Gauhati High Court
WP(C)/270/2025 on 6 March, 2025
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GAHC010010882025
2025:GAU-AS:2380
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C) 270/2025
Md Rafiqul Islam
S/O Nazim Uddin,
Proprietor Of Brahmaputra Goat Supply,
R/O Goshala Bazar, Ward No. 5,
Maligaon, Guwahati, Dist- Kamrup
(M), Assam-781011
...............................Petitioner
-VERSUS-
1. The State of Assam.
to be Represented by the Secretary To The Government Of
Assam, Home and Political Department, Dispur, Guwahati-06
2. The Inspector General of Prisons, Assam,
Prison Headquarters, Khanapara
Guwahati-22
3.The Tharad Trading Co.
Represented by its Proprietor, shri Amit Kumar
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Tharad, R/O Ward No. 3, H.P. Agarwala Road
Barpeta Road,Dist- Barpeta, Assam
Pin-781315
..................Respondents.
Advocates for the Petitioners: Mr. A.R. Bhuyan, Advocate.
Advocates for the respondents: Mr. D. Nath, (G.A. Assam)
BEFORE
HON’BLE MR. JUSTICE KARDAK ETE
Date of hearing : 06.03.2025
Date of Judgment: 06.03.2025
JUDGMENT & ORDER (Oral)
Heard Mr. A.R. Bhuyan, learned counsel for the petitioner. Also heard Mr.
D. Nath, learned Senior Govt. Advocate for all the respondents.
2. By filing this writ petition, the writ petitioner has put to challenge the
tender summary report dated 07.01.2025, by which, the technical bid of the
petitioner has been rejected on having found to be non-responsive, pertaining
to the Notice Inviting e-Tender (herein after referred to as NIeT in short) dated
25.11.2024 issued by the Inspector General of Prisons, Assam inviting bids for
supply of Dietary items i.e. Group A,B,C and D, required for the jails of the State
of Assam covered under Zone-4.
3. Having considered the issue raised in the present proceedings, although
one Tharad Trading Company represented by its Proprietor- Shri Amit Kumar
Tharad, Barpeta Road, District Barpeta, Assam, is arrayed as respondent No.3
and no notice has been issued to him, the present petition is being taken up for
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final disposal as the matter relates to supply of dietary items for the jails of the
State of Assam, as no prejudice would cause to the respondent No. 3.
4. Briefly put, the case of the petitioner is that he is the proprietor of M/s
Brahmaputra Goat Supply, a firm registered in the year 2021 and has been
running the business of selling the dietary articles including fish, meat and eggs.
The Inspector General of Prisons, Assam, issued NIeT vide dated 25.11.2024 in
two bids system inviting bids from the interested Suppliers/ Dealers/Firms for
supply of Dietary items i.e. Group-A, B, C, D required for the Jails of Assam
covered under Zone-4 for the financial year 2024-25. The petitioner being the
eligible and qualified Supplier, in response to the aforesaid NIeT submitted his
technical bid and price bid along with all the requisite documents through online
mode in the name of his firm, i.e. M/s Brahmaputra Goat Supply, the
acknowledgment notice of which was issued to the petitioner showing its
successful submission of bids. Thereafter, on 09.02.2024, the petitioner
submitted hard copies along with all original documents before the Office of the
Inspector General of Prisons, Assam.
5. The petitioner contends that while awaiting for selection in the said NIeT
having been successfully submitted his bid along with required documents, he
checked up the status of the bidding, on which it is found that the respondent
authorities have uploaded the tender summary report on 07.01.2025 showing
participation of four bidders including the petitioner. By the impugned summary
report dated 07.01.2025, surprisingly, the bid of the petitioner is shown to be
rejected on the ground of technical bid not qualified whereas, the bid of the
respondent no.3 is found technically qualified. Being aggrieved, the petitioner
has filed representation dated 16.01.2025 before the Inspector General of
Prisons, Assam, and made a request to reconsider the technical bid of the
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petitioner. However, the same has not been considered, despite several
approaches.
6. Mr. A.R. Bhuyan, learned counsel for the petitioner submits that the
petitioner has submitted all the requisite documents as per the ITB, particularly
para 2.11.1, and after successful submission, the acknowledgment receipt was
also issued in favour of the petitioner. Therefore, it is clear that the petitioner
successfully submitted his bid and the same was received by the authorities.
However, without assigning any valid reasons, the respondent authorities have
rejected the technical bid of the petitioner and as such rejection is arbitrary and
unreasonable and violation of Article 14 of the Constitution of India.
7. Mr. A.R. Bhuyan, learned counsel, submits that pursuant to the aforesaid
NIeT, especially for Group-D articles, the four numbers of bidders including the
petitioner’s firm have submitted their bids. The name of the firm of the
petitioner was placed at serial No. 1, whereas, the respondent No. 3 was placed
at serial No.4. He submits that in case of any deficiency, which is ancillary in
nature, the respondent authority ought to have communicated to the petitioner
to rectify such ancillary defects by providing an opportunity of hearing.
Therefore, Mr. Bhuyan, learned counsel, submits that the respondent authorities
may be directed to re-consider the technical bid of the petitioner by setting
aside the impugned summary report dated 07.01.2025, as no reason has been
mentioned for rejection of technical bid of the petitioner.
8. Mr. Bhuyan, learned counsel, in support of his submissions, has placed
reliance on the judgment of this Court in the case of Brahmaputra Consortium
Ltd. and Another Vs. State of Assam and Ors. reported in 2007(4) GLT 236.
9. On the other hand, Mr. D. Nath, learned Senior Government Advocate,
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submits that the tender summary report dated 07.01.2025 contains the bid of
the bidders who have taken part in the tender process by submitting their bid
documents. After evaluation of the technical bid of all the bidders, the outcome
of the same has been published vide the tender summary report dated
07.01.2025. Although, the petitioner is placed at serial no. 1 of the system
generated tender summary report, the serial number of the bidders in the
tender summary report is not on the basis of their financial bid in as much as
the tender summary report indicates the result of the technical bid evaluation
and the financial bid has not been opened yet. Therefore, the question of
highest or lowest bidder does not arise at this stage as the financial bid is not
yet opened.
10. He submits that although the petitioner claimed to have submitted all the
requisite documents through online as well as offline mode, but on inspection of
the documents both online and hard copies, the petitioner did not submit
mandatory and essential technical documents that were required to qualify in
the technical stage as per terms and conditions of the Bid document of the
NIeT. Therefore, the technical bid of the petitioner has been rejected having
been found to be non-responsive, as the petitioner has failed to submits the
financial soundness certificate as per Clause-44, IT returns of the last three
assessment years as per clause-9 and GST certificate with up to date GST return
as per Clause-16 as per terms and conditions. Therefore, he submits that the
tender committee did not receive the aforesaid documents as claimed by the
petitioner neither in soft copy nor hard copy. The allegation that his documents
may have been destroyed is not based on facts and is only an afterthought of
the petitioner to cover up his own mistake and is a mere conjecture to malign
the integrity of the bidding process and undue interference in the whole bidding
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process.
11. Mr. Nath, learned Senior Govt. Advocate, while referring to the affidavit-in-
reply filed by the petitioner, submits that same clearly indicates that the
petitioner has not submitted the above said documents, as the petitioner has
stated that the requisite documents through online as well as offline mode have
been submitted but due to technical failure, some documents which are not
mandatory are left out while uploading in the database and if error has taken
place, there shall be a provision for correcting the defect within a time frame
and the same shall be done before opening the financial bid. Therefore, there is
no merit in the writ petition and as such the same is liable to be dismissed.
12. Mr. D. Nath, learned Senior Govt. Advocate has placed reliance on the
judgment of this Court in the case of Girin Deka and Ors. Vs. State of Assam and
Ors. reported in 2014 (2) GLT 795, to project that since the petitioner did not
comply with the mandatory requirements of the tender conditions, the Tender
Evaluation Committee was within its jurisdiction and competence to reject the
tender submitted by the petitioner.
13. Due consideration has been extended to the submissions advanced by the
learned counsel for the parties and have perused the materials available on
record.
14. The petitioner submitted his bid in the name of his firm, M/s Brahmaputra
Goat Supply, through online and offline mode, which was duly acknowledged.
There were altogether four bidders including the petitioner, who have submitted
their bids pursuant to the NIeT dated 25.11.2024 for supply of dietary items for
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Group-A, B, C, D, particularly Group-D.
15. The bid of the petitioner has been found to be non-responsive on the
ground of non-submission of requisite documents vide impugned tender
summary report dated 07.01.2025. Although, the petitioner specifically has not
pleaded in the present writ petition, whether, the documents required to be
submitted as per the NIeT, on which the technical bid of the petitioner has been
rejected, is ancillary or essential requirement, Mr. A.R. Bhuyan, learned counsel
for the petitioner at the time of hearing, while not admitting that those
documents were not submitted, has submitted that such documents are only
ancillary or subsidiary and not an essential requirement of the NIeT, to which
this Court would consider the submission in the facts and circumstances of the
present case.
16. To appreciate, it is apposite to refer and consider the terms of the NIeT.
The authorities vide additional terms and conditions in the NIeT dated
25.11.2024 stipulates that all the terms and conditions for supply, testing and
acceptance of the payment terms, penalty clause etc., shall be as those
mentioned herein and no change whatsoever in terms and conditions shall be
acceptable.
17. Clause-4 of the terms and conditions provides that the tenderer should
have submitted their minimum Average Annual Turnover for the last three years
by showing the minimum Average Turnover of the bidders for last three years.
Clause-9 provides that the tenderer should have submitted copy of the Income
Tax Return Certificate for last three Assessment years. Clause-16 provides that
the tenderer should submit up to date GST return along with GST certificates
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failing which the tender will be rejected. Clause-44 provides that the tenderer
should have submitted financial soundness certificate from any Bank issued
after floating of the NIeT along with Bid failing which the bid will be rejected.
18. Bare perusal of the additional terms and conditions of the NIeT, shows that
the above requirements appear to be mandatory and essential conditions of
NIeT. The records reveals that the petitioner has failed to submit the financial
soundness certificate as per Clause-44, Income Tax Return of the last three
assessment years as per Clause-9 and GST certificate with up to date GST
return as per Clause-16 of the additional terms and conditions of the tender.
Therefore, the vain attempt of Mr. A.R. Bhuyan, learned counsel for the
petitioner to project that the even if the above documents are not submitted,
same are ancillary is not acceptable, as the same appears to be an essential
qualification criterion and condition of the NIeT.
19. In Poddar Steel Corporation Vs. Ganesh Engineering Works and Ors, reported
in (1991) 3 SCC 273, the Hon’ble supreme Court has held that in the tender
process, there could be two categories of qualification criteria, i.e., essential
qualification criterion and the other, ancillary or subsidiary requirement. In so far
as essential qualification criterion is concerned, it needs to be rigidly and strictly
enforced and non-fulfillment of the essential qualification criteria should lead to
disqualification of a tenderer. However, insistence on fulfillment with regard to
ancillary or subsidiary requirement may not be justified.
20. In Jain Video on Wheels Ltd. (Dr.) vs. Union of India, reported in 2013 (5)
GLT, this Court, dealing with the power of judicial review under Article 226 of
the Constitution of India, in the matter of tender evaluation by the expert
technical body and after consideration of the decisions of the Hon’ble supreme
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court, held that any relaxation of the eligibility conditions of the tender will
amount to denial of opportunity to those, who considered themselves ineligible
and therefore did not participate in the tender process. It has further been held
that the terms of tender, prescribing the eligibility criteria, are open to
interference only if they are arbitrary, discriminatory or bias, but not open to
interference merely because the Court feels that some other terms would have
been more preferable.
21. Regard being had to the submissions that the respondent authorities ought
to have provided an opportunity to the petitioner to rectify any deficiency in the
bid to the petitioner is also not supported by any terms and conditions of the
NIeT, as there is no provisions in the NIeT which empowers the respondent
authorities, to resort to such course of action and if such contention is accepted,
in my view the whole purpose of tender would be defeated as it is settled
principle of law that in tender matter principle of equity and natural justice stay
at a distance. If the decision relating to award of contract is bonafide and is in
public interest, courts will not, in exercise of power of judicial review, interfere
even if a procedural aberration or error in the assessment or prejudice to a
tenderer, is made out.
22. The case of Brahmaputra Consortium Ltd. (Supra), relied by learned
counsel, Mr. Bhuyan, pertains to deficiencies with regard to key personnel and
site engineer, balance sheets and bank guarantee in the context of availability of
other graduate Engineers with requisite experience, who could have been
deployed as Site Engineer to meet the requirement, balance sheets for other 3
years not audited despite submission of 2 years audited balance sheets and an
additional requirement to indicate the financial competency of the bidding
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company to execute the contract, but financial competency of the bidder is to
be assessed not only on the basis of the Bank certificate, but also on the basis
of evaluation of the balance sheets of the company for the previous five years.
The court, on the facts of that case, held that such deficiencies curable. In the
present case, I find that the petitioner has failed to submit the essential
documents as per the terms of the NIeT, therefore, the case is clearly
distinguishable and as such the decision in the above case does not come to the
aid of the petitioner.
23. On consideration of the materials as noted above, although, the petitioner
has submitted that he has submitted all the required documents, same is not
supported by record. Thus, I am of the considered view that the petitioner has
failed to submit the required documents, which are essential qualification
criteria of the NIeT. As noticed above, since the petitioner did not comply with
the mandatory requirements of the tender conditions, the Tender Evaluation
Committee was within its jurisdiction and competence to reject the tender
submitted by the petitioner. Except for bald submission of arbitrariness, the
petitioner miserably failed to show that the impugned rejection is arbitrary,
discriminatory or malafide and/or infringes Article 14 of the constitution.
Therefore, there is no substance in the contention of the learned counsel for the
petitioner.
24. For the foregoing discussions and reasons, I am of the considered opinion
that the petitioner has failed to make out any case for interference with the
impugned tender summary report dated 07.01.2025, as the petitioner has failed
to submit the documents which are essential qualification and conditions of the
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NIeT as per the Clauses-4, 9, 16 and 44. Thus, I find no merit in the present
writ petition.
25. In the result, the writ petition stands dismissed being devoid of merit. No
order as to costs.
JUDGE
Comparing Assistant