2024 (7) TMI 100 - HC - Indian Laws

Non-empanellment of Chartered Accountant's Firm (CA Firm) as per a Notice Inviting Tender (NIT) - prescription of 5 year certificate is present or not - specific ground on which the petitioner s firm has been disqualified is the fact that they have not proved that they had a Branch Office within the State of Bihar for the last 5 years - HELD THAT - The petitioner refers to Annexure-P2 to establish that the petitioner was working for 5 years within the State of Bihar. Annexure-P2 indicates the name of the firm and also its Head Office address which is at Guwahati. The year of establishment is said to be on 13.03.1961 and the same is continuing as a partnership firm. The constitution of the firm under GST IAN is said to be 01.01.2019 but specifically with respect to the Head Office. The address of the Branch Office at Patna is also shown in the order but, however, there is nothing to indicate that as per ICAI Records the Branch Office was situated continuously in Bihar since more than 5 years. Annexure-D produced along with Supplementary Counter Affidavit dated 29.11.2023 indicates the specific reason for disqualification of the petitioner who figures at Serial No. 94. The reason stated is Proposal has been not evaluated due to last five year FCC has been not attached. The petitioner obviously had produced a Firm Constitution Certificate evidencing their presence in Bihar for only the past one year. There are no reason to entertain the writ petition and the same is dismissed.

Summary

Issues:
1. Non-empanelment of the petitioner as per the Notice Inviting Tender (NIT).
2. Interpretation of the Corrigendum modifying the conditions for empanelment.
3. Disqualification of the petitioner's firm for not proving the existence of a Branch Office in Bihar for the last 5 years.
4. Submission of necessary enclosures and compliance with the tender requirements.
5. Evaluation of the Firm Constitution Certificate and compliance with the stipulated criteria.

Analysis:
1. The petitioner challenged their non-empanelment based on the NIT criteria, citing an interim order by another Division Bench. The Division Bench directed reconsideration due to a specific ground related to the absence of a 5-year certificate requirement on the initial tender submission date.
2. The respondent argued that the Corrigendum did not alter the disqualifying condition unmet by the petitioner, emphasizing the necessity of proving Branch Office existence in Bihar for 5 years.
3. The NIT specified criteria for empanelment, requiring a Branch Office in Bihar for over 5 years, registered under GST laws, with bank accounts in Bihar. The Corrigendum later relaxed the GST registration requirement but maintained the 5-year Branch Office continuity prerequisite.
4. Despite the Corrigendum modification favoring tenderers, the petitioner's disqualification was justified as they failed to prove the Branch Office's continuous presence in Bihar for over 5 years, as per ICAI Records, by submitting relevant bank statements.
5. The petitioner submitted their tender on time but failed to provide sufficient evidence of the Branch Office's 5-year existence in Bihar, leading to disqualification based on the Firm Constitution Certificate's discrepancy, showing presence for only one year according to GST records. The Court dismissed the petition, upholding the disqualification due to non-compliance with the essential criteria.