Page No.# 1/9 GAHC040015292023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : WA/35/2023 M/s Popu Enterprises having its registered Office at A Sector, Naharlagun, P.O and P.S Naharlagun, District Papum pare, Arunachal Pradesh, Pin 791110, represented by its Proprietor Shri Pawan Bagang, S/o Late Tayu Bagang, R/o Naharlagun, District Papum Pare, Arunachal Pradesh, Pin 791110, Mobile No. 9436048949 VERSUS M/s Khenewa Group and 4 Ors Having its Office at Waii Complex, Abotani Colony, Itanagar, Arunachal Pradesh 791110. Represented by its Proprietor Shri Rumak Jomoh, S/o Shri Sam Jomoh, near Rajdhani Petrol Pump, A Sector, Naharlagun, Papumpare District, Arunachal Pradesh, PO/PS Naharlagun, Arunachal Pradesh. Mob. No. 9402915867 2:THE STATE OF AP Age: 0 Occupation : represented by the Secretary Women and Children Development Department Govt. of Arunachal Pradesh P.O and P.S Itanagar Pin 791111 3:The Director Age: 0 Occupation : Women and Children Development Department Govt. of Arunachal Pradesh P.O and P.S Itanagar Pin 791111 4:The Joint Director Age: 0 Occupation : Page No.# 2/9 Women and Children Development Department Govt. of Arunachal Pradesh P.O and P.S Itanagar Pin 791111 5:The Chairperson Age: 0 Occupation : Tender Selection Committee C/o Director Women and Children Development Department Govt. of Arunachal Pradesh P.O and P.S Itanagar Pin 79111 Advocate for the Petitioner : Parswajyoti Das Nair, D Ado,Sandeepjoy Biswakarma,A Chetry,G Alam Advocate for the Respondent : GA (AP), D Doley,Joram Sanjay,Khyoda Moses,Hage Lampu BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY HONOURABLE MR. JUSTICE BUDI HABUNG ORDER 19.02.2025 (A.D. Choudhury, J) 1. Heard Mr. S. Biswakarma, learned counsel for the appellant. Also heard Mr. H. Lampu, learned counsel for the respondent No. 1, and Mr. N. Ratan, learned Additional Advocate General, State of Arunachal Pradesh, representing the State respondents. 2. The present intra-Court appeal is directed against the order dated 08.08.2023 passed in WP(C)/255(AP)/2023 by the learned Single Judge. 3. The aforesaid writ petition was preferred by the respondent No. 1, herein, assailing a recommendation of the Tender Evaluation Committee dated 06.04.2023, whereby, re-tender was recommended to the authorities/employer Page No.# 3/9 citing Rule 144 and 173(xix) of the General Financial Rule, 2017 (hereinafter referred to as GFR, 2017), inasmuch as it was the conclusion of the Tender Evaluation Committee that there is only single bidder. 4. The further grievance raised in the aforesaid writ petition was an order dated 26.04.2023, issued by the Secretary, Women and Child Development Department, Government of Arunachal Pradesh, whereby, recommendation of the Tender Evaluation Committee dated 06.04.2023 for re-tender was accepted. 5. The State respondent filed an affidavit in the writ petition and took a specific stand that the GFR, 2017 is applicable in the State of Arunachal Pradesh and therefore, they have acted in terms of Rule 144 of GFR, 2017. 6. However, during the course of hearing of the writ petition, Mr. R. Ratan, the learned Additional Advocate General, State of Arunachal Pradesh, who was representing the State respondents consented that the decisions impugned may be interfered with and matter may be remanded back to the State to take a decision after evaluation of the Financial Bid as required under Rule 173 (XX)(c) of GFR, 2017. Accordingly, the learned Single Judge passed the order under challenge by setting aside the order dated 06.04.2023 and permitting the State to evaluate financial bid. 7. Mr. Biswakarma, learned counsel for the appellant argues that a writ court can interfere with the decision to cancellation of a tender when the cancellation is arbitrary, mala fide, or if there is clear misuse of statutory powers by the tendering authority. However, in the case, the impugned decisions were based on good public policy and in terms of GFR, 2017 and cannot be termed as result of any arbitrary or unreasonable exercise of power. Therefore, in absence of any findings to that effect, the learned Single Judge, ought not to have interfered with such a reasonable decisions. Page No.# 4/9 8. The learned counsel for the appellant, referring to the Rule 173 (xix) of GFR, 2017 argues that the learned Single Judge had failed to take into consideration that the three requirements provided in Rule 173 (xx) of GFR, 2017 are qualified by the word “may” and therefore, such prescription is not mandatory in nature and the authorities have a discretionary power either to accept or reject the bid of a single bidder and such exercise of power not being arbitrary or violative of any right of the writ petitioner ought not to have been interfered with. 9. It is contended by the learned counsel for the appellant that the discretionary power exercised by an authority can be interfered only in case of arbitrariness or mala fide exercise of power, however, in the instant case, the decision was taken in public interest and there is no allegation of mala fide or arbitrariness and therefore, the learned Single Judge would not have interfered with the decision to go for re-tender. 10. Referring to Clause 74 of ITB, the learned counsel for the appellant submits that the authority has right to cancel the NIT at any stage and no bidder can complaint that any of his right is violated due to such cancellation. In support of such contention, the learned counsel relies on the decision of the Hon’ble Apex Court in the case of State of Jharkhand & Ors –Vs- M/S Cwe- Soma Consortium reported in 2016 14 SCC 172 and State of U.P. & Anr – Vs- M/s Al Faheem Meetax P.Ltd. &Anr reported in 2016 4 SCC 716. 11. Referring to the affidavit filed by the State respondent in the writ proceeding, the learned counsel for the appellant argues that though a specific stand was taken that the re-tender was recommended to comply with the prescription made under GFR, 2017, however, the learned Single Judge ignored such stand on affidavit, rather relied on concession given by the learned Page No.# 5/9 Additional Advocate General. Accordingly, the learned counsel for the appellant concludes his argument by submitting that such decision of the learned Single Judge is liable to be interfered and re-tender process should be allowed. 12. Per-contra, Mr. Ratan, learned Additional Advocate General, State of Arunachal Pradesh, who also represented the State in the writ proceeding while asserting his original stand contends that the State is not aggrieved by such decision of the learned Single Judge and therefore, the State has not preferred any appeal and the State, infact, had already evaluated the price bid of the respondent No.1, in terms of the Rule 174 (xx) (a) to (c) of GFR, 2017 and already the resultant contract has been awarded to the respondent No. 1. Therefore, this writ appeal has become infructuous and due process of supply of medicine kits to Anganwadi Centres may not be disturbed by interfering with the impugned decision at this stage. 13. Mr. Ratan, learned Additional Advocate General further contends that he gave the concession on instruction and the fact that the State had not preferred any appeal and that supply was duly awarded, itself clarifies that it is the reviewed decision of the State not to go for fresh tender. Mr. Ratan, learned Additional Advocate General, further contends that in fact there was due participation and there was five bidders including the appellant and therefore, the decision of the Tender Evaluation Committee which was under challenged in the writ proceeding was under mistake of fact and law. 14. The learned counsel for the respondent No. 1 while adopting the arguments advanced on behalf of State submits that there were due participation in the bid process, the process adopted by the authority in evaluating the bid was fair and inspite of such wide participation, the Bid Evaluation Committee ought not to have recommended for re-tender and Page No.# 6/9 therefore, the writ petition was filed specifically challenging such action with a specific stand that there was no violation of Rule 144 of GFR, 2017 as there was equitable and fair treatment to all the bidders and it was specifically pleaded that such action of the Bid Evolution Committee was arbitrary. According to the learned counsel for the respondent No. 1, there was also no violation of Rule 173 (xix) of GFR, 2017 as there was effective competition, the bid of the respondent No. 1 was found responsive. There was no allegation that price offered by the respondent No. 1 was substantially been higher or that none of the technical proposal meets the minimum technical qualifying score. In that background, the State through the Advocate General, consented not to go for fresh bid. Therefore, in the aforesaid backdrop, the learned Single Judge is correct in allowing the writ petition. 15. According to the learned counsel for the respondent No. 1, this writ appeal should not be entertained at the behest of the bidder who was unsuccessful and admittedly its sample was not in conformity with the bid conditions. The respondent No. 1 has preferred the writ appeal only to cure his defects by participating in a fresh tender process. 16. We have given anxious consideration to the submissions advanced by the learned counsel for the parties. 17. Before dealing with the arguments of the learned counsel for the parties, let this court deal with the facts. The fact in nutshell is that an N.I.T. was issued by the respondent No. 2, for supply of Medicine Kits in Anganwadi Centres within the State. In response to such NIT, total five bidders including the appellant and the respondent No. 1 participated and submitted their bid. 18. The impugned order of the Bid Evaluation Committee dated 06.04.2023 discloses that detail scrutiny was done on 06.04.2023 by the Tender Evaluation Page No.# 7/9 Committee. During the technical bid evaluation, all the bidders were found to be technically qualified. It is on record that, thereafter, the samples of medicine in the medicine kits submitted by all the bidders were verified by TSC. After verification of the samples, it was found that the samples submitted by the respondent No. 1 was as per specification mentioned in the bid document and the samples of other four bidders including of the appellant failed to qualify the standard prescribed. Accordingly, the recommendation was made as per Rule 144 and 173 (xix) of GFR, 2017 for re-tender treating that there is only one bidder in the fray. 19. Rule 144 of GFR, 2017 prescribes certain standards for exercise of power by an authority when delegated with financial power of procuring goods in public interest and it prescribes that such authority shall be accountable to bring efficiency, economy and transparency in the manner relating to the public procurement and for fair and equitable treatment to the suppliers and to promote competition in public procumbent. It is no bodies’ case that the process was not transparent or in efficient. Rule 173 (xix) of GFR, 2017 on the other hand prescribes that a bid can be rejected when a competition is lacking or all bids are not substantially responsive or the bid prices are higher than the cost estimate or when none of the technical proposal meets minimum technical qualifying score. From the decision of the Bid Evaluation Committee, as recorded hereinabove, there were participation, the procedure was transparent, all the bidders were technically qualified, one bidder was qualified in all regards. Therefore, the learned Single Judge in the aforesaid backdrop of facts, when decided to interfere with the decision of the Bid Evaluation Committee on the concession given by the State, such decision cannot be said to be vitiated or perversed. The fact remains that the appellant’s sample kit of medicine was not Page No.# 8/9 to the standard prescribed. Therefore, in the totality of the matter, the concession given by the State through its Additional Advocate General cannot be termed as against law or against public policy, in the given facts of the present case to warrant interference by a Division Bench in an intra-Court appeal. 20. The learned counsel for the appellant is correct that until and unless the decision to cancel a tender process by the State is found to be arbitrary or unreasonable, the writ Court should not interfere in such a decision. The same principle shall also apply to the decision of the State expressed through the Additional Advocate General that it may allow to evaluate the valid tender in terms of Rule 173 (xx) of GFR, 2017 inasmuch as Rule 173 (xx) of GFR, 2017 prescribes that lack of competition in Rule 173 (xix) of GFR, 2017 shall not be determined solely on the basis number of bidders and even when only one bid is submitted, the process may be considered valid subject to fulfilment of the conditions enumerated in (a) to (c) of the said Rule. If State wants to rely on such prescription, a writ Court may, in a given case, when it is not malafide or against public policy may allow such concession, which has been done by the learned Single Judge in the impugned order. 21. The fact also remains that the appellant is an unsuccessful bidder who also participated in the tender process pursuant to N.I.T dated 02.03.2023. The appellant did not challenge the findings of the Tender evaluation committee that the sample of medicine kits supplied by the appellant was found to be not in conformity with prescription made in the bid document. Therefore, the decision that the appellant was unsuccessful bidder still remains. What he wants now is that there should be re-tender so that he can participate once again in the tender process. Balancing the equity as well as the public interest in continuation of supply of medicine kits to the Anganwadi Centres, this Court is Page No.# 9/9 not inclined to interfere with the decision of the learned Single Judge at the behest of the present appellant. 22. Accordingly, in the totality of the matter, this Court is of the opinion that without there being any material to suggest that the concession given by the learned Additional Advocate General was not supported by the consent of the State or that such concession was given for reasons other than bona fide or that it is against public policy or against public interest, the determination made by the learned Single Judge arrived at on the basis of such concession, cannot be termed as illegal or perverse to warrant interference at the hands of an intra- Court appellate authority, more particularly, Rule 173(xx) of the GFR, 2017, permits a tender process with only one successful tenderer. 23. Accordingly, the writ appeal stands dismissed. Parties to bear their own cost. JUDGE JUDGE Comparing Assistant