KAMALA AGENCIES Vs. STATE OF ODISHA

JUDGEMENT

(1.) The petitioner, which is a proprietorship firm and registered dealer, whole-seller, supplier and distributor of veterinary drugs/medicines, chemicals, veterinary instruments and equipments, has filed this writ petition seeking to quash the decision taken by opposite parties no. 2 and 3 in the meeting of the tender committee under Annexure-4 dtd. 28/3/2022 and to declare the provisions of clause 5.2, more specifically clauses 5.2.5, 5.2.5.2 and 5.2.6.3 of the bid document, bearing reference No. 01/2021-22/DAHVS/ Veterinary Instruments/ Equipments/ Chemicals/ Reagents/ Media dtd. 29/12/2021 as void ab initio. The petitioner further seeks direction to the opposite parties to consider the financial bids of the eligible bidders fulfilling the pre- qualification criteria of un-amended clause 5.2 and to reject the bids of ineligible bidders, which were otherwise ineligible before amendment of clause 5.2, more specifically clauses 5.2.5, 5.2.5.2 and 5.2.6.3 of the bid documents.

(2.) The factual matrix of the case, in brief, is that opposite party no.2 floated an e-tender call notice on 29/12/2021 under Annexure-2, inviting eligible bidders for "supply of Veterinary Instruments, Equipments, Chemicals, Reagents and Media etc. for the year 2021-22" vide Bid Reference No. 01/2021-22/DAHVS/ Veterinary Instruments/ Equipments/ Chemicals/ Reagents/ Media. The schedule of dates mentioned in the said notice were later on amended vide Corrigendum-II dtd. 25/1/2022 and some of the deadlines were relaxed. The petitioner duly participated in the tender process and submitted its bid within the stipulated time. Clause 5.2 of the tender document prescribed the pre-qualification criteria to participate in the tender process. As per such clause, only the distributors, who have experience in supplying the quoted items, as mentioned in the schedule of requirement, to any Govt. organization/Govt. /Pvt. Hospitals/Other Agencies in India are eligible to submit bid for the tender. Clause 6.13 of the bid document contains the provisions regarding grounds for rejection of the bids. It has been specifically mentioned therein that those bidders, who will not fulfill the requirement of clause 5.2, will be disqualified from participating in the tender process. After opening of the technical bids on 15/2/2022, opposite parties No.2 and 3 called a meeting of the tender committee on 28/3/2022 under the chairmanship of Director, AH&VS and decided to alter the pre-qualification criteria, as contained in clause 5.2 of the bid document, and waive off the requirement of filing the Performance Statement in the Format-T9. Much after the opening of the technical bid, in order to accommodate more number of responsive bidders, as there were limited business opportunities during COVID-19 pandemic, the tender committee decided for alternation of pre- qualification criteria prescribed under clause 5.2. As per the requirement of clause 5.2, the bidders were to submit copies of the purchase orders placed by purchasers for any two financial year during 2017-18, 2018-19, 2019-20 and 2020-21. Due to such decision of the tender committee in waving off the requirement of filing of the Performance Statement in Format-T9, an attempt was made to accommodate some non-serious and ineligible bidders, which were otherwise ineligible as per the provisions of the unamended clause 5.2. Alteration of the provisions of the bid documents, after opening of the technical bid, also runs contrary to clause 6.17 of the bid document, which prescribes the procedure for making amendment in the bid document. The petitioner, having come out successful and eligible in technical bid by fulfilling the stringent pre-qualification criteria as mentioned in clause 5.2 of the bid document, was grossly prejudiced because of participation of ineligible bidders in the financial bid, which were otherwise ineligible as per the provisions of the unamended clause 5.2, more specifically clauses 5.2.5, 5.2.5.2 and 5.2.6.3 of the bid document. Being aggrieved by such action of the authorities, the petitioner has approached this Court by filing the present writ petition.

(3.) Mr. Pitambar Acharya, learned Senior Advocate appearing along with Mr. S.S. Tripathy, learned counsel for the petitioner, vehemently contended that once an advertisement was issued inviting bids with certain terms and conditions, and on that basis the bidders were participated, after opening of the technical bid, the clauses of the such tender document should not have been relaxed. As such, the relaxation of such clauses, after opening of the technical bid, amounts to arbitrary and unreasonable exercise of power by the authorities, which amounts to violation of Articles 14 and 19 (1)(g) of the Constitution of India and runs contrary to the principle prescribed under Article 299 of the Constitution of India.