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Judgment
Sabyasachi Bhattacharyya, J
Affidavit-of-service filed in Court today be taken on record.
At the juncture when the petitioner moves the matter, Mr. Jaydip Kar, senior advocate, submits that he has instruction to intervene on behalf of Sri Shibnath Ghosh, since the said Shibnath Ghosh was one of the participants in the impugned tender, which has already reached the stage of finalization.
In view of there being substance in the contention of Mr. Kar, that his client is directly interested in the outcome of the matter, this Court permits Mr. Kar to submit on behalf of said Shibnath Ghosh as an intervenor, despite the latter not being impleaded in the present writ petition.
Learned counsel for the petitioner, at the outset, points out that similar tenders in respect of other hospitals were set aside by this Court by various orders. However, since the present tender was floated retaining the same discrepancies in spirit, it ought to be set aside.
In this regard, learned counsel points out to an order of this Court passed in W. P. No. 20698(W) of 2019 (Rajib Roy Versus The State of West Bengal and others) dated November 25, 2019, which is annexed as Annexure- P/9 at page - 177 of the instant writ petition, from which it is evident that at least some of the points taken herein were also canvassed in the said matter by the present petitioner.
Ultimately, learned counsel appearing for the respondent-authorities having submitted, on the basis of verbal instruction, that the respondent-authorities admitted that there were irregularities in the tender impugned in that writ petition, they wanted to re-issue the said tender. The writ petition was dismissed on such submission being made on behalf of the respondent-authorities.
Learned counsel for the petitioner next points out another order of this Court dated December 6, 2019 passed in W. P. No. 21689(W) of 2019 (Rajib Roy Vs. State of West Bengal & Ors.), which is annexed as Annexure - P/10 at page- 182 of the instant writ petition, wherein a similar tender was sought to be implemented in respect of a different hospital, which writ petition was allowed, thereby setting aside the Notice Inviting Tender (NIT), in view of consent given by the respondent-authorities as to certain admitted discrepancies in the said NIT in the previous writ petition, that is, W. P. No. 20698(W) of 2019, on which basis the order dated November 25, 2019 was passed.
Learned counsel for the petitioner then places reliance on a judgment of a co- ordinate Bench dated December 19, 2019 passed in W. P. No. 22979(W) of 2019 (Dulal Chandra Ghosh Vs. The State of West Bengal & Ors.) wherein, on the basis of an observation that a similar notice was set aside in respect of another hospital, followed by setting aside a further notice in respect of another hospital on the strength of the earlier order, the learned single Judge found that the challenge to that notice rode on those two orders.
Learned Additional Advocate General, appearing for the State in that matter, had submitted that setting aside of the other two memos had been accepted by the State. Accordingly, the said writ petitions were disposed of by setting aside the memos impugned therein.
As such, it is argued on behalf of the petitioner that the present NIT ought also to be set aside on similar grounds.
Pointing out specifically to the discrepancies, which, according to the petitioner, has crept in Clauses 6.1 and 6.2 (at page - 64), learned counsel for the petitioner submits that the said clauses contemplate that the bidder shall quote an administrative charge for providing goods and/or services, as applicable in the e-tender. The administrative charge, as per Clause- 6.1, shall be quoted as a single percentage rate on the "total cost of raw materials" as noted in Column - f of the table given in sub-clause- 6.2 thereinbelow, for supply of the different categories of diets per health facility. Sub-clause 6.2, on the other hand, quoted a chart regarding the rates for different items based on the rates for the alleged Financial Year 2017-2020.
Learned counsel appearing for the petitioner argues that a tender being floated in August, 2019 could not be based on such previous years' rates, thereby fixing the rate on which the tender would have to be responded to by the bidders. This, as per submission of the petitioner, was a colourable exercise of administrative power for the purpose of favouring some of the bidders.
As far as the delay in preferring the instant writ petition is concerned, learned counsel for the petitioner submits that the technical bid evaluation sheet was uploaded recently on the worldwide web, sometime before the filing of the writ petition, although he fairly submits that such contention has not been mentioned in so many words in the writ petition itself.
That apart, learned counsel for the petitioner submits that since several orders were passed by this Court setting aside NITs containing similar clauses as the present one, the petitioner waited for the last such order to be passed to be sure about the legal position as regards the legal right of the petitioner to challenge the currently impugned NIT. As such, the petitioner cannot be faulted for having belatedly coming up before this Court, since only upon adjudication by several learned single Judges on the matter, the petitioner's right crystallized.
It is further submitted by learned counsel for the petitioner that the petitioner did not and could not have participated in the bid, for the simple reason that such participation would tantamount to admitting the terms of the contract. Since this writ petition categorically challenges the terms and conditions of the tender and not merely the tender process or the final result of the tender, the petitioner did not have the option for participating in the tender and then filing the writ petition challenging the same.
Learned senior counsel appearing for the intervenor submits that the petitioner is a mere fence-sitter, probably set up by one Sonar Bangla Caterer, which was an appellant in a previous connected matter. It is submitted that the petitioner, without participating in the tender process, did not have any right to challenge the same, more so after about four months from the last date of opening of the bids, which was stalled merely due to pendency of litigation in this Court.
In this context, learned senior counsel for the intervening party cites an unreported judgment of a co-ordinate Bench of this Court dated August 7, 2019, passed in W. P. No. 10893(W) of 2019, wherein a previous tender, which was challenged by the present intervenor, was set aside, directing the authorities to undertake a fresh tender process for award of contract for supply of dietary items in respect of the subject hospital.
Sonar Bangla Caterer, being aggrieved by such order of the learned single Judge, preferred an appeal. Such appeal, along with the connected application, were disposed of by a division Bench on December 11, 2019, where it was, inter alia, held that public interest was the paramount consideration in the matter of award of a contract by a State and that public interest as well as interest of justice would be sufficiently served if the exercise as directed thereinabove was undertaken at the earliest.
However, the order of the learned single Judge was affirmed and, till the work order was issued, the arrangement to supply cooked diet that had been directed by the order impugned therein was maintained.
It is further submitted that initially a stay order had been passed on the order of the learned single Judge, taking advantage of which, the petitioner did not challenge the present impugned tender.
Learned counsel appearing for the State-authorities, apart from adopting the grounds urged by the intervenor, submits that the tender process has already reached its culmination and merely the opening of the financial bids and the finalization of the tender process was left to be undertaken.
It is further submitted that as many as eighteen persons participated in the tender process, being satisfied with the conditions of the tender and as such, the personal inconvenience of the present writ petitioner in respect of merely one of the clauses, cannot be taken to be a ground for setting aside an administrative discretion exercised by the State.
It is further submitted that the writ court has jurisdiction to interfere within the domain of administrative action only under certain strict conditions. In the present case, it is submitted, there is no gross irregularity in the tender or the terms and conditions therein, justifying interference by this Court.
Upon hearing all sides and going through the materials on record, it is evident that one of the points initially taken by the petitioner, but subsequently relinquished, being that there was no estimated tender value, does not hold water since such an estimated value has been given at the first page of the NIT.
However, what requires consideration is the validity of clauses- 6.1 and 6.2 read together and whether, if there was any irregularity in such clauses, the same would be sufficient to set aside the tender process as well at this mature stage where, already several participants have put in their bids and the tender process has reached its final stage.
On a plain reading of Clause- 6.1, it is evident that the bidder shall quote an administrative charge for providing goods and /or services, as applicable in the e-tender as a single percentage rate on the "total cost of raw materials" as noted in Column - f of the table given in sub-clause- 6.2 thereinbelow. The contradiction arises when the petitioner seeks to interpret the said provision to fix the amount to be quoted by the bidder to be the exact amount as stated in Column - f of Clause- 6.2.
On the other hand, the contention raised to such point is that the amount was not bound to the rates given in Column - f but depended only in the estimated tender value as given on the first page of the tender itself.
The said chart, it is argued by the respondent-authorities, was only a guideline for the purpose of fixing the modality in which the rates were to be quoted.
Going into the merits of such submission, it is seen that both the following interpretations are possible :
i) that the administrative charge had to be quoted as a single percentage rate on the total cost of raw materials exactly as noted in Column- f of the table given in Clause- 6.2, (which would make such interpretation absurd, since, there would then be no necessity for calling bids as the amount would be fixed to the amount given in the said column);
ii) that the rate chart was given as a guideline on the basis of previous three years, being just an indicator as to how the bids were to be put in at any rate, the rate given at Clause - 6.1 being only a workable basis since it reflected the rate of the public diet category-wise for the previous three years and the expression "as noted in Column- f" has to be interpreted not to be literal as far as the rates are concerned, but merely an indicator as to the modality.
A mere look at the said rate chart shows that Column - f contains the total costs of raw materials and Column- g was the maximum administrative costs at a rate of 7.5% on the total costs. The provisions of Clause 6.1, although restricted the bidder to quote up to a maximum of 7.5% as administrative charge and bound the bidder to give the administrative charge as single percentage on the total, the said clause did not bind the bidders from putting the total costs of raw materials as per their own quotes.
Hence, it cannot be said that Clause 6. 1 or Clause 6.2 were on such a high footing of irregularity that the entire tender process is vitiated.
As regards the argument that similar tenders were set aside earlier by this Court, it is seen from both the orders passed by this Court previously, that the State-respondents had agreed that there was irregularity in the tender process, without admitting categorically that such irregularity pertained directly to the contentions raised by the petitioner therein. The orders passed by this court were only on the basis of the concession given by the State that as to there being irregularities, without specifying such irregularities and setting aside the tender process on concession given by the State. However, an admission, to be taken as one, has to be a conscious relinquishment of a particular right. The previous orders passed by this Court do not show any admission on the part of the respondent authorities on whether the contentions of the petitioner were specifically admitted, but reflected general concessions on certain irregularities having happened in the previous tender bids. The last order passed by a co-ordinate bench was absolutely on the basis of the previous orders and the consent given in the said previous orders and did not lay down any ratio as regards any of the contentions raised in the present writ petition.
As such, there could not be any reason for holding that this Court is bound by the orders passed therein.
Moreover, despite the petitioner having contended that its rights crystallized after the previous writ petitions were disposed of, such right to challenge the present tender process, in reality, arose as soon as the tender was floated. Waiting for the uncertain result of future litigation cannot be held to be a valid ground for holding that the right of the petitioner crystallized only after such judgments. Rather, it would indicate that the petitioner, without using the harsh term "fence-sitter", was an opportunist, looking for favourable orders being passed before challenging the present tender process.
That apart, learned counsel for the respondents are justified in pointing out that in the present case, there was a possible interpretation of the Clauses- 6.1 and 6.2 as discussed above, which would validate the said clauses, inasmuch as the rate chart given for the past three years were a mere indicator, on the basis on which the bids had to be given and the actual costs of raw material to be quoted was not fixed therein. Since such an interpretation is possible, it cannot be said that the clauses were perverse enough or were such highly irregular that the same would vitiate the entire terms and conditions of the tender as well, compelling this Court to interfere at this belated stage, when the tender process has already attained finality.
In such view of the matter, there is no reason to justify interference with the impugned tender, floated on August 19, 2019.
Accordingly, W. P. No. 1285(W) of 2020 is dismissed on contest.
There will be no order as to costs.
Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.