WP(C) 6434/2006 BEFORE HON’BLE JUSTICE B.K. SHARMA JUDGEMENT AND ORDER 1. The challenge in this writ petition is the decision of the official resp ondents towards qualifying the respondent No. 5 in technical bid and opening of the price bid and pursuant thereto the negotiation held with the respondent No. 5 in respect of the tender enquiry. 2. The petitioner is an existing contractor under the respondent Corporatio n in respect of transportation of food grains etc. In response to the notice inv iting tender (NIT) dated 04.10.06 in two bid tendering system (technical bid and price bid) from the intending tenderers for transportation of food grains from Ex-Rly siding/station, Gossaigaon to FCI FSD, Gossaigaon for two years on regula r basis for the estimated value of contract Rs. 1,04,86,000/- (approximate), the petitioner responded to the same by submitting his tender. As per the NIT stipu lation, price bid of only those tenderers who qualified in the technical bid was to be opened. By a corrigendum dated 26.10.06, the eligibility criteria stipul ated in NIT was modified as below: Experienced and bonafide Handling/Transport Contractors with strong financial b ackground having experience of Handling/Transportation with Manufacturing/Handli ng Agency/Government/ PSU/ Public Limited Company dealing in fertilizer/ food gr ains/ cement or similar products during preceding 2 years of transport contracts , the total valued of which is not less than 50% of the estimated value of as st ated below, OR, the tenderer should have executed in the immediately preceding t wo years any single contract, the value of which is not less than 25% of the est imated value &. 3. As per clause-7 (g) of the model tender form, the price bid of only thos e tenderers shall be opened whose technical bids are found acceptable and the ti me and date of opening of price bids shall be fixed and intimated to them. As pe r Appendix-II model tender form for fulfillment of the criteria regarding works experience, the tenderers are to submit experience certificate dully obtained fr om the manufacturing/ handling agencies/ Govt./PSU/ Public Limited Company deali ng in fertilizer/ food grains/ cement or similar products during preceding 2 yea rs of transport contracts. 4. In the meantime, the term of the earlier contract expired on 21.11.06 an d no settlement having been made for ensuing period before the expiry of the sa id term, the respondent Corporation by its letter dated 10.11.06 asked the petit ioner to continue with the transportation work for another three months on tempo rary basis or till placement of the regular contractor, whichever is earlier. A ccording to the petitioner he having continuously executed similar contract work s since last several years and having transported food grains items for the val ue of Rs. 50,40,900/- (approximately) for the year 2004-06, same was more than 2 5% to the estimated value of contract. 5. Pursuant to the submission of tenders by the tenderers including the re spondent No. 5 and the petitioner, same were opened on 14.11.06. However, no scr utiny of the documents could be done upon opening of the technical bid in view o f the involvement of volumes of tender papers. As such for scrutiny of the tend er papers, a committee was constituted. According to the petitioner, no notice f ixing the date and time for scrutiny of the tender papers was served on the peti tioner and the committee scrutinized the tender papers on 21.11.05 and found bo th the petitioner and the respondent No. 5 qualified and accordingly recommended to open the price bids to the successful tenderers in technical bid. Both the petitioner and the respondent No. 5 were informed by communication dated 27.11.0 6 that they have qualified in the technical bids and that the price bid shall be opened on 28.11.06. Upon opening the price bids, it was found that the rate qu oted by the petitioner was Rs. 53 per MT for the entire distance and that of the respondent No 5 was Rs. 44 per MT. However, the authority was of the opinion t hat the rate quoted by both the petitioner and the respondent No. 5 were on the higher side and accordingly the decision was taken to negotiate with the partic ipating tenderers as regards the rate quoted by them. 6. It is the case of the petitioner that he was expecting invitation for ne gotiation from the respondent Corporation. However, inspite of lapse of conside rable period of time when he did not receive any such invitation, he visited the Guwahati Office of the Corporation to enquire the fate of his tender. Upon such enquiry he could come to know that FCI authorities have already issued intimati on to the respondent No. 5 only directing him to appear for negotiation and purs uant to such intimation, the respondent No. 5 had also appeared before the FCI a uthorities on 06.12.06 and upon negotiation, the original rate offered by him, i .e. Rs. 44 per MT, has been reduced to Rs. 43 per MT. Thus, according to the pe titioner, there has been violation of equality clause of giving equal opportunit y to the petitioner by not calling him for negotiation. 7. In paragraph-14 of the writ petition, the petitioner has stated that the respondent Corporation has committed illegality in accommodating the respondent No. 5 inasmuch as the said respondent having not fulfilled the eligibility crit eria of the NIT, he could not have been held to be qualified in the technical b id and consequently his price bid could not have been opened. According to the p etitioner the respondent No. 5 has not fulfilled the requirement regarding 25% work experience during the immediately preceding two years. It has been stated that the respondent No. 5 submitted a certificate dated 14.07.04 only concernin g the works executed by him during the period from 16.05.02 to 15.05.04 and thu s the said certificate does not pertain to the period immediately proceeding two years from the date of submission of tender. According to the petitioner, the t erm immediately preceding 2 years would mean the period from 15.11.04 to 14 .11.06. Thus, according to Appendix-II of the NIT, the respondent No. 5 having f ailed to submit the experience certificate of immediate preceding two years, his technical bid ought to have been rejected. But the authority not only held him to have qualified in the technical bid, but also invited for negotiation after o pening the price bid. 8. The petitioner has stated that the respondent No. 4 with a malafide inte ntion issued the letter dated 16.11.06 to the Area Manager, Kokrajhar asking him to give details of the work value executed by the petitioner and the responden t No. 5 during the period from 13.11.04 to 14.11.06. The Area Manager on receipt of the said letter intimated by his letter dated 18.11.06 that during the perio d in question, the work value of the respondent No. 5 was Rs. 18,23,674/- and th at of the petitioner was Rs. 92,90,188/-. It was also intimated that the respond ent No. 5 executed work on ad hoc basis upto 1812.04 and thereafter he had not b een appointed as transport contractor. Thus it is the case of the petitioner tha t as per the said letter dated 18.11.06, the respondent No. 5 did not have the requisite work experience during the period immediately preceding two years of t he present contract. Taking into account the estimated value of the contract whi ch is Rs. 1,04,86,000/-, 25% of the same will be at Rs. 26,21,500/- and thus it has been contended by the petitioner that from the said letter dated 18.11.06 it is crystal clear that the respondent No. 5 did not have work experience worth o f 25% of the value of the contract. 9. Certain allegations have been made against the respondent No. 5 in respe ct of his existing contract with the respondent Corporation which according to t he petitioner had been continued with the respondent No. 5 on ad hoc basis for t he period from 19.06.04 to 18.12.04. According to the petitioner, the respondent No. 5, during the period committed serious anomalies and irregularities by not placing the trucks in time. Consequently, the FCI authority was compelled to pay demurrage charge to the railway administration. According to the petitioner th e vigilance cell of the FCI has seized the documents pertaining to the ad hoc co ntract with the respondent No. 5. 10. From the tenor of the averments made in the writ petition, what could be gathered is that it is the case of the petitioner that since the respondent No. 5 did not fulfill the requirement of executing works worth Rs. 25% of the value of the contract and no certificate having been annexed, the authorities of the FCI could not have accepted the technical bid offered by the respondent No. 5 and as such all follow up action taken by the authorities with the respondent No . 5 are wholly unwarranted and liable to be interfered with. 11. The respondents, both official as well as private have responded to th e writ petition by filing their affidavits in opposition. It has been contended in the affidavits that the bids were asked from the experienced and bonafide han dling/transport contractors and since the respondent No. 5 is an experienced and bonafide handling/ transport contractor of the respondent Corporation, his cred entials were taken into account and when it was found that he had fulfilled the requisite essentials for execution of the works worth of Rs. 25% of the contract value, his technical bid was executed. As regards the challenge to the negotiat ion, it has been stated that as per the norms laid down, such negotiation can on ly be made with the lowest bidder and cannot be made with all. Since the bid off ered by the respondent No. 5 was the lowest, he alone was invited for negotiatio n. 12. Referring to another item of work in the same NIT dated 04.10.06 estimat ed value of which is Rs. 5,95,07,000/-, it has been stated by the respondents in their affidavit that the respondent No. 5 who had offered his bid for the said work also was not found qualified in technical bid. By making a reference to the said work, it has been contended that had it been intention of the respondent C orporation to favour the respondent No. 5, he would have been considered for th e said work also. 13. The respondents have denied the allegations made regarding opening of th e technical and price bids. They have also indicated the details of the work don e by the respondent No 5 with the FCI for single contract from June, 2004 to Dec ember, 2004 which is of Rs. 1,48,73,962/- Thus, according to the respondents, th e respondent No. 5 has fulfilled the requirement of having executed the work wo rth 25% of the value of the contract. In paragraph-6 of the affidavit, the offic ial respondents have stated that the date of the NIT being 04.10.06, the precedi ng two years would be for the period 05.10.04 to 04.10.06. It has been stated t hat the respondent No. 5, an existing contractor of the FCI, submitted certifica te from the District Manager on 14.07.04 showing execution of the works between the period from 16.05.02 to 15.05.04 which covers the period of two years, but not immediately proceeding two years. 14. According to the respondents, they have perused the relevant records of experience of the respondent No. 5, he being an existing contractor. The letter dated 16.11.06 which has been referred to by the petitioner, has also been ment ioned by the respondents in their affidavit. It has been contended that same did not exactly relate to the period for the purpose of assessing the fulfillment or otherwise of the technical criteria of the respondent No. 5. It has been stat ed that the authority looked into the relevant records and after due scrutiny it found that the respondent No. 5 has performed transportation work with the FCI under ah hoc contract for the period from June, 2004 to December, 2004 which co vers the relevant period and his experience from November, 2004 to December, 200 4 alone is to the extent of Rs. 34,50,805/- in a single contract is by far abo ve the requirement of Rs. 26,21,500/- in a single contract for the preceding tw o years. In paragraph-11 of the affidavit, the official respondents have stated that having regard to the fact that the respondent No. 5 in reality qualified fo r the technical bid having had the requisite work experience, his bid could not have rejected keeping in mind the public interest involved. According to the re spondents, the entire decision making process is fair, transparent and non-arbit rary. 15. The respondent No. 5 in his affidavit has reiterated the stand of the of ficial respondents. It has been stated by the respondent No. 5 in his affidavit that at the relevant column of the tender documents he has clearly indicated hi s experience by mentioning about the value of the two existing transportation wo rks under FCI, i.e. (i) for the period from 19.06.04 to 18.12.04 for a value of Rs. 1,48,73,962/- and (ii) for the period from 16.05.02 to 15.05.04 the value of which is Rs. 2.39 corers. According to him he has required experience to qualif y the technical bid. He had submitted an application on 10.08.06 before the Dist rict Manager, FCI, District Office, Kokrajhar praying for issuance of the perfor mance certificate for the period from 19.06.04 to 18.12.04, but he was intimated that due to demurrage charge liability, some amount was withdrawn from the bill and the matter was to be forwarded to the Regional Office at Guwahati for final decision towards demurrage charge liability. Thus, the office was not in a posi tion to issue the performance certificate until the matter was finalized by the Regional Office. Situated thus, the respondent No. 5 was unable to enclose the e xperience certificate for the single transportation contract work worth Rs. 1,4 8,73,962/- covering the relevant period. According to him, the value of the con tract work only for two months, i.e. November, 2004 and December, 2004, i.e. im mediately preceding two years, as per the NIT and corrigendum of the single tra nsportation contract work, is for a value of Rs. 1,48,73,962/-. It has further been stated that value of the work for the period from 19.06.04 to 18.12.04 is R s. 34,50,805/- which is more than the requirement of Rs. 26,21,500/-, i.e. 25% o f the estimated value of the contract. 16. As regards the allegations that the respondent No. 5 had experience in r espect of only ad hoc contract, it has been contended by the respondent No. 5 that in the NIT there was no mention that the tenderers will have to have experi ence of executing regular single contract. 17. From the tenor of the stand of the official as well as the private respo ndent what could be gathered is that irrespective of the non-enclosure of the ex perience certificate, since the respondent No. 5 in fact, has executed the trans portation works worth more than 25% of the estimated value of the contract, and since the petitioner has executed the said work under FCI, there is no wrong in considering the technical bid of the respondent No. 5. 18. The petitioner has filed an affidavit in reply to the affidavit filed by the official as well private respondent to which the petitioner has also submit ted the rejoinder affidavit in reply. 19. Amidst the aforesaid pleadings and counter pleadings etc., Mr. K.N. Cho udhury, learned Sr. counsel assisted by Mr. R. Dubey, learned counsel for the pe titioner has primarily argued that the respondent No. 5 having failed to furnish the requisite experience certificate, his technical bid ought to have been reje cted. To buttress his argument, Mr. Choudhury, has placed reliance on the decis ions of the Apex Court reiterated in (1979) 3 SCC 489 (Ramana Dayaram Shetty vs. International Airport Authority of Indian and others) and (2001) 2 SCC 451 (W est Bengal State Electricity Board vs. Patel Engineering Company Ltd.). He has a rgued that the respondents cannot develop their case through affidavit in opposi tion and the matter will have to be decided as it stood at the time of filing of the tenders. 20. Mr. P.K. Roy, learned counsel representing the FCI, on the other hand su bmitted that the requirement was not the certificate but the experience worth 25 % to the estimated value of the contract. He has placed reliance on the decision of this Court reported in 2000 (3) GLR 173 (Bibhu Bhushan Choudhury vs. Union o f India and others) Mr. K.H. Choudhury, learned Sr. counsel assisted by Mr. S.K. Muktar, learned counsel representing the respondent No. 5 submitted that there was no wrong in the decision making process of the official respondents and it is an admitted position that the respondent No. 5 has required experience and t hat too with the FCI itself and thus the FCI was within its domain and competenc e to take into account the said experience towards consideration of the case res pondent No. 5. 21. During the course of hearing, the only argument advanced is relating to conclusion of non-submission of the work experience certificate. In this connect ion, learned counsel for the petitioner has referred to tender documents contain ing the clause that the tenderer should have executed a single contract immediat ely proceeding two years, the value of which is not less than 25% of the estima ted value of the contract. Referring to Annexure-E tender documents as per which the tenderer is required to enclose experience certificate, it has been contend ed by the learned counsel for the petitioner that irrespective of the fact as to whether the respondent No. 5 in fact, has the requisite experience, in absence of such certificate enclosed to the tender documents, the respondents could not have considered his tender and the same ought to have rejected. 22. The petitioner himself has admitted in the writ petition in paragraph 1 5 that the respondent No. 5 has executed transportation work total value of Rs. 1,48,73,952/- on ad hoc basis during the period from 19.06.04 to 18.12.04. In t he counter affidavit filed by the respondents, it has been pointed out that in t he aforesaid period the respondent No. 5 has executed works worth Rs. 34,50,805/ - in a single contract from November, 2004 to December, 2004, which is within t he period 05.10.04 to 04.10.06. Thus, the amount of Rs. 34,50,805/- far exceeds the requirement of Rs. 26,21,500/-. This specific plea of the respondents has no t been denied by the petitioner. His only contention is that since the responden t No. 5 failed to annex the work experience certificate, the tender submitted by the respondent No. 5 was defective and ought to have been rejected. 23. The case of Ramana Dayaram Shetty (supra) has been referred to primaril y to contend that the standard and eligibility laid down in the tender notice ca n not be departed from arbitrarily and that such departure from the standard wou ld amount to denial of equality of opportunity to those who felt bound by the s tandard of eligibility and therefore did not submit their tenders. Same is not the case in hand. It is not a case of making any departures from the standard o f eligibility. It is also not the case of accepting the tender of the responden t No. 5 upon deviation being made from the standard of eligibility to the depriv ation of other tenderers. There is no dispute, rather has been admitted by the p etitioner that the respondent No. 5 has the requisite experience, but he failed to annex the experience certificate along with his tender papers. The question is not of a certificate, but is the required experience. When it is an admitted position that the respondent No. 5 has the requisite experience by way of execut ing contract under the same very authority, I am of the considered opinion that merely because the respondent No. 5 could not submit the experience certificate along with the tender documents as the same was not issued to him by the compete nt authority of the FCI, it will not be fatal. 24. In the case of Patel Engineering (supra), it has been held by the Apex C ourt that strict adherence of instruction to bidders is essential and inclusion of mistake in bid documents cannot be permitted to be corrected on the basis of equality. The present case is not a case of making correction to bid documents. The respondent No. 5 clearly indicated in his bid documents that he has requisit e experience but for the reason that the certificate was not issued by the same authority which has issued the NIT in question, same could not be annexed with t he tender documents. The tender issuing authority upon receipt of the tenders go t the work experience verified through its own documents and found that in fact, the respondent No. 5 has the requisite experience. This aspect of the matter ha s been admitted by the petitioner, but only plea raised by him is that the respo ndent No. 5 having not annexed the work experience certificate, his tender oug ht to have been rejected. 25. The decision on which the learned counsel for the respondent Corporation has placed reliance, i.e. Bibhu Bhusan Choudhury (supra), has emphasized that right to choose from one tenderer from others is vested with the authority and unless it is shown that the power has been exercised arbitrarily and for collate ral purpose, the writ Court will be reluctant to interfere with the decision of the authority. It was emphasized that the Court in its dispensation of justice is to keep in mind the public interest and the public benefit. In exercising the discretion, the Court is to make balance between the conflicting interest. In the instant case, what has emerged from the discussion made above is that the a uthority has exercised the discretion in a particular way which in my view can not be said to be arbitrary or discriminatory, more so, when the fact relating t o requisite work experience of the respondent No. 5 has been admitted by the pet itioner himself. The authority duly applied its mind and made its choice which c annot be said to be unreasonable. There is no question of violation of Article 1 4 of the Constitution of India. In R.V. Tower Hamlets London Borough Council, ex . P. Chentix Developments Ltd. reported in (1998) 1 All ER 961, the Court summa rized the principles in the following way: & The court is entitled to investigate the action of the local authority with a view to seeing whether or not they have taken into account matters which they o ught not to have taken into account, or concersely, have refused to take into ac count or neglected to take into account matter which they ought to take into acc ount. Once that question is answered in favour of the local authority it may sti ll be possible to say that although the local authority had kept within the four corners of the matters which they ought to consider, they have nevertheless com e to a conclusion so unreasonable that no reasonable authority could ever have c ome to it. In such a case again I think the court can interfere. The power of th e Court to interfere in each case is not as an appellate authority to override