calcutta high court

Calcutta High Court: In a petition challenging the post-bid submission alterations in tender conditions, a single-judge bench comprising of Sabyasachi Bhattacharyya,* J., found that altering the minimum bid price after bids are submitted is arbitrary and violates the principles of fair competition. The Court set aside the resolution dated 04-09-2023, instructing the respondent authorities to proceed with the tender process based on the original tender document.

Brief Facts

In the instant matter, the petitioner participated in a tender for the supply of cooked diet for ESI Hospital, Uluberia, floated by the respondent authorities. The challenge is against a Resolution dated 04-09-2023 modifying tender conditions after bids were submitted. The major alteration raised in the petition is the amendment specifying that the bids below Rs.88.63p will not be considered valid during financial evaluation.

Parties’ Contentions

The petitioner contended the alteration violates Article 14 of the Constitution of India. The petitioner argued that this change, made after bid submission, favored a specific bidder (respondent 13), is arbitrary, and disrupts fair competition.

Other bidders (private respondent 6 to 12) argued against alterations affecting the minimum bid price, drawing of lots in case of a tie, and the acceptance of zero service charge. The petitioner’s bid, quoting zero service charge, is challenged for non-compliance with tender terms.

The State argued the minimum bid price change is based on Agricultural Marketing Board (AMB) rates and justified it in public interest. The State claimed the petitioner’s bid is suspiciously low, compromising quality, and justifies the amendment for the patients’ interest. The State emphasized Clause 5(iii) of the tender document, suggesting zero service charge was not allowed.

Private respondent 13 argued the scheme began in 2002, with rates revised every three years to maintain food quality. The petitioner’s zero service charge is against tender terms, and service charge is crucial for food quality. Respondent 13 claimed the amendment is justifiable, considering the need for current rates due to the time gap between tender and work order issuance.

Court’s Analysis

  1. The Court acknowledged the legal framework allowing judicial review of tenders under specific circumstances.

  2. The Court criticized the alteration of the minimum bid price after bid submission as arbitrary and against principles of fair competition.

  3. The Court rejected the argument that time elapsed between tender and work order issuance justifies the alteration in price. The Court noted the apparent benefit to respondent 13 from the amendment, questioned the absence of mentioning AMB rates initially, and dismissed the time gap justification.

  4. The Court found the exclusion of zero service charge arbitrary and lacking reasonable basis.

  5. The Court held the impugned resolution solely favored respondent 3, declaring it arbitrary, unreasonable, and tailored to suit specific interests.

Court’s Decision

The Court allowed the writ petition, setting aside the 04-09-2023 resolution. The Court directed the respondent authorities to resume the tender process from the stage post-bid submission based on the original tender document. If necessary, corresponding changes in subsequent dates after bid submission will be duly published by the respondents to address the implications of the present writ petition.

[Saheli Nandi v. Union of India, 2023 SCC OnLine Cal 4953, order dated 12-12-2023]

*Judgment by Justice Sabyasachi Bhattacharyya

Advocates who appeared in this case :

Mr. Satrajit Sinha Roy, Ms. Amrita Maje, Counsel for the Petitioner

Mr. Dhiraj Trivedi, Mr. Trithapati Acharyya, Counsel for Union of India

Mr. Somnath Ganguli, Ms. Priyamvada Singh, Counsel for the State

Mr. Swarup Paul, Mr. Surya Maity, Mr. Guru Saday Dutta, Mr. Anish Roy, Counsel for the Respondent 6-12

Mr. Anubhav Sinha, Counsel for the Respondent 13

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