Debangsu Basak - (1.) A disgruntled tenderer in a tender process assails the tender process on the ground that, the authorities are seeking to award the tender in respect of a person who was found to be technically disqualified at the first attempt in the same tender process.
(2.) Learned senior advocate appearing for the petitioners submits that, the authorities undertook three tender processes on the subject matter. In the first tender process, the petitioner and the respondent no.6 participated. The respondent no.6 was found to be technically disqualified. The second tender process was not implemented. The authorities undertook the third tender process. In the third tender process the same eligibility criteria as that of the first tender process were laid down. He draws the attention of the Court to the eligibility criteria in the first tender process. He draws the attention of the Court to the technical evaluation made in respect of the respondent no.6 in the first tender process. He submits that, the first and the third tender processes required a tenderer to have experience of handling 50,000 (fifty thousand) vehicles per day for a period of four years. He submits that, the eligibility clauses in the third tender process should be read in a manner such that, the period of four years prescribed in first sub-clause of the eligibility criteria applies in respect of the second and the third sub-clauses also. He submits that, the respondent no.6 being found not to have handled 50,000 (fifty thousand) vehicles per day in the first tender process which was done in January 2019, there was no material before the authorities to come to a finding that, the respondent no.6 has the requisite technical qualification in the third tender process, which lays down the same eligibility criteria. He draws the attention of the Court to the timeline fixed under the tender process. He submits that, the petitioner received a message through the Short Message Service (SMS) from the authorities informing the petitioners that, the authorities would be opening the tender documents at a given point of time. The SMS was received ten minutes before such opening. The authorities did the same in order to prevent the petitioner from participating in the evaluation process at the technical bid stage. He draws the attention of the Court to the guidelines issued by the Central Vigilance Commission (in short 'CVC') and submits that, the CVC requires the authorities to evaluate the tender documents in presence of the tenderers in order to maintain transparency. Violation of the CVC guidelines vitiates the tender process. In support of such contentions, he relies upon (Haffkine Bio-pharmaceutical Corpn. Ltd. v. Nirlac Chemicals & Ors., 2018 12 SCC 790). He submits that, therefore, the entire tender process stands vitiated. The authorities should be restrained from issuing any work order in favour of the respondent no.6 under the tender process. The respondent no.6 not being technically disqualified, and the petitioners being the second highest bidder should be awarded the tender.
(3.) Learned Additional Advocate General appearing for the State, on the basis of written instructions, submits that, the authorities are at liberty to interpret the terms and conditions of the tender process and apply such interpretation for all the tenderers. What is required is that, the interpretation should be something, which is available on the basis of the published terms and conditions. If, the interpretation given to the terms and conditions by the authorities is plausible and that, at the same is applied uniformly for all tenderers then, the Writ Court should be slow in interfering with the same. In the facts of the present case, he submits that, the eligibility criteria prescribe two periods of time for the tenderers to qualify. The first sub-clause lays down four years period while the fourth sub-clause requires three years' compliance. The second and third sub-clauses do not specify any time. He submits that, the individual sub-clauses should be taken and understood in the context of the tender. He submits that, handling 50,000 (fifty thousand) vehicles per day is a requirement under the tender process. What the authorities wanted is that, a tenderer should have handled at least 50,000 (fifty thousand) vehicles on a given date. Handling of 50,000 (fifty thousand) vehicles over a period of four years or three years as specified in the first and fourth sub-clauses cannot be inferred. So far as the third sub-clause of the eligibility is concerned, in any event, the authorities being at liberty to adopt an interpretation of the existing clauses, and the authorities having done so and having applied the same uniformly, a Writ Court should not intervene.;