications thereof
wherein it shall also be specifically mentioned that
no minimum quantity of procurement is
guaranteed;
[(b) The period of the rate contract shall be clearly
indicated in the Notice Inviting Bids and the other
Bidding Documents. The period of rate contracts
shall normally be one year from the date of
contract but may be shorter if the procurement
entity arrives at a reasoned conclusion that market
prices would fall significantly in the short term. A
shorter period may be selected and specified in the
bidding documents by the procuring entity after
recording the reasons thereof in writing in the case
file which shall form part of the procurement
records;]
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(c) The terms and conditions of the rate contract,
including provision for liquidated damages, shall
be similar to those prescribed for procurement by
Open Competitive Bidding;
(d) A clause to the effect that the procuring entity or
the rate contractor are both entitled to withdraw or
cancel the rate contract by serving due notice on
such other giving not less than fifteen (15) days’
time;
(e) A clause to the effect that the procuring entity
reserves its right to renegotiate the price with the
rate contract holders during the validity of the rate
contract;
(f) The rate contract shall be entered into for price,
without commitment for quantity and time of
supply of the subject-matter of procurement, with
the bidder of the lowest riced bid or most
advantageous bid fulfilling the
laid down eligibility and qualification criteria
including past performance against such rate
contract, availability of ISI mark or service centres
across the State and such other criteria as required
and these conditions as applicable shall be
specified in the bidding documents;
(g) The procuring entity shall also reserve its right
to conclude parallel rate contacts with different
bidders, in addition to the responsive bidder
submitting the lowest priced bid or most
advantageous bid, but at the rates of such bidder;
(h) That, in case the price quoted by the lowest
responsive bidder is not reasonable or found to be
high, the price may be negotiated with lowest
responsive bidder with whom the rate contract may
be concluded consequent only upon lowering of the
bid price to the desired level. If otherwise, fresh
bids shall be invited;
(i) The prices under a rate contract shall be
invariably subject to ‘price fall clause’ and this
shall be specified in the bidding documents. A
Page 22 of 60
clause regarding price fall shall be incorporated in
the terms and conditions of rate contract:
Explanation I: A price fall clause is a price safety
mechanism in rate contracts which provides that if
the original rate contract holder quotes a lesser
price or reduces its price to render similar goods,
works or services of a price lower than the rate
contract price to anyone in the State, at any time,
during the validity of the rate contract, the rate
contract price shall be automatically lowered or
reduced accordingly to such lesser or reduced price
quoted for the subject-matter of procurement with
effect from the date of such quoting or reducing,
and the rate contacts shall also be amended
accordingly.
Explanation II: In such cases, the firms holding
parallel rate contracts shall also be given
opportunity to reduce their price by notifying the
lowered or reduced price allowing them fifteen
days’ time to intimate their acceptance to the
revised price. Similarly, if a parallel rate contract
holder firm reduces its price during the currency of
the rate contract, its reduced price shall be
conveyed to other parallel rate contract holders as
well as the original rate contract holder for
corresponding reduction in their prices. If any rate
contract holders do not agree to the reduced price,
further transaction with it shall not be conducted;
(iv) If, consequent to invitation of bids, only one bid
is received, or consequent to technical evaluation, if
only one bid is found eligible or qualified, such bid
shall be termed as ‘single bid’ in respect of that
subject-matter of procurement or item and in all
cases where such single bid is received, bids may
be handed on the lines of procedure laid down in
sub-rule (20) of Rule 23.
(v) Rate contracts for Machine Tools, Information
Technology Product, Original Equipment
Manufacturer and Ancillary spares and other
similar such products, where the design feature,
performance parameters, etc., vary significantly
among the products of different manufacturers and
even between different models of the samePage 23 of 60
manufacturer and where equitable comparison of
prices of such products or services is not feasible,
may be finalised and concluded on the offered
percentage of discount on Net Dealer Price (NDP) or
discounted MRP basis, generally known as
“Catalogue basis”.
(vi) Parallel rate contracts :-
(a) If the quantity of the subject-matter of
procurement required is beyond the capacity of the
lowest bidder or the subject-matter of procurement
is of a critical or vital nature, rate contracts may be
entered with more than one bidder in the order of
their standing in the final evaluation of bids but at
the successful lowest bid rate as parallel rate
contracts :
Provided that such provision for parallel rate
contracts is specified in the bidding documents.
(b) Where parallel rate contracts are needed though
the price of lowest responsive bidder is reasonable,
the rate contract shall first be awarded to such
lowest responsive bidder. Thereafter, the price of
such lowest bidder shall be counter- offered to the
responsive bidder quoting the next higher rate, or
rates in case more than one parallel rate
contractors are needed, with intimation to the
lowest bidder, asking them if they so desire to
reduce their price and send revised bids
accordingly in sealed covers or on e-procurement
platform, to be opened in public at a specified
place, date and time as per the prescribed
procedure. Bidders who accept the counter-offered
rate or rate lower than it shall be awarded parallel
rate contracts. If the lowest bidder also lowers its
rate in its revised offer, the same may also be
accepted with effect from that date and its rate
contract amended accordingly. All such parallel
rate contracts shall be awarded simultaneously for
the sake of transparency.
(c) In cases where parallel rate contracts are
necessary, and where even the bid quoted by thePage 24 of 60
lowest responsive bidder is not reasonable, price
negotiation shall be conducted with that bidder in
the first instance. The rate contract may be
concluded if that bidder agrees to bring down the
price to the desired level and that price may be
counter offered to other responsive bidders for
further action in identical manner as prescribed in
clause (b) above. If however, the lowest bidder
does not agree to reduce its price in the first
instance itself, then the price which has been
decided as reasonable may be counter offered to
all the other responsive bidders who had quoted
higher price and also to the lowest bidder for
further action as in clause (b) above.
(vii) In the second stage, the supply or work order
shall be placed to the rate contractor as and when
needed at the contracted price for supply or
execution of the required quantity of the subject-
matter of procurement mentioning the place of
supply or execution and the delivery schedule.
[(viii) The procuring entities shall ensure new rate
contracts become operative right after the expiry of
the existing rate contracts without any gap. In case
it is not possible to conclude the new rate contracts
due to unavoidable reasons, the existing rate
contracts may be extended at the same rates,
terms and conditions for a further period not
exceeding another one year after ascertaining that
the wholesale market prices of the subject-matter
of procurement or its constituents have not fallen
during the period.]
(ix) Except as otherwise provided for in this rule, all
other provisions of these rules shall, mutatis
mutandis, apply to procurement by rate contracts.
[(x) For procurements using rate Contract, if it is
estimated that the value of procurement shall
exceed beyond the e- procurement threshold in a
Financial Year, then the Rate Contract has to be
done mandatorily through the e-procurement mode.
For Rate Contracts done through offline mode, the
procuring entity should ensure that the e-
Page 25 of 60
procurement threshold is not crossed during the
entirety of the contract period and extension (if
any).]
(2) Government E-Marketplace (GeM) :-
(i) Procuring entities may, as appropriate in the
public need and interest, utilise the Government E-
Marketplace (GeM) facility for purchase of their
essential common use needs determined as
available therein, subject to the provisions of the
Act, the guidelines that may be notified in this
regard by the State Government, and, without
exception, the condition that the rates for the items
offered by suppliers the GeM or the total cost
involved thereof are not higher than the prevailing
wholesale market prices in the State or the
discounted rates of authorised dealers in the State
or applicable.
(ii) The procuring entities shall fulfil the
requirements of the GeM portal pertaining in
publication of their annual requirements for the
common use goods and services on GeM within
thirty days of approval of the annual budget. The
demand for such goods and services shall not be
divided into small quantities to make piecemeal
purchases for avoiding procurement through L-1
buying or bidding or reverse auction of the GeM.
(iii) All such procurements through GeM shall be
subject to the prior sanction of the concerned
compounding authority with reference to the
relevant Delegation of Financial Power Rules in
respect of the subject-matter and value of the
procurement.
(iv) The State Government in Finance Department
shall notify the detailed guidelines for such on-line
procurement through GeM, together wit the mode
and procedure for making payments to the
registered suppliers thereof, and may be also
prescribe financial ceiling or any other conditions
for the purpose.”
34. Reading the aforesaid Rules, it appears that the
procuring entity may choose different methods of
procuring specified in subsection 1 of Section 28 of the
Page 26 of 60
Procurement Act if they are more advantageous and
appropriate after recording the specific reasons and
circumstances in writing for so choosing an exception to
the preferred methods, i.e. the open competitive bidding
method in terms of subsection 4 of Section 29 of the said
Act, and that such specific reasons and circumstances shall
be recorded in the case file and clearly noted in the
procurement register, indicating the name and designation
of the procuring entity making the decision. Thus, it is clear
that it is the procuring entity that has been given the
discretion under the statute to decide the procuring
method to be adopted in respect of a particular
procurement, which preferably shall be done by open
competitive bidding; however, the procuring entity may
differ from the said preferred method and instead choose
any other method as mentioned in subsection 1 of Section
28 of the said Act. In such an event, it is imperative under
the provision of the rule that, firstly, the procuring entity is
satisfied that such adoption of a different method of
procurement is more advantageous and appropriate, and
secondly, such reasons and circumstances for choosing an
exception to the preferred method of open competitive
bidding are specifically recorded in writing. It is further
clear that such reasons and circumstances have to be
recorded clearly in the case file and the procurement
register with the name and designation of the procuring
entity making the decision. It further appears that the
procuring entities, in the larger interest of the public may
utilize the GeM for the purchase of their essential common-
Page 27 of 60
use needs determined as available therein; however, in
strict compliance with the provision of the Act and the
Rules made thereof, and the guidelines that may be
notified in this regard by the state government.
35. What transpires thus from the above is that under
the Procurement Act and Rules, the procuring entity in the
larger public interest has the power to procure essential
common use needs through the GeM. However, while
taking the decision of availing the facility of the GeM for
the purchase of such essential services and commodities,
the procuring entity is bound by the provisions of the
Procurement Act and Rules made thereof, and the
guidelines that may be notified in this regard, and all such
procurement through GeM shall be subject to the prior
sanction of the concerned compounding authority, and also
the state government in the Finance Department is
required to notify.
36. Turning back to the facts of the instant case, it
appears from the records pertaining to the subject tender
made available to the court by the learned Additional
Advocate General that the tender committee, in their
minutes of the tender financial bid opening meeting held
on 12.02.2024, were of the opinion that since there were
only two bidders participating in the process, in order to
have better participation and involvement of more numbers
of bidders to ensure the quality, fresh tender be resorted.
Accordingly, the committee members recommended the
Page 28 of 60
respondent No.4 to float a fresh tender through the GeM
portal. The short question is thus whether the procurement
entity, i.e., respondent No.4, who is the competent
authority under the provision of the Procurement Act has
taken a decision to choose the GeM method for the subject
procurement, by cancelling the third re-tender done by the
preferred method of open competitive bidding, in
accordance with the provisions of the Procurement Act and
Rules made thereof as discussed above or not, and in the
event such a decision has been taken in accordance with
the Act and Rules, whether the decision making process is
free from the vice of arbitrariness.
37. The principles of judicial review in respect of
contractual methods are well settled, and the same are
applicable only in order to prevent arbitrariness or
favoritism. Undoubtedly, the government being the
guardian of the finances of the state, it is expected from
the government to protect the financial interests of the
state. Hence, the right to refuse the lowest or any other
tender is always available to the government; however, the
same cannot be done contrary to law and/or in an arbitrary
manner. The public authorities are governed by the rule of
law, and therefore, such authorities are constitutionally
obligated to maintain complete fairness and transparency
during the entire process of tender and in taking decisions
thereof. Thus, it is not the merit of the decision that a writ
court is concerned with but the decision making process.
In short, the power of judicial review is not an appeal from
Page 29 of 60
the decision. The writ court, while exercising judicial review
in reviewing the decision making process, is concerned as
whether a decision making authority exceeded its power,
committed an error of law, committed a breach of rules of
natural justice, reached a decision that no reasonable
tribunal would have reached, or, abused its powers. In
other words, the writ court is not determining whether a
particular policy or particular decision adopted by the
government is fair but is only concerned with whether the
manner in which such decisions have been taken. The
Apex Court in the case of M/s Star Enterprises and
Ors. Vs. City and Industrial Development
Corporation of Maharashtra Ltd. and Ors.,
reported in (1990) 3 SCC 280 emphatically laid down the
necessity of judicial review of the administrative actions
and decisions in relation to the commercial field as under:-
“10. In recent times, judicial review of administrative
action has become expansive and is becoming wider
day by day. The traditional limitations have been
vanishing and the sphere of judicial scrutiny is being
expanded. State activity too is becoming fast
pervasive. As the State has descended into the
commercial field and giant public sector undertakings
have grown up, the stake of the public exchequer is
also large justifying larger social audit, judicial control
and review by opening of the public gaze; these
necessitate recording of reasons for executive actions
including cases of rejection of highest offers. That
very often involves large stakes and availability of
reasons for actions on the record assures credibility to
the action; disciplines public conduct and improves
the culture of accountability. Looking for reasons in
support of such action provides an opportunity for an
objective review in appropriate cases both by the
administrative superior and by the judicial process.
Page 30 of 60
The submission of Mr Dwivedi, therefore, commends
itself to our acceptance, namely, that when highest
offers of the type in question are rejected reasons
sufficient to indicate the stand of the appropriate
authority should be made available and ordinarily the
same should be communica-ted to the concerned
parties unless there be any specific justification not to
do so.”
38. The grounds upon which an administrative action
is subject to control by judicial review have been
subsequently laid down by the Apex Court in the decision
of the Apex Court in the case of Tata Cellular Vs. Union
of India, reported in 1994 6 SCC 651 as under:-
“(i) Illegality : This means the decision- maker must
understand correctly the law that regulates his
decision making power and must give effect to it.
(ii) Irrationality, namely, Wednessbury
unreasonableness. It applies to a decision which is so
outrageous in its defiance of logic or of accepted moral
standards that no sensible person who had applied
his mind to the question to be decided could have
arrived at. The decision is such that no authority
property directing itself on the relevant law and acting
reasonably could have reached it.
(iii) Procedural impropriety.”
39. Relevant paragraphs of the said judgment of the
Apex Court are reproduced hereunder for ready reference:-
“77. The duty of the court is to confine itself to the
question of legality. Its concern should be:
Page 31 of 60
1. Whether a decision-making authority
exceeded its powers?
2. Committed an error of law,
3. committed a breach of the rules of natural
justice,
4. reached a decision which no reasonable
tribunal would have reached or,
5. abused its powers.
Therefore, it is not for the court to determine whether
a particular policy or particular decision taken in the
fulfilment of that policy is fair. It is only concerned
with the manner in which those decisions have been
taken. The extent of the duty to act fairly will vary
from case to case. Shortly put, the grounds upon
which an administrative action is subject to control by
judicial review can be classified as under:
(i) Illegality : This means the decision-
maker must understand correctly the law that
regulates his decision making power and must
give effect to it.
(ii) Irrationality, namely, Wednessbury
unreasonableness. It applies to a decision which
is so outrageous in its defiance of logic or of
accepted moral standards that no sensible
person who had applied his mind to the question
to be decided could have arrived at. The decision
is such that no authority property directing itself
on the relevant law and acting reasonably could
have reached it.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not
rule out addition of further grounds in course of time.
As a matter of fact, in R. v. Secretary of State for the
Home Department, ex Brind 28, Lord Diplock refers
specifically to one development, namely, the possible
recognition of the principle of proportionality. In all
these cases the test to be adopted is that the court
Page 32 of 60
should, “consider whether something has gone wrong
of a nature and degree which requires its
intervention.
78….
79….
….
93…
94. The principles deducible from the above are:
(1) The modern trend points to judicial restraint in
administrative action.
(2) The court does not sit as a court of appeal but
merely reviews the manner in which the decision was
made.
(3) The court does not have the expertise to correct the
administrative decision. If a review of the
administrative decision is permitted it will be
substituting its own decision, without the necessary
expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be
open to judicial scrutiny because the invitation to
tender is in the realm of contract. Normally speaking,
the decision to accept the tender or award the
contract is reached by process of negotiations through
several tiers. More often than not, such decisions are
made qualitatively by experts.
(5) The Government must have freedom of contract. In
other words, a fair play in the joints is a necessary
concomitant for an administrative body functioning in
an administrative sphere or quasi-administrative
sphere. However, the decision must not only be tested
by the application of Wednesbury principle of
reasonableness (including its other facts pointed out
above) but must be free from arbitrariness not
affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy
administrative burden on the administration and lead
to increased and unbudgeted expenditure.”
40. Reading the aforesaid judgment, it is clear that
the authorities have to be very cautious while exercising
Page 33 of 60
their discretion in the said administrative actions and
decisions.
41. In the case of Union of India and Ors. Vs
Dinesh Engineering Corporation and Anr.,
reported in (2001) 8 SCC 491, the Apex Court has
explained the manner in which the public authorities are
obligated to use their above-mentioned discretionary
power as under:-
“16. But then as has been held by this Court in the
very same judgment that a public authority even in
contractual matters should not have unfettered
discretion and in contracts having commercial
element even though some extra discretion is to be
conceded in such authorities, they are bound to
follow the norms recognised by courts while
dealing with public property. This requirement is
necessary to avoid unreasonable and arbitrary
decisions being taken by public authorities whose
actions are amenable to judicial review. Therefore,
merely because the authority has certain elbow
room available for use of discretion in accepting
offer in contracts, the same will have to be done
within the four corners of the requirements of law,
especially Article 14 of the Constitution. In the
instant case, we have noticed that apart from
rejecting the offer of the writ petitioner arbitrarily,
the writ petitioner has now been virtually debarred
from competing with EDC in the supply of spare
parts to be used in the governors by the Railways,
ever since the year 1992, and during all this while,
we are told the Railways are making purchases
without any tender on a proprietary basis only
from EDC which, in our opinion, is in flagrant
violation of the constitutional mandate of Article 14.
We are also of the opinion that the so-called policy
of the Board creating monopoly of EDC suffers from
the vice of non-application of mind, hence, it has to
be quashed as has been done by the High Court.”
Page 34 of 60
42. Viewed thus, it is clear that the state authorities
have a discretionary power to award government contracts
to the successful bidder/tender if he/they have
substantially complied with the essential conditions of the
tender document issued by such authority and/or cancel
the tender and if required, go for a fresh tender. True that,
the said power is not unfettered; however, the same must
be exercised by the state authorities within the four
corners of Article 14 of the Constitution. In other words,
the judicial power of review is exercised to rein in any
unbridled executive function. Meaning thereby, the “tender
jurisdiction” is vested in this court under Article 226 of the
Constitution so as to ensure greater accountability,
credibility, and transparency on the part of such
authorities. However, the same is limited; that is to say,
only if the said administrative action and/or decision of the
state authority under consideration is arbitrary, biased,
irrational, mala fide, or unreasonable. Procedural
irregularities or errors in assessment, which may be
trumped by the consideration of public interest, are no
grounds for such interference. Therefore, this court ought
not to embark upon making a technical analysis of the
tender document, as the same falls within the exclusive
domain of the author thereof. The test is thus to find the
right balance between the administrative discretion to
decide contractual matters vis-à-vis arbitrariness and
unfairness, which are essentially not justiciable, and the
Page 35 of 60
need to remedy any such arbitrariness and unfairness.
That being so, the duty of the court is to confine itself to
the question of the legality of the tender process on the
touchstone of Article 14 of the Constitution of India. In
short, arbitrariness and unfairness are set right by the writ
court by exercising judicial review.
43. Keeping the aforesaid principles in mind, I shall
now judicially review the decision of the respondent No.4
in choosing the GeM method over the open competitive
method by cancelling the third re-tender.
44. Apt at the outset to refer to the affidavit-in-
opposition filed on behalf of the respondent No.4 on
13.08.2024 to ascertain the manner in which the
respondent No.4 has taken the decision to cancel the
subject third re-tender and initiate a fresh tender. The
relevant paragraph of the affidavit in opposition reads as
hereunder:-
“4. That with regard to the statements made in
paragraph 2 of the writ petition, the deponent begs
to deny the averments made by the writ petitioner
and further begs to submit that there is no
arbitrary, illegal nor malafide, unreasonable,
unconstitutional and high handed action on part of
the respondent authorities.
The deponent further begs to submit that only
two bidders participated after the third bidding. In
the first tender bid, three bidders participated.
However, in the second time, four bidders
participated and in the third time, two bidders
participated. Further, the Government of Assam
vide its Office Memorandum dated January 2024
No. ECF No. 327632 made it mandatory for GeM
for all procuring entities for procurement of all
Goods and Services that are available in GeM.
Page 36 of 60
9. That with regard to the statements made in
paragraph 14 of the writ petition, the deponent
begs to deny the averments made by the writ
petitioner and further begs to submit that no illegal
and arbitrary manner has been acted upon, as per
Government Notification bearing No. ECG No.
327632 dated January 2024, GeM is mandatory.
As such, a fresh tender was invited through
Government e-Marketplace (GeM)
10. That with regard to the statements made in
paragraph 15 of the writ petition, the deponent
begs to deny the averments made by the writ
petitioner and further begs to submit that no illegal
and arbitrary steps have been initiated through
GeM inviting fresh tender.
11. That with regard to the statements made in
paragraph 16 of the writ petition, the deponent has
no comments so far as the same are matters of
record. However, anything beyond the records are
denied and disputed by the answering respondent.
Further, the deponent begs to submit that in the
first bid, only one party qualified which was not
acceptable. In the second instance, it was rejected
as no bidders qualified and in the third instance,
only two bidders qualified, but GeM is mandatory
and participation of more bidders is required.
45. Reading the aforesaid paragraphs, it is clear that
the stand of the respondent authorities is that since GeM is
mandatory in terms of the Office Memorandum dated
08.01.2024 and participation of more bidders is required, a
fresh tender for the subject work was issued. It further
appears that, except for the aforesaid bold defence,
nothing further is discernible from the said affidavit-in-
opposition filed by the respondent No.4. That apart, the
respondent No.4 is also silent as regards the manner in
which the impugned decision has been taken. AproposPage 37 of 60
thus, to refer to the said Office Memorandum dated
08.01.2024, which reads as under:-
“OFFICE MEMORANDUM
For Procurement of items from GeM and
Assam Tenders PortalECF/No.327632 Dated Dispur January 2024
In supersession of all previous notification related
to e-Procurement (IT.69/2011/363 dated 15th
October 2014, FEB(eGU).03/2015/3 dated 17th
March 2015, FEB(eGU).03/2015/61 dated 5th
August 2015, FEB (eGU) 03/2015/62 dated 23rd
November 2016, FEB (eGU) 03/2015/109 dated
13th July 2018, FEB,366/2016/pt/XXV/250 dated
16th December 2021, and eCFNo.311119 dated 9th
May 2023) and GeM notification
(No.FEB.224/2021/5 dated 28 January 2022),
ththe Finance Department hereby directs all the
procuring entity specified in Sub-Section (2) of
Section 3 of Assam Public Procurement Act,
2017 to adhere to the following:
A. For procurement of Goods & Services –
1. Government e-Marketplace (GeM) is
mandatory for all procuring entities for
procurement of all Goods & Services that are
available in GeM (as per Rule 24(I)(2)(iv) of
Assam Public Procurement Rules, 2020).
2. In the event that specific goods and
services are not available in GeM, the
procuring entity shall mandatorily procure
the same on Assam Tenders Portal
(https://assamtenders.gov.in) for value
above INR 20 lakh.
3. Procurement of goods and services valued
less than INR 20 lakh may also be procured
through Assam Tenders Portal
(https://assamtenders.gov.in) at thePage 38 of 60
discretion of the procuring entity (if and only
if the goods and services are not available in
GeM).
However, the following items shall remain
exempted from the purview of this amendment.
I. All the “Emergency Procurement” and
“Urgent Works” as defined in the Assam Public
Procurement Act, 2017 and Assam Public
Procurement Rules, 2020
II. The procurements in the ten statutory
Autonomous Council viz Moran Autonomous
Council, Kamatapur Autonomous Council,
Bodo Kachari Welfare Autonomous Council,
Matak Autonomous Council, Rabha Hasong
Autonomous Council, Mising Autonomous
Council, Tiwa Autonomous Council, Deori
Autonomous Council, Thengal kachari
Autonomous Council and Sonowal Kachari
Autonomous Council.
III. Procurement done through spot purchase
and Request for Quotation (RFQ)
IV. Any items to be notified by the
departments with due concurrence of the
Finance Department.
B. For procurement of works:
1. Works valued above INR 20 lakh shall be
procured through Assam Tenders Procurement
Portal (https://assamtenders.gov.in).
2. Works valued less than INR 20 lakh may
also be procured through Assam Tenders Portal
(https://assamtenders.gov.in) at the discretion
of the procuring entity.
3. Works valued above INR 50 Lakhs shall be
mandatorily procured through Assam Tenders
Portal (https://assamtenders.gov.in) for the
following cases mentioned below:
Page 39 of 60
I. All the ‘Emergency Procurement’ and
‘Urgent Works’ as defined in the Assam
Public Procurement Act, 2017 and Assam
Public Procurement Rules, 2020.
II. The procurements in the ten statutory
Autonomous Council viz Moran Autonomous
Council, Kamatapur Autonomous Council,
Bodo Kachari Welfare Autonomous Council,
Matak Autonomous Council, Rabha Hasong
Autonomous Council, Mising Autonomous
Council, Tiwa Autonomous Council, Deori
Autonomous Council, Thengal kachari
Autonomous Council and Sonowal Kachari
Autonomous CouncilC. Nodal Officers
All procuring entitles as defined under sub-section
(2) of Section 3 of Assam Public Procurement Act,
2017 will nominate one senior officer as Nodal
Officer for ‘GeM and e-Procurement’.
The detalls of such officers, along with their contact
detalls will be forwarded to the Chairperson, State
Procurement Facilitation Cell (SPFC).
In case there is an Assam Finance Service (AFS)
officer posted in that particular procuring entity,
then such officers will be treated as the Nodal
Officer for ‘GeM and e-Procurement’ by default. In
cases where there are no AFS officers posted, the
procuring entity may prefer to have the senior most
officer handling accounts as the Nodal Officer.
This shall come into force with immediate effect.
(Jayant Narlikar, IAS)
Commissioner & Secretary
to the Govt. of Assam
Finance Department”
Page 40 of 60
46. Reading the aforesaid office memorandum, it
appears that the Finance Department has directed all the
procuring entities to procure goods and services available
in GeM (as per Rule 24(I)(2)(iv) of the Procurement Rules)through GeM. In order to examine the decision making
process in question, this court, by order dated 27.05.2025,
directed Mr. Gogoi, learned Additional Advocate General for
the state respondent, to place the relevant records relating
to the decision of the respondent No.4 in connection with
the subject third re-tender. Accordingly, the records of the
tendering committee in relation to the first tender, second
re-tender, and third re-tender for the subject work were
placed before this court on 30.05.2025. Upon perusing the
records, especially the third re-tender, it appears that the
tender committee has opened both the technical and the
financial bids of the bidders, and after opening the financial
bids, though the petitioner’s bid was the lowest, however,
recommended the respondent No.4 to float a fresh tender
through the GeM method.
47. Apt to refer to the minutes of the tender bid
opening meeting held on 12.02.2024 in respect of the
subject third re-tender by the tendering committee, which
reads as hereunder:-
“MINUTES OF THE TENDER BID OPENING
MEETING HELD ON 12.02.2024 AT 1.00 PM IN
THE CONFERENCE HALL OF ASSAM MEDICAL
COLLEGE HOSPITA DIBRUGARH FOR PROVIDING
ANNUAL JOB CONTRACT OF DIETARY SERVICESPage 41 of 60
TO THE PATIENT ADMITTED IN ASSAM MEDICAL
COLLEGE HOSPITAL, DIBRUGRH PUBLISHED
VIDE RE-TENDER(e-Tender) NO. MCH/2024/948
DTD. 09.01.2024.
The meeting was presided by the Chairperson of the
committee Prof, Tapan Gogoi, Prof & Head, Deptt. Of
Ophthalmology, Assam Medical College & Hospital,
Dibrugarh, in presence of the following members.
1. Dr. Tapan Gogoi … Chairperson
Prof. & Head of Ophthalmology,
AMCH, Dibrugarh.
2. Dr. Dhruba Jyoti Bhuyan …. Member
Assoc. Prof. & HOD I/CDeptt. Of
Phychiatric
AMCH, Dibrugarh.
3. Dr. Ramesh Sonowal …. Member
Prof. of & G, AMCH,
Dibrugarh
4. Sri Rubul Boruah …. Member
Finance & Accounts Officer i/c
DC,s Office, Dibrugarh
5. Mr. Bhaben Kuman …. Member
Sub-Inspector, FCS & CA,
Dibrugarh
6. Dr. S.K Bhagawati …. Member
Deputy Superintendent, AMCH,
Dibrugarh
7. Dr. Hitendra Sonowal, …. Member
Deputy Superintendent, AMCH,
Dibrugarh
8. Dr. P.K. Dutta … Member
Assoc. Prof. of Medicine, AMCH,
DibrugarhPage 42 of 60
9. Dr. R. Das …. Member
Asstt. Prof. of Surgery, AMCH,
Dibrugarh
10. Mr. Raktim Bhattacharjee
11.Mr. Ai Cheng Gohain …. Member
F.A, AMCH, Dibrugarh
12. Mrs. Z Hussain …. Member
Dietitian, AMCH, DibrugarhThe following Bidders/Authorized representatives
were present in the tender bid opening meeting.
Sl Name of firm Name of Contact No.
No. bidder/authorized
representative
who present in
the tender bid
opening meeting
1 Axis Contractor Girish Baruah 9678723497
& Engineer
Pvt. Ltd.
2 M/S Ranjit Ranjit Baruah 9435034164
Baruah
Natun tekela
gaon P.O.
Mohhanaghat
Dist-Dibrugarh
The committee members opened the tender both
online and offline mode and found 2 (two) Nos. of
bidders were participating in the tender. The
committee scrutinized technical bid documents of the
above bidders. The details of which shown below.
Page 43 of 60
Sl Name of firms
No Axis M/S Ranjit
Contractor & Baruah
Engineer Natun tekela
Pvt. Gaon P.O
Ltd. Mohanaghat
Dist-
Dibrugarh
1 Court Fee Stamp submitted
Rs.8.25(Rupees Eight
Twenty Five Paise) only
(for local bidders) or IPO of
Rs.10/-(Rupees
Ten) only (in case of
bidders from outside of
the State of Assam)
2 Tender Fees: Rs.6,000/- submitted submitted
(Rupees six Thousand only)
(Through online
mode only) online
acknowledge receipt
3 EMD: Rs.10,00,000/- submitted submitted
(Rupees Ten Lakhs Only)
(Through online
mode only) online
acknowledge receipt
4 Copy of constitution or legal submitted submitted
status of the bidder
manufacturer/sole
proprietorship/firm/agency
etc.
5 "The turnover for providing submitted submitted
dietary service in
Page 44 of 60
Hospital/Similar Health
Institution of the firm should
not be less than
Rs.5.00 Crore in the last
three financial year
i.e.2020-2021, 2021-2022,
2022-2023. Copies of profit
& loss account and balance
sheets duty
authenticated by a Govt.
Registered Chartered
Accountant for the last three
financial years i.e.
2020-2021, 2021-2022,
2022-2023 should be
enclosed."
6 Experience of similar nature submitted submitted
of work of 03 year or more.
Similar nature of work
means supplying diet
services in a
hospital/similar health
institution/PSU on daily
basis with a minimum
occupancy of 500 persons.
Necessary supporting
documents like
work orders, Satisfactory
work completion certificate,
etc. for last
three years to this effect
must be submitted along
with the offer
7 Copy of the income Tax submitted submitted
Page 45 of 60
Return Filed
Acknowledgements for last
three years i.e.2020-2021,
2021-2022, 2022-2023.
8 Copy of PAN Card/Service submitted submitted
Tax Registration
9 Copy of the Sales tax/GST submitted submitted
Registration certificate
10 "Brochures, original submitted submitted
Technical catalogue with
detailed specification and
picture with date & time
alongwith Venue of the
Services offered, if relevant.
11 Banker of Company/Firm/ submitted submitted
agency with full address
(Attach certified copy of
statement of A/c for the last
one year) Telephone
Number of Banker
12 Copy of valid ESIC & EPF submitted submitted
registration certificate
13 Copy of the valid Labour submitted submitted
License Certificate
14 List of Labour with strength submitted submitted
on the date of
submission of the tender
(i.e Name of Labours)
15 Food License under the food submitted submitted
safety and Standard
Regulation 2011 (Attach
Attested copy)
16 Acceptance of terms & submitted submitted
conditions attached (Yes/
Page 46 of 60
No). Please sign each page
of terms and conditions as
token of the
acceptance and submit as
part of tender document.
17 A. Details of clients along A. Submitted A. Submitted
with address, telephone
and Fax numbers,
Amount of contract,
Duration of contract
(Attach a separate
sheet)
B. Have you previously B. Submitted B. Submitted
supplied these items
to any government/
private organization?
If yes, attach the
relevant proof.
C. Details of clients where C. Submitted C. Submitted
similar services are
presently provided by
the agency separated
for govt. and private
clients.
18 A. The concerned firm/ Submitted Submitted
company whose
product has been
declared as of spurious
or adulterated quality
and any criminal cases
is filled and is pending
in any court shall not
be eligible to
participate in the
Page 47 of 60
bidding process.
Convicted firms/
company shall also not
be eligible to
participate in the bid
B. Enclose an affidavit
duly certified by Submitted Submitted
(enclosed/Not
enclosed) the notary
at the location of the
Agencies/Head
quarters that the
bidder has never been
black listed or punished
by any court for any
criminal offence/breach
of contract.
19 Duly filled format of submitted submitted
Technical Bid as per
Annexure-I (Yes/No)
20 Bidders who come from submitted submitted
outside Assam must have
a branch office in Assam
at least period of one year.
After scrutiny all the bidders as stated above were
found to be technically qualified. As the tender was
called for 3rd time, the committee members have
decided to opened the financial bids on 20.02.2024 at
2.00 p.m.
i) Sd/- ii) Sd/- iii) Sd/- iv) Sd/-
v) Sd/- vi) Sd/- vii) Sd/- viii) Sd/-
Page 48 of 60
ix) Sd/- x) Sd/- xi) Sd/- xii) Sd/-”
48. Reading of the aforesaid minutes of the tendering
committee, it appears that the committee scrutinized the
technical bid documents of the two bidders, i.e., the writ
petitioner and the respondent No.7, and upon scrutinizing,
both were found to be technically qualified. It further
appears that the tendering committee, upon considering
the fact that the tender was called for the third time,
decided to open the financial bid of the two qualified
bidders on 20.02.2024 at 2 p.m.
49. Curiously, it appears that after the financial bid
was opened and the petitioner’s bid was found to be the
lowest, the technical committee, instead of finalizing the
same, recommended floating a fresh tender for the subject
work through the mandatory GeM method for better
participation.
50. Apt to refer to the tender financial bid opening
meeting held on 20.02.2024, which reads as hereunder:-
“MINUTES OF THE TENDER FINANCIAL BID
OPENING MEETING HELD ON 20.02.2024 AT
2.00 PM IN THE CONFERENCE HALL OF ASSAM
MEDICAL COLLEGE HOSPITA DIBRUGARH FOR
PROVIDING ANNUAL JOB CONTRACT OF DIETARY
SERVICES TO THE PATIENT ADMITTED IN
ASSAM MEDICAL COLLEGE HOSPITAL,
DIBRUGRH PUBLISHED VIDE RE-TENDER (e-
Tender) NO. MCH/2024/948 DTD. 09.01.2024.
Page 49 of 60
The meeting was presided by the Chairperson of the
committee Prof. Tapan Gogoi, Prof & Head, Deptt. Of
Ophthalmology, Assam Medical College & Hospital,
Dibrugarh, in presence of the following members.
1. Dr Tapan Gogoi … Chairperson
Prof. & Head of Ophthalmology,
AMCH, Dibrugarh.
2. Dr Dhruba Jyoti Bhuyan .. Member Secretary
Assoc. Prof. & Deptt. of
Phychiatric
AMCH, Dibrugarh.
3. Dr. Ramesh Sonowal …. Member
Prof. of & G, AMCH,
Dibrugarh
4. Sri Rubul Boruah …. Member
Finance & Accounts Officer i/c
DC,s Office, Dibrugarh
5. Mr. Bhaben Kumar …. Member
Sub-Inspector, FCS & CA,
Dibrugarh
6. Dr. S.K Bhagawati …. Member
Deputy Superintendent, AMCH,
Dibrugarh
7. Dr. Hitendra Sonowal, …. Member
Deputy Superintendent, AMCH,
Dibrugarh
8. Dr. P.K. Dutta … Member
Assoc. Prof. of Medicine, AMCH,
Dibrugarh
9. Dr. R. Das …. Member
Asstt. Prof. of Surgery, AMCH,
Dibrugarh
10.Mr. Ai Cheng Gohain …. Member
F.A, AMCH, DibrugarhPage 50 of 60
11. Mrs. Z Hussain …. Member
Dietitian, AMCH, Dibrugarh
Since, there were only two bidders participating in the
process, to have a better participation and
involvement of more numbers of bidders to ensure the
quality the committee members would like to
recommend the Principal-cum-Chief Superintendent
and Superintendent, AMCH, Dibrugarh to float a fresh
tender through GeM Protal.
i) Sd/- ii) Sd/- iii) Sd/- iv) Sd/-
v) Sd/- vi) Sd/- vii) Sd/- viii) Sd/-
ix) Sd/- x) Sd/- xi) Sd/- "
51. Reading the aforesaid minutes of the financial bid
opening, it is apparent that the financial bids of the two
bidders were opened. What is surprising to note is that the
tender committee at the time of opening the technical bid
and upon scrutinizing the same was, though fully aware
that there were two qualified technical bids, since the
subject work was re-tendered for the third time, they
decided to open the financial bid, and after opening the
financial bid, instead of finalizing the same, they took a
complete somersault and recommended the respondent
No.4 to float a fresh tender through the GeM method for
better participation.
52. It appears from the aforesaid records of the
tendering committee in respect of the third re-tender thatPage 51 of 60
by letter dated 02.03.2024, the tendering committee
submitted the minutes of the tender committee (third re-
tender) for the subject work to the respondent No.4. In the
body of the aforesaid letter, it appears that at the top of
the right hand corner, there is a note by hand, “as per
committee suggestion, invite tender through GeM portal”,
purportedly signed by the respondent No.4 by inserting the
date 02.03.2024. It is pertinent that neither the name nor
the designation of the person signing the said note is
recorded. That apart, no official seal is also appended
against the signature in question. Further, the date
inserted by hand appears to have also been overwritten. It
is worthwhile to mention that except for the records of the
tendering committee pertaining to the subject tender,
second re-tender, and third re-tender, no other records
regarding the decision of the respondent No.4 relating to
the third re-tender have been placed despite the
opportunity being given.
53. During the course of the hearing, Mr. B. Gogoi,
learned Additional Advocate General, placed a letter dated
25.04.2025, issued by respondent No.4 to show that
respondent No.4 had taken the decision of issuing a fresh
tender for the subject work through the GeM portal, which
was later placed by way of an additional affidavit filed on
03.06.2025, with a copy served to the other side. The said
letter reads as under:-
Page 52 of 60
“OFFICE OF THE SUPERINTENDENT::
ASSAM MEDICAL COLLEGE HOSPITAL
DIBRUGARH-786 002
Dated Dibrugarh the 25/4/2025
No MCH/2025/ 11347
To
Mr. Buddhadip Gogol
Standing Counsel, Health & Family Welfare
Departmant
Subject: W.P (C) No. 1597/2024(Shri Ranjit Baruah
vs State of Assam & 5 ors)Ref. 1. Our letter bearing No.MCH/2024/8316 dtd.
04/04/2024
2. Your letter No.HD/DS/25 did. 21/04/2024
Sir
We have informed you that the office of the
undersigned has received your above referred letter, in
compliance of the same we are handing over the process
of the original tender documents available to us through
the personnel messenger Sri Pitamber Reddy, Grade-IV
(Peon), AMCH, Dibrugarh.
We would like further state that as per the minutes
of the meeting held on 20/02/2024 at 2.00 PM in the
Conference Hall of AMCH, Dibrugarh for providing annual
job contract of dietary service to patients admitted in
AMCH, Dibrugarh, it was clearly decided by the tender
committee as per Govt. of Assam, Finance Department
office memorandum No. ECF/No.327632 dtd.
08/01/2024 whereon it has been made mandatory by
the Govt. of Assam under GeM Portal for all procuring
entities for procurement of all goods and services that are
available in GeM. According to the minutes of the tender
financial bid although was opened through online mode
Page 53 of 60
not signed and endorsed by any members of the tender
committee. But in view of the aforesaid Govt. Notification
the committee members recommended the Principal-cum-
Chief Superintendent and Superintendent, Assam
Medical College & Hospital, Dibrugarh to float a fresh
tender through GeM portal. In the Assam Tender portal it
is mentioned that financial covered to be opened
(screenshot copy of the Assam Tender is enclosed
herewith). As the matter was referred for fresh tender
under GeM portal so the financial bid of the two selected
bidders were not uploaded/submitted in Assam Tender
Portal.
Be it mentioned that in the tender notice
inviting e-Tender vide our office No.MCH/2024/948
dtd. 09/01/2024 it has been clearly mentioned that
the Principal-cum-Chief
Superintendent/Superintendent, AMCH, Dibrugarh
reserves the right to reject all or any tender without
assigning any reason.
This is for your kind information, record and doing
needful
Yours faithfully
Principal-cum-Chief Superintendent
Superintendent Assam Medical College
Assam Medical College & Hospital, Dibrugarh”
Hospital, Dibrugarh
54. Reading the aforesaid letter, it is clear that
according to the minutes of the tender financial bid,
although the financial bid was opened through online
mode, it was not signed and endorsed by any members of
the tender committee. It is further clear that in view of the
Office Memorandum dated 08.01.2024, since the
committee members recommended the respondent No.4 to
float a fresh tender in relation to the subject work through
the GeM portal, the matter was referred for a fresh tender
Page 54 of 60
under the GeM portal, and the financial bids of the two
selected bidders were uploaded/submitted in the Assam
Tender Portal. In fact, there is no document whatsoever
available on record relating to the decision of the
respondent No.4 except the note purportedly to have been
signed by the respondent No.4 in the body of the letter
dated 02.03.2024. That apart, the aforesaid letter dated
25.04.2025 written by the respondent No.4 to the
Additional Advocate General, State, is at best an instruction
to him and cannot be taken as the decision of the
respondent No.4 in relation to the adoption of the GeM
method in the subject tender and cancellation of the third
re-tender.
55. Thus, the admitted position that unfolds from the
above is that the third re-tender was issued on 09.01.2024,
and the office memorandum relied on the tendering
committee, which mandates the GeM method mandatory
was issued on 08.01.2024, i.e., one day before the date of
issuance of the third re-tender. As noted above, it is
mandatory under the provision of the Procurement Act for
a notification to be published in the official gazette before
coming into effect. It is pertinent that during the course of
the hearing on 30.05.2025, upon query being put to the
learned Additional Advocate General as regards the
publication of the said Office Memorandum dated
08.01.2024 in the official gazette, accommodation was
sought for obtaining instruction thereof. Thereafter, by
filing an additional affidavit on 03.06.2025, he clarified thatPage 55 of 60
the said office memorandum is not published in the official
gazette. Paragraph 4 of the said additional affidavit reads
as under:-
“4. That as regards the Office Memorandum dated
08.01.2024 issued by the Commissioner and
Secretary to the Government of Assam, Finance
Department, the deponent begs to submit that on
enquiry, in the Finance Department, it has been
informed that in pursuance of Rule 24(I)(2)(iv) of the
Assam Public Procurement Rules, 2020 relating to
Government e-Marketplace, the Finance
Establishment (B) Department issued a Gazette
Notification vide No. FEB.224/2021/5 dated
28.01.2022 whereby it was directed that Government
e-Marketplace (GeM) is mandatory for all procurement
entities for procurement of all goods and services that
are available in GeM except in cases specified therein.
Thus, procurement of goods and services available in
GeM was already made mandatory for the
procurement entities by the above mentioned Gazette
Notification dated 28.01.2022. Further, it has been
informed that the Office Memorandum dated
08.01.2024 is an Administrative Order and as such,
the same is not required to be Gazette notified.”
56. Reading the aforesaid paragraph, it is clear that
the stand of the respondent authority is that the Finance
Establishment (B) Department, as per Rule 24(I)(2)(iv) of
the rules, issued a gazette notification dated 28.01.2022,
whereby it was directed that the Government e-Market
(GeM) is mandatory for all procurement entities for
procurement of all goods and services that are available in
Page 56 of 60
GeM. It is thus contended on behalf of the state authorities
that the mandatory requirement for procurement of
subject work by the GeM method was already available
vide the aforesaid gazette notification dated 28.01.2021.
That apart, it is contended that the Office Memorandum
dated 08.01.2024, being an administrative order, is not
required to be gazette notified.
57. The aforesaid stand of the state respondent
appears to be totally fallacious inasmuch as the Office
Memorandum dated 08.01.2024 specifically mentions that
the GeM notification dated 28.01.2022 stands superseded
in view of the issuance of the Office Memorandum dated
08.01.2024. That apart, the tendering committee has
referred to the Office Memorandum dated 08.01.2024 and
not the GeM notification dated 28.01.2022, which is now
sought to be relied on by the respondent authority. Such
resort to adopt contrary stand before this court clearly
demonstrates the desperate attempt of the respondent
authority to justify their actions, which, on the face of it,
appear, to be arbitrary and unreasonable. Apropos that,
under the provisions of the Procurement Act and Rules
made thereunder as extracted hereinabove, it is clear that
detailed guideline for online procurement through GeM has
to be notified by the state government in the Finance
Department. It is also mandatory for such notification to be
published in the official gazette. Undoubtedly, notification
in common parlance is an instance of formal notifying or
informing in writing. Similarly, an office memorandum is
Page 57 of 60
primarily internal communication document used within an
organization to transmit official information, instruction or
announcement. Therefore, I have no doubt that the Office
Memorandum dated 08.01.2024 relied by the tendering
committee to adopt GeM procuring method for the subject
procurement by cancelling the third re-tender is nothing
but a notification which unless is published in the official
gazette, the same shall not come into effect.
58. As a necessary corollary from the above, the
admitted position is that the respondent No.4, who is the
competent authority under the provisions of the
Procurement Act and Rules made thereof to choose any
other method other than the most preferred methods of
open competitive bid, has not taken the decision in the
subject third re-tender as required under the law. That
apart, the tendering committee though was fully aware as
regards the number of participation at the time of finalizing
the technical bid, decided to open the financial bid and
after opening the financial bid, suddenly was of the view
that for better participation fresh tender be issued. It is not
understood as why the tendering committee could not
have taken this decision for fresh tender before opening
the financial bid, since they were fully aware of the number
of participation. It is further evident that though the office
memorandum mandating GeM procurement method has
not come into effect, the tendering committee insisted
following the same, which was issued just one day prior to
the issuance of the third re-tender. Such action of the
Page 58 of 60
tendering committee as well as respondent No.4 does not
inspire the confidence of this court. Moreover, the
respondent No.4 has not communicated the grounds for
not finalizing the subject third re-tender process. The
decision making process is bound to be fully transparent
and/or fair. Any decision making process which is not
transparent and/or fair, suffers from the vice of
arbitrariness. That apart, it is absolutely clear that the
provisions of the Procurement Act and Rules made thereof
has been totally violated and abused by the respondent
No.4 while taking the impugned decision of issuing the
fresh tender in the subject process. As such, I have no
hesitation to hold that the subject decision making process
is wholly arbitrary, discriminatory and unreasonable.
59. Viewed thus, from any angle, the impugned
decision of the respondent No.4 in issuing the subject fresh
tender cannot stand in the eye of law. That being so, the
same is to be set right.
60. Hence, the writ petition succeeds.
61. Accordingly, the decision making process of the
respondents in not finalizing the subject third e-Tender
dated 09.01.2024 as well as the decision inviting fresh
tender for the subject work through the GeM are hereby
set aside and quashed.
62. Resultantly, the respondent authorities, more
particularly the respondent Nos. 2, 3, 4 and 5 are directed
Page 59 of 60
to finalize the subject third e-Tender process pertaining to
e-Tender bearing No. MCH/2024/948 dated 09.01.2024 for
the subject e-Procurement for providing annual job
contract of dietary services to the patient admitted in
Assam Medical College Hospital, Dibrugarh, in accordance
with law.
63. With the above observations and directions, the
writ petition stands allowed and disposed of.
Send back the case records.
JUDGE
Comparing Assistant
Page 60 of 60
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