WP(C) 4057/2010 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY JUDGMENT AND ORDER 1. The subject matter of challenge in the present writ petition is the settlement of the work of manufacturing, supplying of 2,16,512 CUM Machine C rushed Ballast 50 mm size Ballast from Pakur Quarry and loading into Railway wag on/hopper under the jurisdiction of Sr. DEN/C/ KIR, LMG & TSK in favour of the r espondent No.8. 2. I have heard Mr. S.S.Dey, learned counsel for the petitioner and Mr. U.K.Nair, learned Standing Counsel, Railways. Heard also Mr. R.Hussain, learned counsel appearing on behalf of the respondent No.8. 3. The notice of motion was issued on 23.7.2010. Having regard to the urgency expressed, dasti service of notice on the respondent No.8 was permit ted. 4. The learned Standing Counsel, Railways has produced the relevant records and the aforementioned respondent also has entered appearance through i ts counsel. As desired by the learned counsel for the parties, this writ petiti on was thus heard and is being disposed of at the motion stage. 5. Briefly stated the facts considered relevant for the disposal of the writ petition are that in response to a notice inviting tender (for short ’NIT’) issued by the Railways for execution of the above mentioned work, the pet itioner, respondent No.8 and others furnished their bids. The petitioner submitt ed its tender on 8.6.10 claiming that it was complete in all respects and in con formity with the stipulations contained in the ’NIT’. The tenders were opened on 10.6.10. The petitioner having came to learn that two documents i.e ’Test Repo rt’ and ’Payment Receipt’ during the last three financial years, figuring at Sl.Nos. 7 and 8 respectively in its list of documents as mentioned in its letter dated 8.6.10 accompanying the tender were found missing, it on 22.6.10 submitte d the same with the Principal Chief Engineer, N.F.Railway, Maligaon. As the set tlement of the work has been made in favour of the respondent No.8 though accord ing to the petitioner its rate was at par with it (respondent No.8) judicial in tervention has been sought for redress. The petitioner’s claim as well is that it is technically better equipped and acknowledged to execute the work. 6. Mr. S.S.Dey, has argued that though in the face of submission of all the relevant documents as enlisted in the petitioner’s letter dated 8.6.10 along with its tender, the non-availability of two documents therefrom is unus ual and cannot be innocuous, it (petitioner) having re-submitted the same befor e the final selection the allotment of the work in favour of the respondent No. 8, by disregarding the same is per se illegal and arbitrary. According to Mr. D ey, in any view of the matter, non submission of the documents at Sl.Nos. 7 and 8 of the petitioner’s letter dated 8.6.10 could not have entailed rejection of i ts tender summarily, in terms of the stipulations contained in the ’NIT’. As the documents had been re-submitted on 22.6.10 before the final decision was taken on 5.7.10, the concerned respondent authority ought to have taken note thereof. 7. Mr. Nair, in reply has urged more particularly with reference to Clause 3.1 of the conditions for submission of tender that as the petitioner h ad failed to submit the test report as referred to therein along with its tender , the same was summarily rejected as warranted . He has further contended that i n terms of Clause 15(2) of the Eligibility Criteria, the certificate evidencing the contract amount received by a tenderer during the last three financial year s and in the current financial year was necessary to be submitted for judging th e technical eligibility and financial capability. While admitting that the rate quoted by the petitioner was the same as by the respondent No.8, the learned S tanding counsel , insisted that at no point of time did the petitioner assail wi th the Railways that the documents at Sl.Nos. 7 and 8 of his letter dated 8.6 .10 though submitted along with the tender had gone missing. According to Mr. N air, the respondent No.8 has started making the supply and any interference wit h the impugned settlement would result in impediment thereto. 8. While endorsing the above, Mr. R. Hussain, learned counsel for the respondent No.8 has reiterated that the decision to reject the petitioner’s te nder is unassailable as the same was incomplete as well as incompatible with t he terms and conditions of the NIT. He submitted on instructions that the supply has started for which the first running bill has also been drawn up. He also co ntended that any interference by this Court would not only be a set back to the project but also result in irreparable loss and prejudice to this respondent. 9. Mr. Dey has replied by contending that as in terms of the NIT, a tender not accompanied by the requisite earnest money in proper form, is only liable to be summarily rejected, the respondent authorities acted arbitrarily in leaving out of consideration the two documents re-submitted by the petitioner and available at the time of the final decision. 10. The pleaded facts available and the documents have been duly co nsidered. To better appreciate the argument the following clauses of the NIT de serve to be extracted: Eligibility Criteria 1. The tenderer must have completed at least one similar nature of single work for a minimum of value of 35% of advertised tender value of work in the la st three financial years (i.e. current year and three previous financial year in Govt/Semi Govt. Organisation and PSUs). 2. Total contract amount received during the last three financial years and in the current financial year should be minimum of 150% of advertised tender value of work. The certificates produced by the tenderer(s) to this effect should be attested certificates from the employer/client or audited balance sheet duly cer tified by chartered accountant etc. For judging the technical eligibility and fi nancial capability only those works which had been executed for Govt/Semi Govt. Organizations or PSUs shall be considered and the tenderer will submit the certi ficate to this effect from the officer concerned duly signed under the official seal. It should be noted that credentials for works executed for private organiz ations shall not be considered. Certificates (if not submitted in original) shou ld be duly attested by Gazetted Officer . & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & (iii) The tenderer shall not stipulate any special condition with his tender b id. For this purpose, the procedure prescribed under Part-1 Section (b) of the t ender document Information and Instructions for Tenderers shall be adopted. Te nder(s) received not conforming with the prescribed procedure are liable to be s ummarily rejected . & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & 9. The tenderer shall strictly adhere to Part II, III and IV of the tende r documents, which together constitute the prescribed form for the tender. Tende rs not submitted in this form are likely to be rejected. The nomenclature and th e para numbers used in the tender document shall only be used for cross referenc e . & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & It may be noted that submission of complete and accurate information i s the responsibility of the tenderer. The Tender Inviting Authority reserves the right to verify, in any manner at its sole discretion, the accuracy of the info rmation furnished by the tenderer and if it is revealed that the Tender had subm itted incorrect information to derive undue benefits, his Tender may be summaril y rejected on these grounds. The Tenderers should ensure that the information given in this part of t he tender clearly establishes his capacity to successfully execute the tender wo rk. It may be noted that the Tender Inviting Authority does not have any obligat ion to seek clarification on the information furnished or the information furnis hed is incomplete/inadequate to establish the tender’s capacity, the tender is l ikely to be rejected on these grounds. No plea made by the tenderer on this acco unt by submitting additional information, etc, shall be entertained by the Tende r Inviting Authority. In case of acceptance of the tender submitted against stan ding Earnest money (L.S. deposit) the tenderer should deposit the required initi al security money equivalent to earnest money within 10 days. The tenderer shoul d submit their evidential along with this tender document consisting of followin g documents duly attested by Gazetted Officer, if not submitted in original. I. Certificate(s) of previous experiences of similar nature job. II. Certificate regarding financial capacity from bank concerned. III. List of tools & plants . & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & CONDITIONS FOR SUBMISSION OF TENDER 3.1 Each tenderer at the time of tendering shall submit the test repost of Im pact Value, Abrasion Value, Water Absorption Value from approved laboratories . 11. A scrutiny of the tender of the petitioner as available in the o riginal records produced in course of hearing by the Railways reveals that the aforementioned two documents i.e. Sl. Nos. 7 and 8 of its letter dated 8.6.10 di d not accompany it. The Tender Committee meeting held on 5.7.10 while undertak ing the exercise of assessment of the comparative suitability of the tenders ha d noticed that the petitioner had not submitted the aforementioned two documents along with its tender and that it sought to furnish the same later on. It was of the opinion more, particularly with reference to the clause 3.1 as quoted her ein above, that post tender correspondence was not entertainable and that theref ore, having regard to all relevant aspects, the respondent No.8 was the most sui table tenderer. It, therefore, recommend to award the settlement to it. The r ecommendation of the Tender Committee having been accepted, the impugned order was issued. 12. A close perusal of the office records pertaining to the settleme nt does not disclose any foul play vis a vis the two documents said to have been submitted by the petitioner along with its tender. On the other hand, a scruti ny of the tender discloses that it was not accompanied by the said two documents ’re-submitted’ as claimed by the petitioner later on . Though these two documen ts were available on record at the time of the final selection as is disclosed b y the proceeding of the Tender Committee , it however disregarded the same in fa ce of clause 3.1 of the Tender Document in particular. Though the language used in the various other clauses of the ’NIT extracted herein above, admit of som e flexibility or use of discretion as pleaded on behalf of the petitioner, the p roclaimed consequence of summary rejection of tenders not in conformity with the prescribed procedure enumerated hereinabove is significant. As the requirement of submission of Test Report along with the tender as prescribed in clause 3.1 per appears to be obligatory as an inviolable condition for submission of a val id tender, the decision of the Tender Committee to reject the petitioner’s tende r cannot be impeached as illegal or arbitrary. 13. The facts and circumstances, do not demonstrate any, improper o r arbitrary exercise of discretion by the respondent authorities. It is no longe r res integra that in a process of the kind involved some free play in the join ts is permissible and unless the decision making exercise is vitiated by any ap parent illegality or unfair, procedure or malafide, it ought not to be lightly i nterfered with in exercise of power of judicial review of this Court under Artic le 226 of the Constitution of India. In the present fact situation, neither such vitiating factor is discernible nor is the impugned settlement detrimental to t he public interest. 14. The writ petition, therefore, lacks in merit and is rejected. No costs.