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Judgment
Tapabrata Chakraborty, J.
The present writ petition has been preferred challenging atender process initiated by a notice inviting tender (in short, NIT) dated 14th February,
2018 for online recruitment purposes of candidates of Hon’ble High Court at Calcutta.
Mr. Bhattacharya, learned senior advocate appearing forthe petitioners submits that responding to the said NIT the petitioner no.1 submitted the
tender in two folders, one being the technical proposal and other being the financial proposal. The basic details inter alia provided that general technical
evaluation would be allowed, however, there would be no item-wise technical evaluation. The scope of work was also detailed in the said NIT under
serial nos. 1.0 to 1.21 including inter alia processing of applications, designing of format, deployment of manpower, manual frisking, monitoring of the
entire examination, preparation of the list of eligible candidates.
Drawing the attention of this Court to clauses 7, 8 and 9 of paragraph 3 pertaining to opening of technical proposal, he submits that though the said
clauses inter alia provided that pursuant to scrutiny and decision of the Tender Evaluation Committee (in short, TEC), summary list of technically
qualified bidders will be uploaded in the web portal on 2nd April, 2018, the TEC did so after a substantial delay. The said result was uploaded by a
digitally signed document generated on 3rd May, 2018 but surprisingly the comparative chart with and without work load factor was created and
uploaded on 5th May, 2018. From such sequence it is explicit that the result was declared prior to evaluation of marks of the participants and was
tailormade. In support of such contention reliance has been placed upon the documents annexed at pages 88 and 89 of writ petition.
Mr. Bhattacharya further submits that in the NITweightage of 50% was to be awarded for technical evaluation as well as for financial evaluation
but the TEC had illegally and wrongfully introduced an additional note introducing new conditions stating that a weightage of 70% shall be awarded for
the technical evaluation and a weightage of 30% shall be awarded for the technical evaluation and that the qualifying marks shall be fixed at 30 in the
tender evaluation. Alongwith the said note, a purported Scoring Model was also formalized but none of the said documents contained any signature of
the competent authority. Such alteration of the terms was absolutely illegal and arbitrary and had the original terms been adhered to, the petitioner no.1
would have secured 80.3 marks and would have earned rank L1 and the respondent no. 8 would have secured 64.18 marks and would have earned
rank L5. In support of such contention reliance has been placed upon the document annexed at page 92 of writ petition. Applying the weightage
percentage stated in the additional note the petitioner no.1 was granted 72.06 marks and was shifted to L2 position and the respondent no.8 was
granted 72.8 marks and was elevated to L1 position, as would be explicit from the document annexed at page 93 of the writ petition.
He further submits that the financial bid of the petitionerno.1 was also the lowest among the participants being Rs.2,08,00,000/- whereas the
financial bid of the respondent no.8 was the highest among the participants being Rs.5,02,86,500/-. The difference in the financial bid among the
petitioner no.1 and the respondent no.8 was more than an amount of rupees three crore.
According to Mr. Bhattacharya, such acceptance of afinancial bid of Rs.5,02,86,500/- is not permissible in terms of the West Bengal Financial
Rules. The said rules are applicable to the present tender process and Rule 177 of the same clearly provides that tenders for works, other than the
emergent works costing up to Rs.1 lakh will be called from approved contractors and that for works above Rs.1 lakh competitive tenders shall be
called for from the public and the lowest tender for such works is required to be accepted as a rule. In terms of the said rules orders sanctioning
reappropriations are required to be issued from the officer concerned to the Account General and in the list of such officers empowered, the
Hon’ble Chief Justice of the High Court is included.
Drawing the attention of this Court to the documentsannexed at pages 89 to 108 of the supplementary affidavit, he submits that a perusal of the
same would reveal that the petitioner no.1 was having more than 10 software engineers and an objective consideration of such data would have
entitled it to 5 marks under clause 1.4.1 in the Scoring Model but it has been given only 4 marks. The petitioner no.1 was also not been given
appropriate marks under clause 1.3.2 of the Scoring Model. A difference of one mark would have changed the entire scenario since the difference of
marks between the petitioner no.1 and respondent no.8 is only 0.74. The authorities have not taken into consideration the documents produced by the
petitioner no.1 at the time of one time presentation and as a consequence of such discrepant marking, the petitioner no.1 had been ousted from the
tender process in a most arbitrary and unreasonable manner.
He further submits that there is an apparent infirmity inthe records. Most of the documents do not content the digital signatures of the competent
authority and as such no relevance can be placed upon the same, particularly upon the document annexed at page 86 of the writ petition. In support of
such contention reliance has been placed Section 3A of the Information Technology Act, 2000.
Per contra Mr. Saptangshu Basu, learned senior advocate appearing for the respondent nos.1 to 7 submits that in the NIT itself there was a
categoric provision that the authorities can issue “corrigendum against scoring†under the head “latest corrigendum list†and the authorities
did upload such corrigendum details in the web portal consisting of an additional note and a Scoring Model on 14th March, 2018 prior to the prebid
meetings as stipulated in the tender documents. Thereafter the authorities have proceeded strictly on the basis of the said corrigendum. The
participants were called for a power point presentation and they were individually assessed and granted appropriate marks. The bidders quoted online
through computer in the space marked for quoting rates in the Bill of Quantities in terms of the procedure prescribed in the NIT pertaining to
“financial proposal†against four work proposals and a comparative statement of the rates quoted was prepared, as would be explicit from the
document annexed at page 91 of the writ petition. Thereafter the final score was determined upon application of the weightage percentage as detailed
in the additional note. The marks obtained by the petitioner no.1 during technical evaluation was 60.86 and upon grant of 70% weightage it came to be
42.6. The marks obtained by the petitioner no.1 during financial evaluation was 100, as the price quoted by the petitioner no.1 was the lowest and upon
grant of 30% weightage it came to be 30 and accordingly its total score was 72.06 marks. Applying the same ratio, the total score of the respondent
no.8 was 72.8 marks and it secured the rank L1.
According to Mr. Basu all the participants have beentreated equally on level playing field concept. The corrigendum against scoring was issued by
the authorities and uploaded on the web portal. The respondents had such authority to issue corrigendum, as would be explicit from the document
annexed at page 42 of the writ petition. All the participants including the petitioner no.1 was aware about such corrigendum details and they duly
appeared in the power point presentation. It is not a case that the tender terms were altered subsequently. There was no arbitrariness and
unreasonableness on the part of the authorities. The tender process was conducted in strict consonance with the terms and conditions of the NIT.
Drawing the attention of this Court to Rule 47C of theWest Bengal Finance Rules, he submits that the bid system and the value specified is
attributable to purchasing plant, machinery, equipment etc. of complex and technical nature. The present tender process is not for purchase of such
machinery and as such the said Rules have no manner of application in the instant case.
He categorically denies that the additional note was notuploaded in the web portal and that the same did not contain the signature of the competent
authority. All the tender documents were uploaded in the web portal and accordingly, the bidders were able to submit their respective technical
proposal and financial proposal online along with scanned copies of the documents as detailed under the headings “technical proposal†and
“financial proposal†in the NIT. Dealing with the argument advanced by Mr. Bhattacharya placing reliance upon the documents at pages 88 and
89 of the writ petition, Mr. Basu submits that prior to issuance of the corrigendum, the weightage required to be granted for technical evaluation was
50% and the weightage required to be granted for financial evaluation was also 50% and such rates were reflected in the Quality and Cost Based
System (in short QCBS). After issuance of the corrigendum, it is an impossibility to change the QCBS template or the weightage parameters. As
such, the document at page 88 was automatically uploaded upon assessing the technical score of the respective bidders on the basis of initial
parameters of weightage. The allegation that the documents uploaded did not contain the signature of the competent authority is absolutely unfounded
inasmuch as the QCBS and the BOQ pertaining to the tender were authenticated and eProcurement system generated. In support of such contention,
reliance has been placed upon a letter issued by the Technical Director and State Co-ordinator EProcurement and E-Auction, National Informatics
Centre. Let the said letter be kept on record.
In reply Mr. Bhattacharya submits that the ScoringModel could not have been introduced at a subsequent and later stage and such introduction has
maligned the entire tender process. The authorities themselves having assessed the technical bids on the basis of the weightage percentage indicated
in the NIT, altered the procedure subsequently and introduced new parameters.
Indisputably, there was a specific clause in the tenderdocuments pertaining to issuance of a corrigendum against scoring and as such there can be
no dispute that the authorities had the jurisdiction to issue the corrigendum which includes the additional note and the Scoring Model.
In the writ petition there is no specific averment to theeffect that the petitioners had no knowledge about uploading of such corrigendum in the web
portal. The petitioners have, in fact, appeared before the authorities for power point presentation scheduled on 17th April, 2018 to be evaluated as per
the Scoring Model uploaded with the corrigendum. The document at page 94 of the writ petition would clearly reveal that the participants were
assessed as per the corrigendum issued.
According to the petitioners the said uploadeddocuments did not contain the digital signature of the competent authority and that the considerations
for the change in the evaluation criteria/Scoring Model were not informed to the respondents. Such argument as advanced on behalf of the petitioners
is not acceptable to this Court inasmuch as the tender documents were eProcurement system generated and there was no technical glitch in the said
system. Thus, the authenticity of the said uploaded documents cannot be disputed.
Mr. Bhattacharya has argued that the difference in thetotal score among the petitioner no.1 and the private respondent no.8 was of only 0.74
marks whereas the difference between them in the financial bid was of more than rupees three crores but still the authorities had acted in an arbitrary
manner in declaring the respondent no.8 to be L1 and from such sequence it is evident that the authorities have acted in a manner which would benefit
a private party.
It is necessary to remember that price may not alwaysbe the sole criterion for awarding a contract. At times, a higher price for a much better
quality of work may be legitimately paid in order to secure proper performance of the contract and good quality of work. The very purpose of
constituting a committee for scrutinising the tenders is to find out whether any low rate will affect the work. The TEA is the best judge therefor; the
same ordinarily being within its domain and the Court’s interference in such matter should be minimal.
In terms of the additional note the authorities havegranted 70% weightage in respect of technical score and 30% weightage in respect of financial
score. From such procedure adopted it is evident that merit was given preference in selecting the successful bidder.
The participants were called for a power pointpresentation and the Scoring Model provided by the said corrigendum was marked individually by
seven officers being the Registrar (RM), the Deputy Registrar Computer, the Deputy Registrar Accounts, the Assistant Registrar Cash OS, the
Assistant Registrar, the Senior A-C Officer and the System Officer e-Court Project. Such procedure as adopted does not suffer from any
unreasonableness and the writ court cannot sit in appeal over such assessment and cannot convert judicial review proceedings into an inquisitorial one.
There has been no relaxation of the tender conditionsfor the benefit of any other tenderer and the basic need of level playing field for all the
bidders has been maintained. No mala fide can be attributed to such action of the authorities and it cannot be said that the authorities have acted in a
manner which would benefit a private party. There is also no error in the decision making process warranting interference of this Court in exercise its
discretionary jurisdiction.
For the reasons discussed above, this Court is unable togrant the reliefs, as prayed for and the writ petition is, accordingly, dismissed. There shall,
however, be no order as to costs. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible,
upon compliance with the necessary formalities in this regard.