This case, heard in the High Court of Judicature at Patna, involves a writ petition filed by Brijalkumar Bharatbhai Shah, proprietor of M/s Bindiya Enterprise, against the State of Bihar and Magadh University. The petitioner challenges his firm's disqualification from a tender process initiated by Magadh University for the supply of 40 lakh answer sheets.
Background:
Magadh University issued a Notice Inviting Tender (NIT) for the supply of answer sheets. Brijalkumar Bharatbhai Shah's firm, M/s Bindiya Enterprise, applied for the tender but was disqualified because it did not meet certain additional terms and conditions specified in the NIT.
Petitioner's Arguments:
- The petitioner's counsel argued that the firm had successfully participated in a similar tender in 2019, where these additional terms and conditions were not required.
- It was also contended that the additional terms and conditions violated the GeM (Government e-Marketplace) guidelines for the supply of goods and services.
Respondents' Arguments:
- The respondents' counsel defended the conditions, arguing their validity.
- It was pointed out that the NIT uploaded on the GeM portal included the additional terms and conditions.
Key Issues:
The primary issues in this case revolve around the validity and reasonableness of the additional terms and conditions imposed by Magadh University in the NIT. These conditions included:
- Requirement of a Character Certificate: The tenderers were required to produce a character certificate issued by the Superintendent of Police.
- Location of Office/Branch: The tenderers were required to have an office/branch located in Bihar for at least three years, for which authentic documentation was to be provided.
Court's Observations and Judgment:
The court, comprising Honourable the Chief Justice and Honourable Mr. Justice Harish Kumar, made the following observations and judgments:
- Validity of Conditions: The court held that merely because a condition was not present in a previous tender (2019) does not invalidate it in the present tender, provided the condition is otherwise valid.
- Non-compliance: The petitioner admittedly did not satisfy two of the additional terms and conditions, leading to the disqualification.
- Character Certificate: The court found the requirement of a character certificate to be valid and not onerous. It was deemed a reasonable measure to ensure the tenderer is law-abiding. The insistence on a certificate from the Superintendent of Police was justified due to their wider jurisdiction. The court dismissed the petitioner's contention that Clause 13 of the NIT was against Section 3 of the Oaths Act, 1969, finding no relevance of the Act to the issuance of a character certificate.
- Office/Branch Location: The court found the condition requiring an office/branch in Bihar for three years to be valid and reasonable. It ensures that the tenderer can be easily proceeded against in case of default. This condition does not totally exclude entrepreneurs from outside the state but sets a reasonable criterion for accountability.
- GeM Guidelines: The court clarified that while the GeM portal allows registration of entrepreneurs without location restrictions, it does not restrict the purchaser (Magadh University) from setting additional conditions for tenderers. The authority to decide the conditions to be satisfied by a prospective seller/service provider lies with the awarder.
Conclusion:
The court found no reason to interfere with the tender opening process and rejected the writ petition. The additional terms and conditions imposed by Magadh University were deemed valid and reasonable, and the petitioner's disqualification was upheld.
Read the full judgement Below;
https://patnahighcourt.gov.in/viewjudgment/MTUjODM3MCMyMDI0IzEjTg==-V7szfNYxMgQ=
