Dipak Bhattacharjee vs Food Corporation Of India And Ors.

Heard Mr. BN Majumdar, learned counsel appearing for the petitioner as well as Mr. CS Sinha, learned counsel appearing for the respondents.

The petitioner, who is a carrying contractor engaged in the business of transportation and delivery of items on contract basis, has challenged the tender under reference No.Cont.50/NEFR/TE/2016/2 dated 24.10.2016 (Annexure-P/3 to the writ petition) issued by the respondent No.1 on declaring the bid of the petitioner as informal and has also challenged the impugned communication under No.Cont.9/NEFR/TC/DMR-LOCAL/16/Call1/Part dated 30.12.2016 (Annexure-P/6 to the writ petition). It has been further urged as a measure of alternative relief that the respondents be directed by this Court to cancel the tender process initiated by the Notice Inviting Tender, NIT for short, dated 24.10.2016 and to initiate a fresh tender process in respect of the same work under reference.

The controversy in this petition falls within a short compass. The undisputed fact is that in response to NIT No. Cont.50/NEFR/TE/2016/2 (Annexure-P/1 to the writ petition) issued by the Assistant General Manager, Food Corporation of India for the work "transportation of foodgrains/allied materials etc. from Railhead Dharmanagar, Tripura to FSD Dharmanagar, Tripura" the petitioner uploaded the tender form. 16.11.2016 was fixed for opening the technical bid. It is not also in dispute that on 30.12.2016 by the letter under No.Cont.9/NEFR/TC/DMR- LOCAL/16/Call1/Part the petitioner was apprised that his tender has been rejected after due scrutiny. The main reason for his rejecting technical bid is that he had neither declared that his firm had not been blacklisted or otherwise debarred during the last five years by the Food Corporation of India or any department of Central or State government or any other Public Sector Undertaking or any other client, for failure to comply with the terms of any contract or for violation of statute, rule or administrative instruction. His firm was never blacklisted/debarred or his period of black listing/debarment had expired. This, according to the respondents, amounts to concealment of fact. Further it was found that there was discrepancy in the name as the tenderer has participated using the name or identity of "Dipak Bhattacharya" while in certain documents [e.g. (i)Income Tax Return Acknowledgement, (ii) Balance Sheet, (iii) P/L Account] the name of the petitioner appears as "Dipak Bhattacharjee". It is to be noted that in the NIT dated 24.10.2016 under the sub-heading „disqualification conditions‟ it has been provided as under:

"(I) Tenderer who have been blacklisted or otherwise debarred by FCI or any department of Central or State Government or any other Public Sector Undertaking will be ineligible during the period of such blacklisting or for a period of 5 years from the date of blacklisting/debarment, whichever is earlier."

The said condition was made, the foremost condition for purpose of the tender.

Mr. BN Majumdar, learned counsel appearing for the petitioner has submitted that in response to the said letter, the petitioner addressed a letter to the General Manager, FCI, Shillong to review its decision as his rate as quoted is far below the rate that has been accepted by the respondent Nos. 4&5. In reply thereof, the Assistant General Manager (Cont), for General Manager (R), the petitioner was informed by the letter dated 03.01.2017 that it is true that previously there were instances where minor clarification had been sought from the participating tenderers, wherever required, in the course of finalization of tenders. This was only to maintain competitiveness in the tender enquiry. However, this practice has led to delay in the finalization of tender on most occasions. Accordingly, the office had decided to evaluate the tenders based solely on the documents submitted online by the tenderers.

Mr. Nandi Majumdar, learned counsel for the petitioner has extended a further plea having referred to the letter No. Cont.9/NEFR/TC/DMR-LOCAL/16/Call1 dated 02.01.2017 (Annexure-P/9 to the writ petition) that uploading of the tender for acceptance was extended till 31.12.2016. Mr. Nandi Majumdar has asserted that since the time for acceptance of tenders was extended up to 31.12.2016, the respondents ought to have allowed the petitioner to correct the omission which occurred inadvertently and bona fide. But since that was not done the petitioner has filed this writ petition urging the said reliefs.

Mr. CS Sinha, learned counsel appearing for the respondents has submitted that the petitioner has admitted his omission. The respondents have delinked the process from the past practices and initiated a very strict compliance of the tender requisites. In view of this, the past practice referred in the writ petition, particularly in para 11.3 will have no impact on the present controversy. Mr. Sinha, learned counsel for the respondents has pointed out to this Court that in para 4 of the tender information attached to the tender documents, there is a disqualification clause which reads as under:

"(I) Tenderer who have been blacklisted or otherwise debarred by FCI or any department of Central or State Government or any other Public Sector Undertaking will be ineligible during the period of such blacklisting or for a period of 5 years from the date of blacklisting/debarment, whichever is earlier."

Whether the petitioner is blacklisted or has suffered disability or suffered ineligibility as referred in para 4.1 of the NIT dated 24.10.2016. It has been provided in the tender document, in para 10(d), that tender which did not comply with the instructions shall summarily be rejected. It has been further provided in 8(g),(h) and (i) as under:

"8(g) Tenders not accompanied by all the Schedules/Annexures intact and duly filled in and signed may be ignored.

(h) It should be clearly understood by the Tenderer that no opportunity shall be given to them to alter, modify or with-draw any offer at any stage after submission of the tender.

(i) Any attempt by tenderer to change the format of any of the supporting documents of the MTF while uploading or any attempt to tinker with the software of the portal will render his tender liable for cancellation and his subsequent blacklisting."

But Mr. Sinha, learned counsel has quite emphatically referred to the following part of the Appendix-I, styled as Forwarding Letter under No.Cont.9/NEFR/TC/DMR LOCAL/16/Call1 dated 24.10.2016. In the said forwarding letter there is a specific column to be done which is as under:

"7. I hereby declare that my Firm/company has not been blacklisted or otherwise debarred during the last five years by the Food Corporation of India, or any department of Central or State Government or any other Public Sector Undertaking, r any other client, for any failure to comply with the terms and conditions of any contract, or for violation of any Statute, Rule, or Administrative Instructions.(*)

OR

I hereby declare that I, my Firm/company was blacklisted/debarred by .................... (here give the name of the client) for a period of .................., which period has expired on ....................... (Full details of the reasons for blacklisting/debarring, and the communication in this regard, should be given)(*)

(*) (strike out whatever is not applicable)

I hereby declare that no contract entered into by me, my Firm/Company with the Food Corporation of India, or any department of Central or State Government or any other Public Sector Undertaking or any other client, has been terminated before the expiry of the contract period at any point of time during the last five years."

Thereafter, the petitioner has put his signature as the tenderer.

Mr. Sinha, learned counsel has further pointed out that the alternative paragraph appearing after the first part of the paragraph 7 has neither been struck out as not applicable. Even no mark has been placed on the first part of the para 7 of the said Appendix-I to the NIT dated 24.10.2016. As a result, it is not comprehensible whether the petitioner has been blacklisted or otherwise debarred for a period specified or unspecified.

True it is that there is no indication whether the petitioner was blacklisted or not. If it is a lapse, it is a fatal lapse, irretrievable with corners of the tender process.

Mr. Sinha, learned counsel has submitted that the respondents have categorically averred that even though the petitioner quoted much lower rate as the transportation charge but since his technical bid has been rejected, his rate was not opened and considered at the time of determining the tender.

The respondents have specifically asserted that the petitioner was technically disqualified for not making the declaration whether he has been blacklisted or not, and because of discrepancy that entered in the name of the participating tenderer in the tender document.

In the rejoinder, the petitioner has further referred to the review application where he has candidly stated as follows:

"Due to bonafide omission, the relevant portion has not been struck out. It has been mere bonafide omission and as a result of such omission declaration to the effect, that, firm was black listed has not been struck out."

But the Corporation-respondent declined to allow the head way obviating the omission that has been left in the tender document as to the black listing or any prohibition while executing the works.

The question that is pertinent for determining the writ petition is that whether on such declaration the tender can be declared as formal for the purpose of considering the rate as quoted by the competing tenderer. It has been further submitted that the omission has been made in respect of a clause which is essential. Even though the respondent may be in a position to gather the position vis-a-vis the petitioner but the petitioner as the contracting agency is/was under obligation to make such declaration accurately, properly and correctly. Any omission as cautioned should be treated seriously. If that was an omission and not avoidance, such omission cannot be ignored even though difference in name of the petitioner may not create a bar in treating his technical bid as from the authenticated documents, his name and status can be gathered.

In view of this, this Court is unable to accept the submission of Mr. BN Majumdar, learned counsel for the petitioner. As consequence thereof, this writ petition stands dismissed. There shall be no order as to costs.