Dimapur, March 6: The Kohima Bench of the Gauhati High Court has quashed the bid of M/s TTC Infra India for the work “Strengthening of NH-61 (new NH2) from Km 0.00 to Km 6.00 during 2019-20 under NH Division No. 1 Kohima on EPC Mode in the State of Nagaland” and directed the Government of Nagaland represented by the Chief Engineer, Public Works Department (PWD) (National Highways) to consider the bid submitted by M/s KC Angami and Sons Consortium for the work.
Justice Nani Tagia gave the judgment & order on Friday after hearing a Writ Petition (C) filed by M/s KC Angami and Sons Consortium.
The Government of Nagaland had issued national competitive bidding through e-Tendering mode inviting bids from eligible contractors for the project. Apart from various details like length in Km, bid security, estimated cost, tender fee, period of completion; cost of processing fee was also indicated to be Rs10,000. In the NIT, cost of processing fee was indicated as nonrefundable to be deposited by a Demand Draft (DD) from any Nationalized/Scheduled Bank in favour of Chief Engineer, PWD (NH), Kohima, Nagaland payable at Kohima.
In pursuance, M/s KC Angami and Sons Consortium; M/s TTC Infra India along with other bidders submitted their respective bids whose technical bid was eventually evaluated 06.07.2020. In the bid evaluation, the technical bid of M/s KC Angami and Sons Consortium as well as M/s TTC Infra India along with another bid of M/s Vilelie Khamo & Sons were found to be technically responsive and was forwarded and recommended for evaluation of financial bids of the respective bidders.
Consequent upon the recommendation made by the Technical Bid Evaluation Committee on 06.07.2020, the financial bid was opened and evaluated on 22.07.2020, wherein it was found that M/s TTC Infra India was the L-1 bidder, M/s KC Angami and Sons Consortium was L-2 bidder and M/s Vilelie Khamo & Sons was L-3 bidder.
Aggrieved by the impugned recommendation dated 06.07.2020 made by the Technical Evaluation Committee to the bid of M/s TTC Infra India on the ground that it did not submit the processing fee of Rs 10,000 by means of a Demand Draft drawn in a Nationalized/Scheduled Bank along with its bid and therefore, the bid could not have been processed by the Technical Bid Evaluation Committee on 06.07.2020; and, consequently, the financial bid of M/s TTC Infra India also could not have been evaluated by the Financial Bid Evaluation Committee held on 22.07.2020; M/s KC Angami and Sons Consortium filed the WP (C).
Relying on the Minutes of Meeting of Bid Evaluation Committee, the Court said it has been established with certainty and beyond any doubt that the Bid Evaluation Committee in proceeding to evaluate the bid of M/s TTC Infra India have, for reason(s) unknown, chosen to ignore the fact that the bid of M/s TTC Infra India is not accompanied by a cost of processing fee. It observed that the decision making process of the Bid Evaluation Committee in deciding to evaluate the bid of M/s TTC Infra India in the absence of cost of processing fee “acted arbitrarily, un-reasonably and irrationally leading to an infirmity in the decision making process.”
“…this Court has not scrutinized the merit/correctness/soundness of the Technical Bid Evaluation made by the Bid Evaluation Committee in its meeting dated 06.07.2020. Nor has this Court scrutinized the terms and conditions of the invitation to tender as it is in the realm of the contract. What, however, has been scrutinized in the instant case is the “decision making process” of the Bid Evaluation
Committee in evaluating the bid of the respondent No. 2 (M/s TTC Infra India) despite absence of cost of processing fee…,” it said.
The Court’s judgment & order also clarified that the power of judicial review of an administrative decision is not directed against the decision of the administrator, but against the decision making process. “If an administrative authority, while reaching a decision, does not take into account all factors, which are relevant, or take into account a factor, which is wholly irrelevant, such a decision making process cannot be up-held and, consequently, a decision, reached by taking a recourse to such a decision making process cannot be validated in a proceeding under Article 226 of the Constitution of India.”
The Court also observed that the Government of Nagaland, the tender issuing authority, by prescribing an ambiguous term in the NIT/NCB with regards to the cost of processing fee have reserved to itself a discretion, which is unguided and unregulated, capable of being abused by the authority at its whims and caprice.
“That is what appears to have transpired in the instant case when the Bid Evaluation Committee in its meeting held on 06.07.2020 adopted an arbitrary and discriminatory approach as regards the cost of processing fee in respect of respondent No. 2 (M/s TTC Infra India) vis-à-vis the petitioner (M/s KC Angami and Sons Consortium) and the other bidders thereby vitiating the entire decision making process,” it said.
Setting aside the minutes of meeting of the Bid Evaluation Committee dated 06.07.2020 in so far as it recommended the bid of M/s TTC Infra India, the Court also set aside and quashed the financial bid of M/s TTC Infra India.
The order directed the State Government to consider the bid submitted by M/s KC Angami and Sons Consortium for the work in terms of NIT/NCB dated 04.03.2020 issued by the Chief Engineer, PWD (NH), Nagaland, Kohima.
In the case, M/s KC Angami and Sons Consortium was represented by Advocate R. Iralu, Sr. Advocate while the State Government was represented by Kekhriengulie, Additional AG and A Zhimomi represented M/s TTC Infra India.
(Page News Service)