WP(C) 324/2011 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY The petitioner, who submitted the tender pursuant to the Notice Inviting Tender (NIT) dated 20th November, 2010 for procurement of 35086 or more ladies bicycles fully fitted with all required accessories, by the present petition has challen ged the order of settlement dated 10th January, 2011 issued by the Director of E lementary Education, Assam placing order for supply of 35086 ladies bicycles in favour of the respondent No.3 @ Rs.2570/-, basically on 2 (two) grounds, namely, the NIT being the national competitive bid, reasonable time for submission of t he bids ought to have been given and the terms and conditions stipulated in unde r Clause-5(6) of Section I as well as in Clause 19.5 of the NIT requiring intima ting the bidders qualified in the technical bids about the date of opening of th e commercial bids either through fax or by letter, has not been done. I have heard Mr. GN Sahewalla, learned Sr. Counsel for the petitioner, Mr. MK Ch oudhury, learned Sr. Standing Counsel, Education Department appearing for the re spondent Nos.1 to 2 and Mr. UK Nair, learned counsel appearing for the responden t No.3. Mr. Sahewalla, learned Sr. Counsel appearing for the petitioner referring to Cla use-5(6) of Section I of the NIT as well as Clause-19.5 thereof has submitted th at though it was the requirement to intimate the date of opening of the commerci al bids to the bidders, who are found to be responsive to the technical bids, th e commercial bids were opened on 28th December, 2010 without any intimation to t he writ petitioner, who submitted the tender pursuant to the said NIT, which lea ds to the possibility of the manipulation of the records by certain officials fo r the benefit of the respondent No.3. It has also been submitted by Mr. Sahewal la, learned Sr. Counsel for the petitioner that since such a Clause has been inc orporated in the NIT to avoid the possibility of any manipulation, which is also the requirement of the CVC guideline requiring opening of the commercial bid in presence of the parties, who submitted the tenders, non intimation of the date of opening of the commercial bid has vitiated the entire process and as such, th e order of settlement made in favour of the respondent No.3 needs to be interfer ed with. The learned Sr. Counsel for the petitioner further submits that the re spondent authorities may be directed to initiate fresh process by adhering to th e terms and conditions of the NIT as well as the CVC guideline. Mr. Choudhury, learned Sr. Standing Counsel, Education Department appearing for the respondent Nos.1 and 2, on the other hand, referring to Clause-5(6) of Secti on I as well as Clause-19.5 of the NIT dated 20th November, 2010 has submitted t hat it is not the mandatory requirement that the bidders, who are responsive to the technical bids, must always be informed about the date of opening of the com mercial bid and that such commercial bids are to be opened only in presence of t he bidders or their representatives. It has also been submitted that in any cas e there is no allegation in the writ petition filed by the petitioner or even in the averments incorporated in the writ petition by way of amendment that the of fer made by the respondent No.3 has any point of time been manipulated, so as to give the benefit to the said respondent. The learned Sr. Counsel further submit s that a Committee in fact consisting of 6 (six) Officers of the Government of A ssam was constituted for the purpose of opening the technical bids as well as th e commercial bids and the commercial bids were opened in presence of 5 (five) me mbers of the said Committee and, therefore, in the absence of any allegation of malafide, the petitioner’s contention that the entire process has been vitiated because of not adhering to the conditions stipulated in Clause-5(6) of Section I and Clause-19.5 of the NIT is not acceptable. Mr. Nair, learned counsel appearing for the respondent No.3 supporting the submi ssion made by the learned Sr. Standing Counsel, Education Department appearing f or the respondent Nos.1 and 2, has submitted that under Clause-19.5 the purchase rs at its discretion may call the responsive bidders for price read out and as s uch, it is not a must that the responsive bidders must be informed about the dat e of opening of the commercial bid. The learned counsel has also submitted that there is no allegation of any manipulation of record or malifide against the me mbers of the Committee constituted for the purpose and as such, the decision tak en by the authority in awarding the contract in favour of the respondent No.3, w hose offer was admittedly lower than the offer of the petitioner may not be inte rfered with. I have considered the submissions of the learned counsel for the parties and als o perused the pleadings as well as the records produced by the learned Standing Counsel, Education Department. As noticed above, the NIT was issued by the Director of Elementary Education, As sam on 20th November, 2010 inviting bids for supply of 35086 or more numbers of ladies bicycles fully fitted with all required accessories. 4 (four) tenders in cluding the petitioner and the respondent No.3 submitted their bids. All the 4 (four) bidders were found to be responsive to the technical bids and thereafter, their commercial bids were opened on 28th December, 2010. It is an admitted po sition of fact that neither the petitioner nor the respondent No.3 or other bidd ers were informed by the purchaser about the date fixed for opening of the comme rcial bids and hence, none of the bidders were present when such commercial bids were opened. It also appears from the record that while the petitioner offered Rs.2577/- per bicycle, the respondent No.3 offered Rs.2570/- per bicycle. Clause-5(6) of Section I of the NIT provides that the date and time of opening o f the commercial bids will be intimated to the qualified bidders by the purchase r on the day of opening of the technical bid or on any subsequent day either thr ough fax or letter. Clause-19.5 stipulates that the commercial bids would be ope ned after the evaluation of the technical bids at a time and place to be notifie d (as explained in Section 1) and the purchasers at its discretion may call the responsive bidders for price read out. It also provides that no bid shall be re jected at bid opening except for late bids, which shall be returned unopened pur suant to ITB Clause-17. The Commissioner and Secretary to the Government of Assam, Education (Elementary ) Department, with a view to procure the aforesaid quantity of bicycles constitu ted a purchase Committee consisting of 6 (six) officials with the Director of El ementary Education as the Chairman. The Committee having found that all the bid ders are responsive to the technical bids, their commercial bids, which were sub mitted in sealed covers, were opened by the Committee when 5 (five) members were present, on 28th December, 2010. The records reveal that all the 5 (five) memb ers present on 28th December, 2010 put their signatures in each of the tender pa pers submitted by each of the tenderers. There is no allegation of malafide aga inst any of the members of the purchase Committee. There is also no allegation of manipulation of the record for the benefit of the respondent No.3 in the writ petition. In the absence of any allegation of malafide or manipulation of reco rd, even if it is taken that the bidders are required to be intimated about the date of opening of the commercial bid, it would not render the decision making p rocess and the ultimate decision of the purchase Committee relating to the selec tion of bidders invalid, when the respondent No.3’s offer was less than the offe r made by the petitioners. The first ground of challenge, i.e. non giving of sufficient time for filing ten der, is not available to the petitioner as they have submitted the tender and ne ver complained about the same. That being the position, I do not find any merit in the writ petition and hence it is dismissed. No costs.