Case: Shiba Prosad Banerjee vs The State of West Bengal and others [WPA No.1724 of 2020; IA NO: CAN 1 of 2020]
The Hon’ble Justice Sabyasachi Bhattacharyya of Calcutta High Court on 22nd January 2021, dismissed the WPA No. 1724 of 2020 filed by the Petitioner seeking condonation of delay due to pandemic interventions in challenging the rejection of his bid by the respondent-authorities for the NIT.
Facts of the case:
The Petitioner challenged the rejection of his bid, and the acceptance of the bid of respondent no.10 in a tender floated by the respondent-authorities on May 27, 2019, for the supply of cooked diet for indoor patients admitted to health facilities.
The Petitioner pleaded the condonation of delay of six months for filing such writ petition, on the account of interventions due to pandemic.
The revised bid summary’s report (Annexure P-1, writ petition, p. 81) indicated that the Petitioner’s bid was rejected for non-submission of Performance Certificate in a prescribed format as per Clause 3 of the Notice Inviting Tender (NIT).
The Petitioner argued that he has duly submitted a Performance Statement dated June 7, 2019, in terms of the proforma given in Clause 3 of the NIT. Despite that, the tendering authorities rejected the Petitioner’s bid for non-submission of the Performance Statement in a prescribed format.
The Petitioner contended that the bid of the private respondent was accepted unlawfully, although the same was in contravention of the conditions stipulated under clause 18.3 and 13.1 in the NIT.
The Petitioner argued that the Performance Statement of the private respondent was not accompanied by a notarised certification authenticating the correctness of the information, furnished as under Clause 3.1 of the NIT. While the Petitioner has furnished the full-fledged notarial certificate.
Further, in reply to the respondent’s arguments, the Petitioner contended that requirement stipulated in Clause 3.1, sub-clause (a) and (b), of the NIT was not a part of the Performance Statement mentioned in the NIT and the term “C.M.O.H. Burdwan” sufficiently covered the requirement of the proforma for Performance Statement.
Also, the Petitioner argued that there was a delay in online uploading of the necessary details pertaining to the tender which, coupled with the intervening pandemic situation, caused the delay in filing the writ petition.
The respondent-authorities pleaded that the undertaking furnished by the private respondent sufficiently complied with the provisions of clause 13.1 of the NIT.
The respondent pleaded that the notarial stamp affixed to the Performance Statement of the private respondent has fulfilled the criteria stipulated in the NIT, although not a ‘notarial certificate’ in the strictest sense. Further, contended that the Performance Statement of the Petitioner merely mentioning “C.M.O.H Burdwan” was insufficient.
Item C under the credential document checklist chart under Clause 12.3 of the NIT, was a mandatory requirement and as a piece of documentary evidence which the Petitioner failed to submit, exposed the Petitioner’s bid to rejection.
The respondent-authorities further argued that the writ petition was filed about six months after issuance of the work order in favor of the private respondent, with the absence of an appropriate explanation for such inordinate delay, the writ petition ought to be dismissed on such score alone.
The court remarked that a conjoint reading of the clauses of the NIT does not rule out the view that the “documentary evidence”, as sought in the last paragraph of Clause 3.1, also encompassed the eligibility criteria stipulated in the sub-clauses (a) and (b) of Clause 3.1 of the NIT and, in want of such specific credential documents being produced by the Petitioner and the same being produced by the respondent, it was plausible for the tendering authorities to reject the Petitioner’s bid. It is to be seen whether the eligibility criteria stipulated in the NIT were fulfilled and not the volume of experience of the bidder. Also, it is well-settled that the court cannot impose its view on the tendering authority in choosing a successful bidder over others.
The court further observed that the long delay of six months in preferring the writ petition even after the issuance of work order, according to which the successful bidder has already commenced work, is itself an indicator of the Petitioner having approached the court with unclean hands. There was not a single sentence in the writ petition which pleaded any appropriate, let alone sufficient, cause for the delay. Hence, whatever submission was made from the Bar in that regard cannot be accepted as justification for the delay, in the absence of any specific satisfactory explanation in that regard. Therefore, in any event, the writ Petitioner ought not to be granted the reliefs claimed in the writ petition at this belated juncture.
The Hon’ble court dismissed the writ petition on contest without any order as to costs and further held that IA No: CAN 1 of 2020 is also disposed of accordingly.
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