Robi Boruah vs. North East Frontier Railway And 2 Ors

Held

The Court held that the award of the contract to respondent no. 3 was set aside and quashed. The Court found that the NFR authorities had, by relaxing the requirement of submitting the Authorization Certificate by the stipulated deadline, effectively "re-arranged the goalpost." This action denied a level playing field to the petitioner, who was the sole responsive tenderer, and also disadvantaged those who did not participate due to the stringent Special Clause. The Court emphasized that the condition regarding the Authorization Certificate was an essential eligibility criterion, and its non-compliance on the last date of submission should have led to the rejection of the tender. The relaxation granted in favor of respondent no. 3 was deemed arbitrary, unjust, discriminatory, and violative of Article 14 of the Constitution. The Court rejected the NFR's contention that accepting the L-1 tenderer's bid, despite being non-responsive, was justified by a lower quoted amount, stating that if the responsive tenderer's bid was unreasonable, the proper course would have been to cancel the tender process, not to relax essential conditions. The Court directed the NFR to revisit the tender process initiated by the NIT dated October 7, 2021, and bring it to a logical conclusion within one month. The Court also allowed the existing garbage disposal arrangement to continue for one month to avoid immediate difficulties.

Facts

The petitioner, Sri Robi Boruah, challenged the award of a contract for comprehensive garbage disposal for three years (2021-2024) by the Northeast Frontier Railway (NFR) to respondent no. 3, Biswajit Bora. The NFR issued a Notice Inviting Tender (NIT) on October 7, 2021, with an approximate cost of Rs. 56,07,360/- inclusive of GST. The NIT stipulated minimum eligibility criteria, including technical, financial, and special criteria. Five tenders were received, including the petitioner's and respondent no. 3's. Respondent no. 3 was declared the lowest tenderer (L-1), while the petitioner was L-5. The petitioner alleged that respondent no. 3 and other tenderers did not fulfill the special criteria, specifically requiring an authorization certificate from the Pollution Control Board, Assam, under the Hazardous and Other Wastes (Management & Transboundary Movement) Rules, 2016. The petitioner submitted a representation against the other tenders, but the NFR proceeded to issue a Letter of Acceptance (LoA) to respondent no. 3 on November 13, 2021. The petitioner obtained documents under the RTI Act, revealing that respondent no. 3 obtained the authorization certificate on November 9, 2021, after the tender submission deadline of October 29, 2021.

Key Issues

1. Whether the award of the contract to respondent no. 3, who allegedly failed to meet the Special Criteria stipulated in Clause 1.3 of the NIT and Clause 10.4 of the Tender Document by submitting the required Authorization Certificate by the last date of tender submission, is arbitrary and violative of the tender conditions and Article 14 of the Constitution of India. Petitioner's Arguments: - The petitioner argued that the Techno-Commercial Bid tabulation showed all tenders as responsive to the Special Criteria, but upon inquiry, it was found that only the petitioner submitted the required documents. - The petitioner contended that respondent no. 3 obtained the necessary Pollution Control Board Authorization Certificate only on November 9, 2021, which was after the tender submission deadline of October 29, 2021, making their tender non-responsive. - The petitioner asserted that the NFR violated its own terms and conditions by issuing the LoA to respondent no. 3, despite the deficiencies, and that this constituted a denial of a level playing field. - The petitioner relied on the principle that tendering authorities must adhere strictly to their own norms and procedures. Respondent's Arguments: - The respondent NFR argued that respondent no. 3 emerged as the L-1 tenderer with a substantially lower bid than the petitioner (L-5). - They contended that the petitioner's bid was higher by Rs. 22,12,804.44/-, and accepting the L-1 tenderer's bid was to safeguard the financial interests of the NFR. - The respondent NFR also referred to Clause 6(b) of the Indian Railways General Conditions of Contract, 2020, regarding bid validity, although the court found this clause not applicable to the issue of an invalid tenderer meeting deficiencies.