Central Information Commission
Shakeel Ahmed Shaikh vs Western Railway Mumbai on 26 November, 2019
Author: Neeraj Kumar Gupta
Bench: Neeraj Kumar Gupta
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग,मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No. CIC/WRAIL/A/2018/119592
Shakeel Ahmed Shaikh ... अपीलकता/Appellant
VERSUS
बनाम
CPIO, M/o Railways, Western ... ितवादी/Respondent
Railway, Mumbai.
Relevant dates emerging from the appeal:
RTI : 04-10-2017 FA : 14-11-2017 SA: 27-03-2018
CPIO : 06-11-2017 FAO : 15-12-2017 Hearing: 21-11-2019
ORDER
1. The appellant filed an application under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officer (CPIO), M/O. Railways, Western Railway, Mumbai seeking information regarding the tender no. C 331/4/3/Sub-Group I Vol. I, dated 23.02.2017 which was floated for Cleaning, Sweeping, Pest control & upkeep of Marine Lines, Charni Road, Grant Road, Mahalaxmi, Lower Parel, Elphinstone Road, Matunga Road, Mahim and Ram Mandir stations for a period of two years:-
"A) Kindly provide the information, which all companies participated in above tender, Name, Address and Contact Person. B) Kindly provide a copy of Price Bid Annexure A of all the contractors participated in this tender.
C) Kindly provide the information about the status of this tender, if it is finalized, we want a copy of Tender Committees Report. D) Kindly provide copies of all the Govt. Resolutions, Rules and Regulations, Laws, Notifications while estimating the cost of the above said tender and the estimate report."Page 1 of 6
2. The CPIO responded on 06-11-2017. The appellant filed the first appeal dated 14-11-2017 which was disposed of by the first appellate authority on 15-12- 2017. Thereafter, he filed a second appeal u/Section 19(3) of the RTI Act before the Commission requesting to take appropriate legal action against the CPIO u/Section 20 of the RTI Act and also to direct him to provide the sought for information.
Hearing:
3. The appellant, Mr. Shakeel Ahmed Shaikh did not attend the hearing. Mr. Shailendra Chaudhary, DCM participated in the hearing representing the respondent through video conferencing. The written submissions are taken on record.
4. The respondent submitted that the information sought by the appellant is a third party commercial information exempted u/Section 8(1)(d) r/w Section 8(1)(j) of the RTI Act, 2005 and there is no involvement of any public interest in the matter. In this regard, they have already given a reply to the appellant vide their letter dated 06-11-2017. Further, they informed the Commission that the tender process has been finalized. The given reply was also read out by the respondent. Decision:
5. This Commission observed that the tender process is already over and hence, disclosing the name of the successful bidder company and final numerical figure of the bid price is on a much wider perspective which cannot be equated with the commercial interest of the successful bidder and therefore, every public has a right to know the same to encourage greater transparency. Also, no harm would be caused in disclosing the outcome of the tender committee report after severing the personal details of the third party(s). It is pertinent to mention the legal principle enunciated by the Hon'ble High Court of Delhi in its judgment dated 22-11-2011 in W.P.(C.) No. 5677/2011 tilted as Jamia Millia Islamia v. Sh. Ikramuddin, wherein, it was observed as follows:-
21...The act of entering into an agreement with any other person/entity by a public authority would be a public activity, and as it would involve giving or taking of consideration, which would entail involvement of public funds, the agreement would also involve public interest. Every citizen is entitled to know on what terms the Agreement/settlement has been reached by the petitioner public authority with any other entity or individual. The petitioner cannot be permitted to keep the said information under wraps."Page 2 of 6
6. In view of the above, the respondent is directed to provide the information limited to the name of the successful bidder company and its final numerical figure of the bid price to the appellant along with the outcome of the tender committee report, within a period of 15 days from the date of receipt of this order.
7. However, the appellant has not established any larger public interest in disclosing the contact details of the concerned persons of the participating companies, name of the unsuccessful bidders and their bid price. Hence, such information need not be disclosed. Moreover, the appellant has sought copy of the tender committee report which may contain technical and financial details of the participating companies and therefore, its disclosure has a potential to adversely impact on the competitive position of third parties and hence, it cannot be provided to the appellant. In this regard, it is apt to advert to the legal principles expounded by the Division Bench of the Hon'ble High Court of Delhi in its decision dated 23.03.2012 in LPA No. 900/2010 tiled as Bharat Sanchar Nigam Ltd. v. Shri Chander Sekhar, wherein, it was observed as follows:-
"10. We, at the outset, deem it appropriate to discuss the issue generally as the same is likely to arise repeatedly. Confidentiality or secrecy is the essence of sealed bids. The same helps the contract awarding party to have the most competitive and best rates/offer. The essential purpose of sealed bidding is that the bids are secret bids that are intended by the vendor and expected by bidders to be kept confidential as between rival bidders until such time as it is too late for a bidder to alter his bid. Sealed bidding means and must be understood by all those taking part in it to mean that each bidder must bid without actually knowing what any rival has bid. The reason for this, as every bidder must appreciate, is that the vendor wants to avoid the bidders bidding (as they would do in open bidding such as at an auction) by reference to other bids received and seeking merely to top those bids by the smallest increment possible. The vendor's object is to get the bidders to bid "blind" in the hope that then they will bid more than they would if they knew how far other bidders had gone. Additionally, from each bidder's point of view his own bid is confidential and not to be disclosed to any other bidder, and he makes his bid in the expectation, encouraged by the invitation to submit a sealed bid, that his bid will not be disclosed to a rival. If, therefore, a rival has disclosed to him by the vendor the amount of another's bid and uses that confidential information to pitch his own bid enough to outbid the other, this is totally inconsistent with the basis on which each bidder has been invited to bid, and 8 the rival's bid is not a good bid; likewise if the rival adopts a formula that Page 3 of 6 necessarily means that he is making use of what should be confidential information (viz. the bid of another) in composing his own bid. In such a case, the amount of the other's bid is being constructively divulged to him. The process of inviting tenders has an element of secrecy − since nobody knows what would be the bid of the competitor, everyone will try to show preparedness for the best of the terms which will be acceptable to the institution calling the tenders. This requires ensuring that the tenders are not tampered with, the offers are not leaked to another bidder or even to the officers of the institution for which the tenders are called. Secret bids thus promote competition, guard against favouritism, improvidence, extravagance, fraud and corruption and lead to award of contract, to secure the best work at the lowest price practicable.
11. Over the years the secret bids are not confined to the price only, which may cease to be of any value or lose confidentiality once the bids are opened. The bids/tenders today require the bidders to submit in the bids a host of information which may help and be required by the tender calling institution to evaluate the suitability and reliability of the contracting party. The bidders are often required to, in their bids disclose information about themselves, their processes, turnover and other factors which may help the tender calling institution to evaluate the capability of the bidder to perform the contracted work. The secret bids/tenders are often divided into technical and financial parts. The bidders in the technical part may reveal to the tender calling institution their technology and processes evolved and developed by them and which technology and processes may not otherwise be in public domain and which the bidder may not want revealed to the competitors and which technology/processes the bidder may be using works for the other clients also and which technology/processes if revealed to the competitors may lead to the bidder losing the competitive edge in subsequent awards of contracts. If it were to be held that a bidder by virtue of participating in the tender becomes entitled to all particulars in the bids of all the bidders, the possibility of unscrupulous businessmen participating in the tender merely for acquiring such information, cannot be ruled out. Such disclosure may lead to the competitors undercutting in future bids. We may at this stage notice that the Freedom of Information Act prevalent in United States of America as well as the Freedom of Information Act, 2000 in force in United Kingdom, both carve out an exception qua trade secrets and commercial or financial information obtained from a person and which is privileged or confidential. The tests laid down in those jurisdictions also, is of „if Page 4 of 6 disclosure of information is likely to impair government's ability to obtain necessary information in future or to cause substantial harm to competitive position of person from whom information is obtained. It has been held that unless persons having necessary information are assured that it will remain confidential, they may decline to cooperate with officials and the ability of government to make intelligent well-informed decisions will be impaired. Yet another test of whether the information submitted with the bids is confidential or not is of 'whether such information is generally available for public perusal' and of whether such information 'is customarily made available to the public by the business submitter'. If it is not so customarily made available, it is treated as confidential."
8. Further, this Commission observed that the information sought by the appellant on point no. (D) requires interpretation of the rules while estimating the cost of the tender and estimate report. Therefore, the CPIO is not obliged to provide non-specific information in terms of the judgment of the Hon'ble Supreme Court of India in CBSE and Anr. Vs. Aditya Bandopadhyay and Ors, 2011 (8) SCC 497, wherein, it was held as under:-
"35...It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."
9. With the above observations, the appeal is disposed of.
10. Copy of the decision be provided free of cost to the parties.
नीरज कु मार गु ा)
Neeraj Kumar Gupta (नीरज ा
सूचना आयु )
Information Commissioner (सू
दनांक / Date 21-11-2019
Authenticated true copy
(अिभ मािणत स यािपत ित)
S. C. Sharma (एस. सी. शमा),
Dy. Registrar (उप-पंजीयक),
(011-26105682)
Page 5 of 6
Addresses of the parties:
1. The CPIO,
M/o Railways, Sr. DCM & PIO,
Western Railway, DRM'S Office,
Commercial Department, Mumbai
Central, Mumbai - 400008
2. Mr. Shakeel Ahmed Shaikh
Page 6 of 6