Debson Pumps Pvt. Ltd. Vs Gauhati Municipal Corporation And Ors.

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Judgment

650 paragraphs · 14,450 words

Heard Mr. N. Dasgupta, learned counsel appearing for the petitioner. Also heard Mr. D. Saikia, learned Additional Advocate General, Assam,

along with Mr. S. Bora, learned Standing counsel, Gauhati Municipal Corporation (GMC), appearing for respondent Nos. 1 and 2 as well as Mr. R. L.

Yadav, learned counsel appearing for respondent No. 3.

The respondent No. 1 had floated an Invitation For Bid (for short, â€œtender noticeâ€)dated 05.12.2017 for the work of â€œ2 Nos. of raw water

pump sets for Supply, Installation, Testing and Commissioning of electrical motor driven Horizonal Multistage (10 stage) centrifugal pump (220 HP)

having efficiency not less than 73% with rated impeller dia not less than 271 mm., coupled with TEFC squirrel cage foot mounted induction motor

suitable for operation with 415 (+-10%) V, 3 phase power supply with star-delta starter at 2nd Stage Pumping Station along with common distribution

panel board under Kamakhya Water Supply Schemeâ€ (for short, â€œthe work in questionâ€).

The pleaded case of the petitioner, in short, is that in response to the said tendernotice, the petitioner, respondent No. 3 and some other tenderers

had submitted bids. Prior to floating of the said tender notice dated 05.12.2017, respondent No. 1 had floated another tender notice dated 10.11.2017

for the same purpose and, as all the tenders were found to be technically disqualified on 29.11.2017, the fresh re-tender notice dated 05.12.2017 was

issued. It is averred that respondent No. 3 had emerged as the L-3 bidder while the petitioner had emerged as the L-2 bidder. The L-1 bidder was

disqualified. However, despite there being various irregularities in the bid of the respondent No. 3, as stated in paragraph 17(a) to 17(h) of the writ

petition, the Tender Evaluation Committee, in its meeting held on 14.12.2017 recommended award of the contract in favour of respondent No. 3. It is

pleaded that the respondent No. 1 considered the bid of the petitioner to be non-responsive for nonsubmission of power of attorney and that such

ground has no basis as the respondents, by their own act and conduct, had waived the necessity of submission of power of attorney as, during the first

round, when all the bids had been rejected, non-submission of power of attorney was not made a ground for rejection of the bid of the petitioner.

In the affidavit filed by respondent Nos. 1 and 2, it is stated that the respondent No. 3had submitted a Term Deposit Receipt (TDR) towards

earnest money deposit which is valid for a period of one year and the date of expiry of the TDR was incorrectly uploaded in the website. Paragraph

17 (a) to 17(h) of the writ petition is dealt with at paragraphs 13, 14, 15, 16, 17 and 18. In the affidavit of respondent Nos. 1 and 2, a notice dated

16.12.2017, asking the respondent No. 3 to proceed with the work, is annexed. It is pleaded that the petitioner did not fulfill the mandatory requirement

of the bid condition at Clause 3(a), which requires furnishing of original power of attorney for signing the bid and, therefore, the bid of the petitioner

was rightly rejected.

Respondent No. 3 had also filed an affidavit wherein it is stated that the petitioner hadneedlessly introduced the concept of â€œrevised tenderâ€

and, in fact, the tender notice dated 05.12.2017 was an independent tender notice having nothing to do with the previous tender notice dated

10.11.2017. It is also pleaded that the bid of the petitioner was rightly rejected as the petitioner did not annex any power of attorney/authorization of

the Board of Directors of the petitioner company authorizing the petitioner to submit bid. It is stated that the one year validity of the earnest money

deposit does not apply to a TDR and the same is applicable only to Demand Draft/Bankerâ€™s Cheque as the pledgee has full right to encash

TDR/Fixed Deposit receipt even after the maturity date is over.

Mr. Dasgupta, learned counsel for the petitioner has submitted that the rejection of thebid of the petitioner on the ground of non-submission of

power of attorney is wholly arbitrary and illegal as a company is not required to give any power of attorney when the company submits a bid in

response to a tender notice. He has drawn the attention of the court to Section 179 of the Companies Act, 2013 to submit that only in matters

elucidated therein, Board of Directors of a company shall have to exercise powers on behalf of the company by means of resolutions passed at the

meetings of the Board. He has further submitted that if, for submitting a bid, Board resolution has to be taken to authorize a Director of the Board or

any other person, it will not be possible for a company to submit any bid as notice of minimum twenty-one days is required to convene such a meeting.

He has submitted that submission of bid is a part of regular business of the petitioner company. In this connection, Mr. Dasgupta places reliance on

Section 21 of the Companies Act, 2013. Drawing attention of the court to the â€œNoteâ€ in the first page of the tender notice, he points out that

online mode for submission of both technical and financial bid was mandatory and, in that view of the matter, as evident from the affidavit of the

respondent Nos. 1 and 2 as well as the affidavit of respondent No. 3, documents such as Single Line Diagram with Built Up Materials (B.O.M.), list

of technical persons and their qualifications, etc., were submitted offline by the respondent No. 3 and, therefore, ex facie, the bid of the respondent

No. 3 was not valid. He further submits that the name of the petitioner was shown as a Director in the Bid Submission Confirmation of E-

Procurement System of the Government of Assam and, therefore, there could not have been any doubt about the identity of the Director. The bid of

the petitioner was rejected on the untenable ground of non-submission of power of attorney just to accommodate the interest of the respondent No. 3

and to bestow undue favour to it. Mr. Dasgupta places reliance in the Powers of Attorney Act, 1882 to contend that execution of power of attorney is

not envisaged for submission of bid. In support of his submissions, he places reliance on the judgement of the Supreme Court in the cases of Samrat

Shipping Co. Pvt. Ltd. vs Dolly George, reported in (2002) 9 SCC 455, National Small Industries Corporation Limited vs. Harmeet Singh Paintal and

Another, reported in (2010) 3 SCC 330, Gopalakrishna Trading Co. vs. D. Baskaran, reported in 1994 (Vol. 80) Company Cases 53, and Shakthi

Concrete Industries Ltd. and Others vs. Valuable Steels (India) Ltd., reported in 2000 (Vol. 100) Company Cases 429.

Mr. S. Borah, learned Standing counsel, GMC, had made the initial submissions onbehalf of the respondent Nos. 1 and 2 and he had placed reliance

on the judgements of the Supreme Court in Dale & Carringtone Invt. (P) Ltd. and Another vs. P. K. Prathapan and Others, reported in (2005) 1 SCC

212 and Shubh Shanti Services Ltd. vs. Manjula S. Agarwalla and Others, reported in (2005) 5 SCC 30.

Later on, Mr. D. Saikia, learned Additional Advocate General, Assam, has supplementedthe arguments and has submitted that at the time of filing

of this writ petition, the petitioner had enclosed a Board resolution passed by the Board of Directors of the petitioner company authorizing one of its

Directors to institute this proceeding before this court. But a power of attorney or such a resolution of the Board was not annexed with the tender

documents. He has submitted that there is no pleading to the effect that it is not possible on the part of the company to execute a power of attorney as

is sought to be contended by Mr. Dasgupta and the only plea taken in the writ petition is that the requirement of submitting power of attorney was

waived by the tendering authority as the petitionerâ€™s bid submitted in response to the earlier tender notice dated 10.11.2017 was not rejected in the

meeting held on 29.11.2017 on the ground of non-furnishing of power of attorney. He submits that the fact remains that the bid of the petitioner was

rejected on an earlier occasion and even if an additional ground was taken in rejecting the bid of the petitioner, it cannot be said that the respondent

Nos. 1 and 2 had waived any requirement when a fresh tender process was initiated again. He also submits that in absence of any power of attorney

or any authorization by the Board of Directors permitting a Director to submit bid, the individual action of a Director in the form of submission of a bid

cannot bind the company and, therefore, GMC could not have proceeded to entertain the bid submitted by the petitioner without any authorization as it

could have led to host of adverse consequences, including multiplicity of litigations, in future. He submits that the petitioner failed to comply with one of

the most essential requirements of the tender notice and, therefore, it has got no right to question the decision making process so far as allotment of

contract in favour of respondent No. 3 is concerned. Mr. Saikia submits that supply of water to the Kamakhya Temple and its vicinity is of utmost

public importance and that on two previous occasions, contract could not be awarded to any tenderer as the tenderers had failed to qualify in the

tendering process. He contends that the arguments advanced by Mr. Dasgupta that the respondent No. 3 had not submitted Line Diagram for 10

stage pump is not part of the pleadings and that furnishing of such drawing, according to him, cannot be equated with non-submission of power of

attorney as submission of Line Diagram is only an ancillary condition of the tender. It is further submitted by him that the pumps must be able to draw

water up to the required level and even if no Line Diagram is given, the same will not, in any way, affect the ultimate objective of GMC if the pumps

operate and function to the satisfaction of GMC. Mr. Saikia, however, candidly submits that that the tender could have been drafted in a much better

way inasmuch as requirement of submission of sealed tender in the Detailed Tender Notice (Re-Tender) is incongruous to an online mode of

submission of tenders as indicated in the Invitation For Bid.

Drawing attention of the court to Clause 13 of the Terms and Conditions, he submits that the clause goes to show that the tender documents are to be

filled in, signed and stamped on each page by the tenderer and the complete set along with all documents and information complete as required shall

have to be submitted under sealed covers within the due date, time and place as specified in the tender notice. Respondent No. 3 had submitted all

documents as required by Clause 13 and, in these circumstances, bid submitted by the respondent No. 3 cannot be said to be invalid and, thus, its bid

was rightly considered by the Tender Evaluation Committee.

Mr. Saikia submits that a reading of the minutes of the meeting of the TenderEvaluation Committee, held on 14.12.2017, would go to show that the

bid of the L1 bidder was rejected as the make of the pump and motor was different though the same were required to be of the same make in terms

of Clause 25D(c)(ii)(a), which, however, was wrongly noted only as Clause 25D. The Tender Evaluation Committee had noted that the performance

curve and data sheet were found to be that of a 5 stage pump in place of 10 stage pump but, at the same time, it was also recorded that the L1 bidder

had claimed that head and discharge would meet the criteria laid down in the tender notice. Mr. Saikia submits that both the respondent No. 3 and the

petitioner had also participated in the previous tendering process and if any undue favour was to be shown to respondent No. 3, GMC authorities

would have shown such favour on the previous occasion itself. It is submitted by him that the process adopted and the decision taken by the

respondent Nos. 1 and 2 cannot be said to be arbitrary or irrational or that the process was mala fide or intended to favour respondent No. 3. He

strenuously argues that even if a fine legal point is made out against the award of contract to respondent No. 3, keeping in mind the overall public

interest, it is not a fit case for interference. In support of his submissions, Mr. Saikia has placed reliance on the judgment of the Supreme Court in

Central Coalfields Limited vs. Sll - Sml (Joint Venture Consortium), reported in (2016) 8 SCC 622.

10.

Mr. R. L. Yadav, learned counsel appearing for respondent No. 3 has submitted that thebid of the respondent No. 3 is conforming to the terms

and conditions of the tender notice while the petitioner failed to comply with the essential requirement of furnishing power of attorney and, therefore,

the writ petition is liable to be dismissed. It is submitted by him that without laying any foundation that the respondent No. 3 had not submitted Single

Line Diagram for 10 stage pump, arguments have been advanced by Mr. Dasgupta on the basis of document at page 89 of the writ petition. In this

connection, he asserts that the pleaded case of the petitioner is only that respondent No. 3 had not provided Single Line Diagram with B.O.M. for

panel board. Mr. Yadav submits that if a specific plea was taken by the petitioner, appropriate response would have been given by respondent No. 3

with regard to the said diagram. He, however, submits that submission of Mr. Dasgupta is wholly misconceived as the diagram furnished by the

respondent No. 3 indicates the maximum number of stages as H/V=14 X 8. Mr. Yadav also places reliance on the judgement of the Supreme Court in

Central Coalfields Limited (supra).Â

11.

On a specific query of the court, Mr. Dasgupta submits that there are four Directors inthe company and the person who signed the bid documents

is one of the Directors.

12.

I have considered the submissions of the learned counsel for the parties and haveperused the materials on record.

13.

The petitioner had submitted its bid for Rs. 45,00,000.00, whereas the respondent No.3 had submitted its bid for Rs. 49,31,500.00. The Tender

Evaluation Committee was comprised of Joint Commissioner, Financial Advisor, Chief Engineer, Executive Engineer/OSD, In-Charge of Water

Works Wing and Assistant Engineer, Kammakhya Water Works Wing of GMC. A perusal of the minutes of the meeting of the Tender Evaluation

Committee, held on 14.12.2017, goes to show that three tenderers had submitted bids pursuant to the tender notice dated 05.12.2017. The minutes

reflects that after threadbare discussion, the following decisions were taken:

Â â€œ1) For Industrial Systems, Guwahati:

Â Â Â Â Â Â Â Â Â On perusal of pump performance curve and data sheet it was found that 5 stage pump set instead of 10 stage pump set was

furnished, though they have claimed head and discharge will meet the criteria. The type of pump is Mather & Platt and motor is C.G. (Crompton and

Greaves Ltd.) which is not same make as per the NIT clause no.

25(D). Hence, the bid is technically disqualified.

2) For M/s Debson Pumps Pvt. Ltd., Kolkata:

Â Â Â Â Â Â Â Â Â M/s Debson Pumps Pvt. Ltd. has not submitted the Power of Attorney which is required as per NIT under Clause No. 3(a).

Therefore M/s Debson Pumps Pvt. Ltd. is found to be Non-Responsive.

3) For Sujata Enterprise: Quoted Rate:

Â Â Â Â Â Â Â Â Â On perusal of all documents submitted Online & Offline the said bidder has been found technically Responsive as per NIT.

Â Â Â Â Â Â Â Â Â Considering the urgency of works and in view of the dilapidated condition of the Pump Sets, the Tender Evaluation Committee

has decided to consider the tender documents submitted both Online & Offline mode as this is third time that tender for the work has been called for.

Â Â Â Â Â Â Â Â Â M/s Sujata Enterprise is found technically qualified and committee has recommended to award the contract to them at their

quoted rate of Rs. 49,31,500.00.â€

14.

A perusal of the tender notice dated 05.12.2017 goes to show that fresh bids wereinvited for the Kamakhya Water Supply Scheme, Guwahati.

However, in the heading â€œInvitation For Bidâ€, the words â€œRe-bidâ€ also find place. Apparently, the tender notice dated 10.11.2017 and the

tender notice dated 05.12.2017 are not identical. While the tender notice dated 05.12.2017 talks about Centrifugal Pump of 220 HP, the tender notice

dated

10.11.2017 was in respect of Centrifugal Pump of 220 HP. The tender notice dated 05.12.2017 indicates that the estimated amount was Rs.

54,67,326.00 with the period of completion of three months. It will be relevant to refer to the â€œNotesâ€ 1, 3, 3(a), 3(b) and 4 of the Invitation For

Bid (Re Bidding), which read as follows:

â€œ 1. Online mode of submission of both Technical and Financial Bid is mandatory.

Manual submission of Bid will not be accepted.

Original copy of the following documents must be submitted on or before 11/12/2017 up to 15.00 hours at the office chamber of the undersigned.

(a) Original Power of Attorney for signing of Bid.

(b) Bid securities in the form of TDR/FDR from a nationalised/scheduled bank.

A hard copy of the technical bid submitted online is to be submitted on or before 11/12/2017 up to 14.00 hours for evaluation purpose. For any

discrepancy between the online bid and the hard copy of the bid, the online bid will be governed and will be considered for evaluation.â€

15.

With regard to the rejection of the bid of petitioner, the petitioner has, in paragraph 16of the writ petition, stated as follows:

â€œ16. The petitioner states that the flimsy ground for refusal of awarding the contract to the petitioner by the respondent No. 1 was allegedly non-

submission of power of attorney by the petitioner while submitting the quotation against the tender floated by the respondent No. 1 and that the

petitioner was allegedly non responsive. Such an aspersion is bald and baseless as the petitioner has all throughout remained vigilant and alert. More

so, the respondent authorities by their own act and conduct has waived the necessity for submission of the power of attorney, since during the first

round when all the bidders were rejected, non-submission of power of attorney was not made a ground by the respondent authorities for rejection of

the petitioner herein.â€

16.

From the above, it is apparent that the only ground taken by the petitioner for non-submission of power of attorney was that â€œduring the first

round when all the bidders were rejected, non-submission of power of attorney was not made a ground by the respondent authorities for rejection of

the petitionerâ€, meaning thereby, perhaps,Â that when the technical bids were disqualified in the Technical Bid Evaluation Committee meeting held

on 29.11.2017, the bid of the petitioner was not rejected on the ground that it had not submitted power of attorney. No material is placed by the

petitioner to demonstrate that the petitioner had not submitted power of attorney in respect of the earlier tender notice dated 10.11.2017. Even if it had

not submitted power of attorney and even if the bid of the petitioner was not rejected because of non-furnishing of power of attorney on a previous

occasion, the petitioner cannot assume that in future also such omission will be waived or ignored. No plea is taken by the petitioner in the writ petition

that it is not possible for a company to execute power of attorney for the purpose of submission of bid.

17.

It is also important to notice the prayer made by the petitioner, which is as follows:

â€œIt is therefore, prayed that Your Lordship would be pleased to admit this instant writ petition, call for the record, issue Rule calling upon the

respondent to show cause as to why:

(a)Â The action of the respondent authorities in issuing the contract in favour of the respondent No. 3 shall not be interfered with and adjudged as

illegal; (b) A writ of mandamus should not be issued directing the respondent Nos. 1 and 2 to award such contract in favour of the petitioner thereby

cancelling the contract awarded in favour of the respondent No. 3. Â And after hearing the causes, if any, Your Lordships would be pleased to make

the Rule absolute granting the aforesaid reliefs and/or pass such further order or order as Your Lordships may deem fit and proper.â€

18.

A perusal of the prayer demonstrates that the petitioner has not even prayed forsetting aside the decision of the Tender Evaluation Committee

with regard to rejection of its bid and what is prayed for is only to set aside the award of the contract in favour of respondent No. 3 and to award the

contract in favour of the petitioner. It is not a case that despite the bid of the petitioner having been held to be valid and despite it being the lowest

valid tenderer, respondent No. 3 was awarded the contract. In absence of any challenge to the decision making process culminating in rejection of the

bid of the petitioner, this court is of the considered opinion that the validity of such rejection need not be gone into in the light of the submissions

advanced by Mr. Dasgupta to the effect that a company is not required to give any power of attorney when the company submits bid in response to a

tender notice. However, it needs to be stated that the submission of Mr. Dasgupta that there is a statutory requirement of giving of 21 daysâ€™ notice

for convening a meeting of the Board of Directors is not correct inasmuch as Section 173(3) of the Companies Act, 2013 provides that a meeting of

the Board shall be called by giving not less than 7 daysâ€™ notice in writing to every Director at his address registered with the company. It is also

provided that a meeting of the Board may also be called at shorter notice to transact urgent business subject to the condition that at least one

independent director, if any, shall be present at the meeting.

19.

The decision in Samrat Shipping Co. Pvt. Ltd. (supra) was in the context of the Negotiable Instruments Act, 1881 (for short, â€œ1881 Actâ€),

wherein dismissal of the complaint under Section 138 at the threshold on the premise that the individual had not produced certified copy of the

resolution of the Board of Directors was held to be too hasty an action. In National Small Industries Corporation Limited (supra), the Supreme Court,

referring to Section 291(1) of the Companies Act, 1956, which is pari materia with Section 179 of the Companies Act, 2013, had observed that a

company, though a legal entity, can act only through its Board of Directors and that the settled position is that a Managing Director is, prima facie, in

charge of and responsible for the companyâ€™s business and affairs and can be prosecuted for functions by the company and, so far as the other

Directors are concerned, they can be prosecuted only if they were in charge of and responsible for the conduct of the business of the company. The

decision in Gopalakrishna Trading Co. (supra) as well as in Shakthi Concrete Industries Ltd. (supra) were also in the context of a complaint filed by

the company under Section 138 of the 1881 Act.

20.

In Dale & Carringtone Invt. (P) Ltd. (supra), the Supreme Court had held that a company is a juristic person and it acts through its Directors who

are collectively referred to as Board of Directors and an individual Director has no power to act on behalf of the company of which he is a Director

unless, by some resolution of the Board of Directors of the company, specific power is given to him/her. The powers of Directors are delineated in the

Memorandum of Association of the company and the Directors are bound to act accordingly. As agents of the company, they must act within the

scope of their authority and must disclose that they are acting on behalf of the company. In the instant case, the Memorandum of Association is not

placed by the petitioner.

21.

In Shubh Shanti Services Ltd. (supra), it was held by the Supreme Court that in the matters of company affairs, Directors act as a body and

collectively as a Board. Any Director, acting individually, has no power to act on behalf of the company in respect of any matter except to the extent

to which any power(s) of the Board have been delegated to him by the Board within the limit permitted by the Companies Act or any other law.

22.

Although, in absence of any challenge to the decision of the Tender EvaluationCommittee that the petitionerâ€™s bid was non-responsive, the writ

petition could have been dismissed without going into the alleged irregularities pointed out in the writ petition in respect of the bid of the respondent No.

3, the court considers it appropriate to examine, broadly, as to whether the decision of the authority to award the contract in favour of respondent No.

3 was mala fide or intended to favour it or whether the process adopted or the decision taken was so arbitrary and irrational that it can be said that the

decision is such that no responsible authority, acting reasonably and in accordance with relevant law, could have reached.

23.

The irregularities in the tender of the respondent No. 3, as set out by the petitioner atparagraph 17 of the writ petition, read as follows:

â€œ17. The petitioner was extremely shocked and surprised after obtaining a copy of such minutes of meeting of the Tender Evaluation Committee

held on December 14, 2015 (Sic) and it became apparent that the tender was awarded to respondent No. 3 despite the fact that the said respondent

No. 3 had failed to match various criteria laid down by the respondent No. 1 and such irregularities committed by the respondent No. 1 while awarding

the contract to the respondent No. 3 are stated herein below:

(a) As per clause No. 2 in tender document, it is mentioned that the fixed deposit receipt shall be valid for a minimum period of 1 year from the date of

opening of tender. In this regard, the tender opening date is December 12, 2017. The respondent No. 3 has submitted such fixed deposit receipt being

No. 8541037718-0 having a maturity date of November 21, 2018 and the same does not fulfill the specific mandate of the tender clause.

(b) It is further apparent to note that the official website of the Government of Assam has duly uploaded the tender document submitted by various

bidders and the same categorically mentions that the fixed deposit receipt submitted by the respondent No. 3 is due to expire on December 28, 2017.

(c) As specifically mandated by the tender document, a 10 stage pump was specifically required and bids were to be submitted accordingly. However,

it will be apparent from a bare perusal of the tender documents as submitted by the respondent No. 3 that he has submitted his bid in respect of 7/8

stage pumps. In spite of the same, the tender was awarded to the respondent No. 3 by respondent No. 1 in colourable exercise of judicial power.

(d) It is further imperative to mention that the respondent No. 3 had not provided Single Line Diagram with BOM for panel board as per tender clause

No. 25-D(f) and all parties were initially rejected for such non-submission of Single Line Diagram with BOM by the Tender Evaluation Committee on

November 29, 2017. In the revised technical bid as submitted the respondent No. 3, the same still suffers from the defect. In spite of the same, the

tender was awarded to the respondent No. 3 by the respondent No. 1 in colourable exercise of judicial power.

(e) It is further apparent that as per tender clause No. 25D(g) bidders are under an obligation to provide technical pump performance data sheet and

curve. However, respondent No. 3 has submitted only curve but no data sheet. In this regard, it will not be out of place to mention that for such

nonsubmission of data sheet and non-submitting of curve of bidder, namely, Ravi Brothers was disqualified by the Tender Evaluation Committee on

November 29, 2017. In spite of this fact, the respondent No. 3 was awarded the tender on December 14, 2017 for reasons best known to the

respondent No. 3, although the same is a mandatory requirement provided by the respondent No. 1 itself.

(f) As per tender clause 25-D(h), every bidder is under an obligation to furnish a list of technical person and their respective qualifications along with

the tender document. In spite of such specific requirement, the respondent No.3 has failed to provide any such list of technical persons.

(g) As per tender clause No. 25-D, the pump and motor should be of same make but the technical offer as submitted by the respondent No. 3 has two

different makes. The same is technically contradictory with the relevant requirements of the tender documents. It is also not out of place to mention

that the L1 bidder M/s Industrial Systems was rejected on December 14,

2017 by the Evaluation Committee on the ground that the type of pump and motor were not of the same make as the pump is of Mather & Platt but

the motor is of Crompton Greaves Ltd. But while awarding the contract to the respondent No. 3 being L3 bidder, no reason has been assigned for

overlooking such vital criteria which the respondent No. 3 failed to fulfill while submitting his bid and quotation with the respondent No. 1.

(h) It will not be apposite to mention in this context that mere brochures have been annexed by the respondent No. 3 where specific technical

drawings need to have been submitted by the respondent No. 3. In spite of such serious maladies, the respondent No. 1 awarded the tender to the

respondent No. 3 for reasons best known to it.â€

24.

Paragraphs 17 (a), (b), (c), (d), (e), (f), (g) and (h) of the writ petition, which arequoted above, are dealt with in the affidavit of respondent Nos. 1

and 2 at paragraphs 13, 14, 15, 16, 17, 18, 19 and 20, which read as under:

â€œ13. That as regard to the statements made in paragraph 17(a) of the writ petition, the answering deponent begs to reiterate the statement made in

paragraph 8 and 9 of the instant affidavit in opposition.

14.

That as regard to the statements made in paragraph 17(b) of the writ petition, theanswering deponent begs to state that statements are unfounded

and unsubstantiated.Â

15.

That as regard to the statements made in paragraph 17(c) of the writ petition, theanswering deponent begs to state that the statements are

incorrect and hence denied. The document at page 97 of the writ petition and records clearly indicates that the respondent No. 3 submitted his bid in

respect of 10 stage pump.

16.

That as regard to the statements made in paragraph 17(d) of the writ petition, theanswering deponent begs to state that the Single Line Diagram

with Bill of Materials (BOM) was submitted in offline as hard copies by the respondent No. 3.

17.

That as regard to the statements made in paragraph 17(e) of the writ petition, theanswering deponent begs to state that the technical pump

performance data sheet and curve were submitted by the respondent No. 3 in offline i.e. in hard copy.

18.

That as regard to the statements made in paragraph 17(f) of the writ petition, theanswering deponent begs to state that list of technical persons

and their qualifications was submitted by the respondent no. 3 offline i.e. in hard copy.

19.

That as regard to statements made in paragraph 17(g) of the writ petition, theanswering deponent begs to state that statements are incorrect and

designed to mislead the Honâ€™ble Court inasmuch as the document at page 97 of the writ petition itself shows that the pump as per specification in

IFB dated 05.12.17.

20.

That as regard to statements made in paragraph 17(h) of the writ petition,the answering deponent begs to state that the allegations are unfounded

and hence denied.â€

25.

Para 17(a) to (h) of the writ petition is dealt with by the respondent No. 3 in paragraph13 of its affidavit, which reads as follows:

â€œ13. That the statements and submissions made in para 17 are not correct and they are not admitted and the petitioner has made those statements

by misreading the relevant documents of the tender and so the same cannot be relied on in any manner. However this deponent does not admit any of

the statements which are contrary to the records. Further, against the aforesaid submissions the following clauses are relevant which are as follows:-

(a) Clause No. 2 in tender document does not mention that the fixed deposit receipt shall be valid for a minimum period of 1 year. Therefore this

statement of the petitioner is totally denied by respondent No. 3.

(b) This clause does not hold good in view of the submission made in 17(a).

(c) Respondent No. 3 begs to state that he has submitted two alternatives in the tender â€" Alternative no. 1 for 7/8 stage pump (Annexure 5 page 88)

and Alternative no. 2 for 10 stage pump (page 97) as required in the tender document. Hence the statement of the petitioner is false and baseless.

(d) Clause no. 25D of the tender specifies the design requirements and features of construction. All pages of the tender were duly signed by

respondent No. 3 and deemed to have been accepted by him. This includes no. 25D and 25D(f).

(e) As stated in para 17(d) above, all features of construction and design requirements have been accepted by Respondent no. 3. The curve submitted

by respondent No. 3 (page 89) is performance curve which gives the performance data of the pump. Besides the respondent No. 3 has duly

mentioned the specifications and data (Page No. 97). Therefore, the statement is denied.

(f) The list of technical persons is a part of the specifications of Pumps (Page 51, 52) and not the eligibility criteria or pre-requisite for filing of the bid.

The petitionersâ€™ bid has been rejected by the respondent Nos. 1 and 2 as the bid did not fulfill the basic requirement of NIT and hence found to be

non-responsive whereas the respondent No. 3 fulfilled all the eligibility criteria required as per NIT. Hence the statements made by the petitioner in

the said Para 13 are not correct on the material facts of the case.

(g) This statement is denied by the respondent No. 3. He has mentioned the same make of pump and motor in his tender (Page 97). It is further to be

noted that the question of L1 bidder and L3 bidder does not arise at all as the initial requirements as per NIT were not fulfilled by the other two

bidders and so their bids were rejected and/or not considered. And therefore the comparison of lower and higher price does not arise with respondent

No. 3.Â

(h) Respondent No. 3 would like to mention that all necessary technical data have been furnished by him in the specifications of pump and motor and

panel board (page No. 97) and the performance curve (page No. 89) and to that effect all documents were furnished with the bid.â€

26.

The tender notice says that submission of both technical and financial bid in online mode was mandatory and that manual submission of bid will not

be accepted. At the same time, a hard copy of the technical bid submitted online was also required to be submitted on or before 11.12.2017 up to

14.00 hours for evaluation purpose. In case of any discrepancy between the online bid and the hard copy of the bid, it is stated that the bid submitted

online would govern and would be considered for evaluation.

27.

The Detailed Tender Notice dated 05.12.2017, on the other hand, indicates that sealedtenders for the work, in question, were invited which were

to be received at the Water Works Wing of GMC up to 14.00 hours on 11.12.2017. Clause 13 of the Detailed Tender Notice (ReTender) reads as

follows:

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â â€œ13. Mode of Submission of Tender:

The Tender document shall be duly filled in, signed & stamped on each page by the tenderer and the complete set along with all documents and

information complete as required shall be submitted under sealed covers within the due date, time and place as specified in the Notice Inviting Tender.

The envelopes shall be super scribed with the name of the work, Full Name, Address & Phone no. of the tenderer and with a note â€œTENDERâ€.

The tender, complete in all respects, shall be submitted as mentioned below and addressed to:

THE COMMISSIONER,

GAUHATI MUNICIPAL CORPORATION,

PANBAZAR, GUWAHATI â€" 781001 (ASSAM)

Tender once submitted cannot be withdrawn after opening of tender.

Delayed/late offers due to any reason whatsoever and bids received in torn or open condition shall not be considered for opening and the same shall

be returned as it is.â€

28.

Thus, Clause 13 reproduced above does not indicate that the tender documents wereto be submitted online. Mr. Saikia is correct in submitting that

the tender notice could have been drafted in a much better way.

29.

In view of the inherent contradiction, I am of the considered opinion that the decisionof the Tender Evaluation Committee to consider the tender

documents submitted by the respondent No. 3 in both online and offline modes cannot be said to be vitiated by arbitrariness. Even though the tender

notice indicated that online submission of bid is mandatory, having regard to Clause 13 of the Detailed Tender Notice (Re-Tender), a balanced view

has to be taken and submission of online bid cannot be held to be mandatory as, in that case, specific provision in Clause 13 would have been rendered

otiose and nugatory.

30.

The relevant clause of the tender relating to Earnest Money reads as under:

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â â€œTERMS AND CONDITION:

Earnest Money:

The Tenderer shall, as a condition for consideration of the tender, furnish Earnest Money @ 2% on the Estimated Value (1% for SC and ST) by

TDR/FDR in the prescribed format (from Nationalized/Schedule Bank) pledged in favour of â€œCommissioner, Guwahati Municipal Corporation,

Guwahatiâ€ for an amount specified in the Notice Inviting Tender. Earnest Money furnished by Demand Draft or by Bankers Cheque shall remain

valid for a minimum period 1 (one) year from the date of opening of tender. Tender(s) without Earnest Money will be rejected.â€

31.

The respondent No. 3, admittedly, had submitted a Term Deposit Receipt with maturitydate of 21.11.2018. The clause relating to earnest money

only indicates that earnest money furnished by Demand Draft or by Bankers Cheque should remain valid for a minimum period of one year from the

date of opening of the tender. On the face of it, the validity period of minimum one year appears to be a requirement only in respect of Demand Draft

or Bankers Cheque. In any event, a TDR/FDR does not have any expiry date but has a maturity date and a TDR gets renewed automatically unless

encashed and it is to be noted that the TDR submitted by respondent No. 3 was pledged in favour of Commissioner, GMC.

32.

From the affidavit of the respondent Nos. 1 and 2, it appears that it is not correct thatthe respondent No. 3 had submitted its bid for 7/8 stage

pump. It appears that respondent No. 3 had given two alternatives: one for 7/8 stage pump and the other for 10 stage pump, as required under the

tender and the GMC authorities had considered the bid submitted by the respondent No. 3 for 10 stage pump. While the petitioner states that the

respondent No. 3 had not offered the pump and motor of the same make as required under Clause 25D(c)(ii) (a), the respondent Nos. 1 and 2 have

denied such allegation. The document at page 97 of the writ petition also appears to lend credence to the stand taken by the respondent Nos. 1 and 2,

as the make of both the pump and motor appears to be of â€œKirloskarâ€ make.

33.

It is also pleaded by the petitioner that respondent No. 3 had not submitted Single

Line Diagram and B.O.M. for Panel Board as per requirement of the tender. In absence of any shortcoming being pointed out, the impression that is

given is that the respondent No. 3 had not submitted Single Line Diagram and B.O.M. for Panel Board. It appears from the record that Single Line

Diagram and B.O.M. for Panel Board was submitted. In course of argument, however, Mr. Dasgupta argued that Single Line Diagram for 10 stage

pump was not submitted by the respondent No. 3, which is strenuously contested by Mr. Yadav. In absence of requisite pleadings, in the context of

the case, where the petitioner had not even challenged its rejection of bid, this court ought not to further delve into the matter. The argument of Mr.

Saikia that, ultimately, drawing or no drawing, the respondent No. 3 has to pump water up to the desired level, cannot be brushed aside.

34.

In Central Coalfields Limited vs. Sll - Sml (Joint Venture Consortium) (supra), the Supreme Court held that the issue of acceptance or rejection of

a bid or bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. The

soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone, or a decision, which no responsible authority,

acting reasonably and in accordance with the relevant law, would have reached. It was also held by the Supreme Court that the court will not

countenance interference with the decision at the behest of an unsuccessful bidder in respect of technical or procedural evaluation.

35.

A broad analysis of the bid of the respondent No. 3 does not persuade the court totake a view that the award of contract was issued in favour of

the respondent No. 3 arbitrarily and malafide in order to bestow undue favour on respondent No. 3.

36.

In view of the above discussions, I find no merit in the writ petition and, accordingly,the writ petition is dismissed. Interim order stands vacated. No

cost.