M/S Niharika Enterprises vs. The State Of Assam And 8 Ors
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The petitioner, M/s Niharika Enterprises, a sole proprietorship firm dealing in stationery supplies, challenged its disqualification in a tender process initiated by the Fakhruddin Ali Ahmed Medical College & Hospital, Barpeta, for the financial years 2021-23. The tender notice was issued on September 21, 2021. The petitioner's bid was rejected via an email dated October 22, 2021, attaching a letter dated October 21, 2021. The grounds for rejection included the absence of the petitioner's representative at bid opening, non-submission of a Firm Registration Certificate, and incomplete signatures on tender documents. The petitioner argued that these grounds were superficial and that it had successfully participated in a previous similar tender with the same authority using identical documents, where it was found technically qualified and awarded the contract.
Held
The Court held that rejecting the petitioner's bid based on the absence of its representative at bid opening was not a valid ground, as any prejudice would be suffered by the petitioner and not the authorities. Regarding the Firm Registration Certificate, the Court found that insisting on it was inconsequential, as the petitioner's antecedents were known to the authorities, evidenced by its Gauhati Municipal Corporation license, GST registration, and prior successful participation in a similar tender with the same authority using the same documents. The Court considered this a curable defect. On the issue of signatures, the Court observed that signatures were missing only on copies of personal certificates, not on the main tender documents. This was deemed a trivial and curable defect. The Court also noted that the petitioner's quoted prices were lower, indicating public interest. Therefore, the rejection of the petitioner's bid was deemed unjustified and unsustainable in law. The Court set aside the rejection letter and directed the respondent authorities to accept the petitioner's tender and consider it as an eligible and successful bidder for the pool of contractors.
Key Issues
1. Whether the absence of the petitioner's representative at the time of bid opening constitutes a valid ground for disqualification, considering it does not prejudice the authorities (Section 73 of the CGST Act, 2017, implicitly relevant to tender conditions and fairness). 2. Whether the non-submission of a Firm Registration Certificate is a fatal defect for a sole proprietorship firm, given its existing Gauhati Municipal Corporation license and GST registration, and its prior successful participation in a similar tender with the same authority using the same set of documents (Section 73 of the CGST Act, 2017, implicitly relevant). 3. Whether the failure to sign all pages of the tender documents, specifically only on copies of personal certificates, is a curable defect that should not lead to disqualification, especially when the petitioner's bid offered lower prices (Section 73 of the CGST Act, 2017, implicitly relevant). Petitioner's arguments: Absence of representative is not a ground for rejection as it only affects the bidder. A Firm Registration Certificate is not applicable to a sole proprietorship, evidenced by its existing licenses and prior successful tender participation. Missing signatures on personal certificates are trivial and curable defects, especially considering the lower prices quoted. Reliance was placed on GJ Fernandez Vs. State of Karnataka & Ors. and Poddar Steel Corporation Vs. Ganesh Engineering Works and Ors. regarding curable vs. incurable defects. Revenue/State's arguments: The grounds for rejection are relevant and there is no mala fide. The minutes of the bid opening do not show the absence of the representative as the reason for rejection. The principal grounds were non-submission of the Firm Registration Certificate and failure to sign all tender papers. It was not disputed that the petitioner had a trade license and GST registration, and had been awarded similar works previously.
Sections Cited
Section 73
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Cause title — parties, addresses and appearances
ORDER 07.12.2022 Heard Shri I. Chowdhury, learned Senior Counsel assisted by Shri S. Biswakarma, learned counsel for the petitioner. Also heard Shri DP Borah, learned Standing Counsel, Health & Family Welfare Department.
Considering the nature of the dispute and the tenure of the contract in Page No.# 3/7 question, this writ petition is taken up for disposal at the admission stage.
The subject matter is disqualification of the petitioner by the authorities in a tender process.
The fact as projected in a nutshell is that the petitioner is a sole proprietorship firm which is involved in the business of supply of stationery and allied items. The petitioner has claimed of being entrusted with supply of such items by the respondent herein namely, the authorities in Fakhruddin Ali Ahmed Medical College & Hospital, Barpeta (hereinafter the authorities).
On 21.09.2021, the authorities had issued a Notice Inviting Tender (NIT) for supply of stationery and allied items for the financial years 2021-23. The petitioner being eligible in all respect and having entrusted with similar supply on earlier occasions submitted its bid, the last date of which was fixed on 30.09.2021 and the bid was to be opened at 12:30 PM on the same day. The petitioner claims that there was delay in opening the bids as a result of which its representative could not be physically present at that time. Since the outcome of the exercise was not known to the petitioner, communications were exchanged and finally vide an e-mail dated 22.10.2021, the petitioner was informed that the technical bid was rejected and in the said e-mail impugned letter dated 21.10.2021 was attached. The learned Senior Counsel submits that in a previous occasion with regard to NIT issued by the same authority on 10.06.2021 which was for “Supply of Liveries/Bedding & Clothing items at Fakhruddin Ali Ahmed College and Hospital, Barpeta for the financial year 2021-23”, the eligibility conditions were similar to the eligibility condition of the present NIT and moreover, similar set of documents were required to be submitted by the bidders. In the said tender process also, the petitioner had participated by submitting the same set of documents as in the NIT in question herein and in such NIT, the petitioner was found technically qualified and awarded the work vide order dated 12.08.2021 and the petitioner again stated that he had executed as many as seven supply works in the Page No.# 4/7 same Hospital in the current financial year itself.
The learned Senior Counsel for the petitioner by referring to the said rejection letter has submitted that the letter makes it apparent that the rejection was on three broad grounds. The first ground being absence of the representative of the petitioner at the time of opening of the bids. Secondly, it was found that the petitioner had not submitted the Firm Registration Certificate and thirdly, it was indicated that all the pages of the tender documents were not having the signature of the petitioner.
Shri Chowdhury, learned Senior Counsel for the petitioner has submitted that absence of the representative of the petitioner on the date of opening of the tender cannot be a ground at all for rejection inasmuch as, prejudice, if any, would only be suffered only by the party and not by the authorities because of such absence. Regarding the second ground relating to non-submission of the Firm Registration Certificate, the contention of the petitioner is that it is a sole proprietorship firm which has a license issued by the authorities and in this regard the license issued by the Gauhati Municipal Corporation on 16.07.2015 as well as the GST registration on 25.06.2017 have been referred to. As regards the third ground, it is submitted that though the allegation is of not containing the signatures in the pages of the tender document, on a careful scrutiny it was found that it is only the copies of the Pan Card and the other certificates of the petitioner which were not containing the signature of the petitioner. However, the learned Senior Counsel emphatically submits that all the papers of the tender document otherwise were duly signed.
The learned Senior Counsel for the petitioner accordingly submits that holding the petitioner to be non-responsive and rejecting its bid on the aforesaid grounds are superficial and trivial in nature whereby grave prejudice have been caused which requires a judicial intervention.
Shri DP Borah, learned Standing Counsel, Health and Family Welfare Department representing the respondents by referring to the affidavit-in-opposition
Page No.# 5/7 dated 06.01.2022 has submitted that the grounds of rejection are relevant grounds and there is no mala fide in the exercise carried out. He submits that the primary allegation is that the tenders were not opened on the scheduled date and time is incorrect and further the minutes would show that the absence of the representative of the petitioner was not the ground for cancellation of the bid of the petitioner. He further submits that the principal grounds were non submission of the Firm Registration Certificate as well as failure to sign each and every papers of the tender document. With regard to the requirement of the Firm Registration Certificate, it is however not in dispute that the petitioner firm was duly issued a license by the Gauhati Municipal Corporation and is also having a GST registration. It is also not disputed that the petitioner was also offered a number of similar works for supply of stationery and allied items by the same authorities with same antecedents, which have been mentioned above.
Shri Chowdhury, learned Senior Counsel has placed reliance upon the cases of GJ Fernandez Vs. State of Karnataka & Ors. reported in (1990) 2 SCC 488 and writ petition, the relevant part of which is extracted hereinbelow:
“12. That the petitioner humbly begs to state that the petitioner having executed as many as 7 supply works in the Fakhruddin Ali Ahmed Medical
Page No.# 6/7 College & Hospital, Barpeta in the current financial year itself, the respondent authorities are well aware of the credentials of the petitioner. The respondent authorities are also aware of the fact that the petitioner is a proprietorship firm and that it is not required to be registered under any authority. In fact, in another NIT issued by the respondent no. 3, on 10.06.2021 for “Supply of Liveries/ Bedding & Clothing items at Fakhruddin Ali Ahmed Medical College & Hospital, Barpeta for the financial year 2021-23”, the eligibility conditions were similar to the eligibility conditions of the present NIT and moreover, similar set of documents were required to be submitted by the bidders. In the said tender process also the petitioner had participated by submitted the same set of documents as in the NIT in question herein and in such NIT the petitioner having been found technically qualified was awarded the work vide order dated 12.08.2021…” In reply thereto, there is no specific denial and rather it is admitted that in respect of the said NIT, the petitioner had submitted trade license (up-to-date) instead of Firm Registration Certificate along with other documents.
While examining the next ground regarding the signature in all the pages of the tender documents, it is apparent that the signatures were not there only on the personal certificates of the petitioner firm. It is not in dispute that the pages of the tender document were otherwise duly signed. The aforesaid situation would be one where self attestation of the certificate of the petitioner is missing. Such defect, at best can be termed as a trivial one which is curable in nature and rejecting the bid of the petitioner on the said ground would be unjustified. The aforesaid view of this Court is taken by another relevant fact that in the affidavit-in-reply filed on 31.01.2022, more particularly in paragraph 11, the prices offered by the petitioner for the items involved have been brought on record by way of a chart. A bare perusal of the same would demonstrate that the prices quoted by the petitioner are less in the items which have been indicated and therefore, the question of public interest would
Page No.# 7/7 also come.
At this stage, Shri Chowdhury, learned Senior Counsel for the petitioner submits that by the present tender process, a pool of contractors is in fact sought to be created who would be required to supply the stationery and allied items to the said College and Hospital for the period 2021-23 and at different period, different items would be required to be supplied. The term of completion is 31.03.2023. 14. Having due regard the to the law laid down and also keeping into consideration the public interest involved, this Court is of the considered opinion that the rejection of the petitioner which has been communicated vide the letter dated 21.10.2022 is unjustified and is held to be unsustainable in law and accordingly set aside. Consequently, the respondent authorities are directed to accept the tender of the petitioner and regard the same as one of the eligible and successful bidders to be a part of the pool for the NIT in question.
The writ petition accordingly stands disposed of.
Interim order passed earlier stands vacated. JUDGE Comparing Assistant
Reproduced from the public record of the Gauhati High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.