Jharkhand High Court
Clean Coal Enterprises Pvt. Ltd vs Central Coalfields Ltd on 17 September, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.4859 of 2024
With
I.A. No.9378 of 2024
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Clean Coal Enterprises Pvt. Ltd., (Lead Member of Consortium of Clean Coal Enterprises Pvt. Ltd., Maa Durga Coal and Minerals Pvt. Ltd., and Rama Coal Washeries Pvt. Ltd.) having its registered office at Commercial Building, Rama World, Tifra Parsada, Bilaspur, P.O. and P.S. Bilaspur Industrial Estate, District - Bilaspur, Chhattisgarh 495 001, through its General Manager (Marketing) and Authorised representative, Mr. Santosh Kumar Soni, aged about 50 years, son of Mr. Ram Gopal Soni, resident of Sankalp, behind Bachpan School, Mahavir Nagar, P.O. and P.S. - Mahavir Nagar, District - Bilaspur, Chhattisgarh 495001. .... .... Petitioner Versus
1. Central Coalfields Ltd., through its Chairman cum Managing Director, having its office at Darbhanga House, P.O. - Court Post Office, P.S. Kotwali, District Ranchi, Jharkhand 834001.
2. General Manager (Washery Construction), Central Coalfields Ltd., having its office at Darbhanga House, P.O. - Court Post Office, P.S. Kotwali, District - Ranchi, Jharkhand 834001.
3. Dhansar Engineering Company Pvt. Ltd., through its Director, having its office at Surya Auto Campus, Dhansar, P.O. and P.S. Dhansar, District - Dhanbad, Jharkhand 828 016.
4. Barjora Mining Pvt. Ltd., through its President (Mining), having its office at Circular Court, 9th Floor, 8, A.J.C. Bose Road, P.O. and P.S.-A.J.C. Bose Road, District - Kolkata, West Bengal, 700 017.
.... .... Respondents CORAM : HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. M.S. Mittal, Sr. Advocate Mr. Salona Mittal, Advocate For the Respondent-CCL : Mr. Indrajit Sinha, Advocate Mr. Ankit Vishal, Advocate
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1 WPC No.4859/2024 03/Dated: 17.09.2024 Per Sujit Narayan Prasad, A.C.J. I.A. No.9378 of 2024
1. The instant interlocutory application has been filed for seeking amendment of the accompanying writ petition in view of rejection of the technical bid of the petitioner informed vide email dated 29.08.2024.
2. Mr. M.S. Mittal, learned Sr. Counsel for the petitioner has submitted that the prayer made in the instant application is formal in nature, i.e., the communication of the rejection of the technical bid and as such, the instant application has been filed for making the same as a part of the writ petition, as also, for seeking a direction to quash the same in addition to the prayer made in the writ petition.
3. Mr. Indrajit Sinha, learned counsel appearing for the respondent-CCL has not objected to such prayer.
4. Accordingly, the instant interlocutory application being I.A. No.9378 of 2024 stands allowed.
W.P.(C) No. 4859 of 2024 Prayer
1. This writ petition has been filed under Article 226 of the Constitution of India for the following relief:-
"(i) For the issuance of an appropriate writ/ order/ direction or a writ in the nature of mandamus directing the Respondent CCL to declare the Technical Bid of the Petitioner as technically compliant and to accept the same for the purpose of opening of the Price Bid in respect of the NIT dated 2.3.2024 for setting up of New Sawang 2 WPC No.4859/2024 Coking Coal washery plant at kithara Area of CCL (Bokaro), on Build- Own-Operate basis (BOO), especially considering the fact the NIT itself stipulates that technical bids can be accepted if the clarifications sought from the bidders does not affect its eligibility status and further because the clarifications sought from the Petitioner, though not affecting its eligibility status, were also submitted by the last date.
(ii) For the issuance of any other appropriate writ(s) or direction(s) or order(s) as this Hon'ble Court may deem fit and proper in view of the facts and circumstances of the case for doing conscionable justice to the petitioner.
(iii) For the issuance of further appropriate writ/order/direction or a writ in the nature of a certiorari for quashing / setting aside the rejection of the Technical bid of the Petitioner informed vide email dated 29.08.2024 (Annexure-10) in view of the fact that the same is unreasoned and is arbitrary, unreasonable and violative of Articles 14 and 19(1)(g) of the Constitution of India."
Factual Matrix of the case
2. The brief facts of the case, as per the pleading made in the writ petition, required to be enumerated, which reads as under:-
3. The writ petitioner is the lead member of the consortium of three private limited companies registered under the Companies Act, 2013. The respondent nos.3 and 4 are also the bidders who participated and whose bids have also been technically evaluated.
4. It is the case of the writ petitioner that the Respondent CCL has failed to acknowledge the clarifications submitted by the Petitioner, despite, the fact that the clarifications sought for by the Petitioner were submitted on 2.8.2024, i.e., the last date of submitting the clarifications, and further because of the fact that the clarifications required from the Petitioner did not affect its eligibility. 3 WPC No.4859/2024
5. The Petitioner Company is mainly engaged in the business of operation of coal washeries in the State of Chhattisgarh, Orissa and Maharashtra and serving various state generating companies through these coal washeries.
6. The Respondent CCL invited a tender vide E-Tender Notice No. CCL/RNC/WC/ New Sawang Washery/23-24/02 dated 2.3.2024 (Tender ID 2024 CCL 304135 1) for planning, design, engineering and setting up of coal washing plant and its subsequent operating and maintenance to produce washed / clean coal of requisite quality and delivery of washed / clean coal to Sawan Railway siding at the Kathara Area of CCL in Bokaro district. The capacity of the washery would be 1.5 Metric Tonnes Per Annum of raw coal. The project was a BOO Project (Build Own Operate) and duration of the project was 36 months for construction trial run and commission, and 18 years of operation and maintenance, extendable for a further period of 10 years on mutually agreeable terms.
7. The eligibility criteria of the bidders was specified in clause 10 of the NIT to the effect that "The Technical Qualification Requirement (TQR) and Financial Qualification Requirement (FQR) of the Bidders and/or Associate(s) for coal washery under "Build-Own-Operate"
(BOO) Concept should be to meet the qualifying requirement as stipulated hereafter". Thereafter, various stipulation as to required experience, net worth, working capital etc. are stipulated in clause
10. 4 WPC No.4859/2024
8. It is the further case of the petitioner that he has participated in the abovementioned NIT as a consortium with two other companies, namely, Maa Durga Coal and Minerals Pvt. Ltd. and Rama Coal Washeries Pvt. Ltd. The petitioner was the lead member of the consortium and being eligible in all respects, the bid was submitted on behalf of the consortium on 25.5.2024, along with the requisite EMD of Rs. 50,00,000.
9. Thereafter, it was informed by the Tender Issuing Authority that the technical covers had been opened on 25.6.2024 and the offers received were under techno commercial scrutiny.
10. As per the information available on the e-procurement portal of Respondent CCL, the following bidders including the Petitioner participated in the abovementioned tender -
(i) Consortium of Clean Coal Enterprises Pvt.
Ltd. (Lead member), Rama Coal Washeries Pvt. Ltd and Maa Durga Coal and Minerals Pvt. Ltd. (Petitioner herein)
(ii) Dhansar Engineering Company Pvt. Ltd.
(iii) Barjora Mining Pvt. Ltd.
11. The bid submitted by the petitioner was technically evaluated by the Tender Committee and certain clarifications / documents were sought from the petitioner by uploading the omissions/ shortcomings in the e-procurement portal. The said queries were uploaded by the Respondent CCL on 26.7.2024 requiring the Petitioner to submit response / clarifications by 11:00 AM of 2.8.2024.
12. Inadvertently, the petitioner could not check the online portal and respond to the queries / clarifications due to the fact that the 5 WPC No.4859/2024 office of the petitioner was being relocated.
13. The petitioner became aware of the queries /clarifications raised by the Respondent CCL on receiving a follow-up call from CCL after the expiry of the deadline on 2.8.2024.
14. Accordingly, the Petitioner vide email dated 2.8.2024 sought an extension of 7 days to submit the relevant documents / clarifications.
15. On the queries raised by CCL, the petitioner on the very same day furnished all the required documents / clarifications vide its email dated 2.8.2024 (sent at 10:09 PM).
16. On receiving no response, the petitioner again issued another letter dated 20.8.2024 vide email, requesting the Respondent CCL to consider their technical bid as valid and open their price bid.
17. The writ petitioner has agitated his grievance that the rejection of his technical bid vide communication dated 29.08.2024 is nothing but an arbitrary exercise of the respondent-CCL that too on the basis of a silly ground having no bearing with the issue of eligibility said to be mandatory condition to be followed for consideration of candidature of the present writ petitioner. Being aggrieved with the aforesaid actions of the respondent-CCL, the petitioner has approached this Court by filing the instant writ petition. Arguments of the petitioner
18. Mr. M.S. Mittal, learned senior counsel appearing for the petitioner has taken the following grounds in assailing the actions taken by the respondent-CCL:-
(i) The argument has been advanced by referring to the condition 6 WPC No.4859/2024 stipulated under condition no.17.0 (vi) which is under the caption head evaluation of bid.
It has been contended that the clarification with respect to the bid document was to be submitted at 11:00 in the morning on 02.08.2024 but due to some bonafide mistake and inadvertence, it could not have been submitted as required to be submitted under condition no.(vi) of Clause 17.0 of the bid document. But without taking into consideration the fact that the said document which was submitted although after the scheduled time but on the same day, the confirmatory document having not changed the eligibility status of the bidder in connection with the information furnished by him.
(ii) The learned Senior Counsel has taken the ground that while rejecting the bid document in such a hyper technical ground, is nothing but only to accommodate the other bidders whose costs having found to be after opening of the price bid much much in higher side to that of the price of the present petitioner.
19. Learned Senior Counsel, based upon the aforesaid ground, has submitted that the rejection of the bid document of the present petitioner, therefore, is fit to be quashed and set aside and his candidature is fit to be accepted by opening of the price bid. Arguments of the respondent-CCL
20. Mr. Indrajit Sinha, learned counsel appearing for the respondent-CCL has taken the following grounds in opposition to the pleading and arguments advanced on behalf of the writ petitioner:-
(i) It has been contended that the condition stipulated in the bid 7 WPC No.4859/2024 document is mandatorily to be adhered to, once the respondents have issued the bid document incorporating certain terms and conditions, the same is required to be followed in its strict sense and it is not available for one or the other bidders to take the ground that the particular condition which has not been followed is not mandatory.
(ii) The argument has been advanced that the moment the condition has been inserted in the bid document, it is the bounden duty of each and every bidder to strictly follow it, failing which, it is the privilege of the authority who has issued the bid to reject the candidature of such bidder and exactly the same is the case herein, since, the petitioner has not fulfilled the condition of submitting the confirmatory documents, as required to be submitted as per Clause 17.0(vi) by 11:00 in the morning on 02.08.2024.
(iii) The ground has been taken that it is the admitted case of the writ petitioner, as has been admitted by the writ petitioner at paragraph-27 that the petitioner had committed an inadvertent and bona fide mistake in not being able to reply to the queries raised by the Department, as required to be furnished under Clause 17.0(vi) under the caption head evaluation of bid.
(iv) The ground, therefore, has been taken that when the petitioner himself is admitting the fact about non-submission of the confirmatory document, as has been sought for by the respondents, then, where is the question to seek relaxation in the said condition 8 WPC No.4859/2024 that too after acceptance of the confirmatory document, as required under Clause 17.0(vi) of the bid document.
21. Learned counsel, based upon the aforesaid ground, has submitted that rejection of the technical bid, therefore, suffers from no error.
Analysis
22. We have heard the learned counsel for the parties and gone across the condition stipulated in the bid document, as also, the pleading of the respective parties.
23. It needs to refer herein that this Court while hearing the matter on 04.09.2024, has called upon the respondent-CCL to seek instruction and file affidavit and in pursuant thereto, the counter affidavit has been filed, wherein, the ground in opposition has been taken regarding the claim of the writ petitioner particularly at paragraph-19 of the counter affidavit filed by the respondent-CCL.
24. This Court, before proceeding to answer the arguments advanced on behalf of the parties, is of the view that the following issues are required to be considered, i.e.,
(i) Whether the condition stipulated in the bid document with respect to the clarification sought for by the authority, who has issued the bid, if not complied with, the bid document is to be accepted or it is to be rejected on the ground of non-compliance of the clarification sought for by the respondent concerned;
(ii) Whether the condition stipulated in the bid document, based upon that, the candidature of the writ petitioner has been 9 WPC No.4859/2024 rejected, can be said to be mandatory or it is directory;
(iii) Whether on the basis of cost said to be in higher side on assessment of one or the other bidders, can it be taken as a ground to consider the candidature of one bidders whose candidature has been rejected due to non-fulfillment of the terms and conditions at the time of scrutiny of the technical bid.
25. All the three issues are related together and as such, the same are being taken up together for their consideration.
26. This Court, before considering the same, first to decide as to whether, the issue based upon that, the candidature of the writ petitioner has been rejected at the scrutiny stage, can be said to be mandatory or directory.
27. This Court, in order to answer the said issue, needs to refer herein the certain terms and conditions of the bid document, based upon that, the candidature of the writ petitioner has been rejected.
28. The bid has been invited for setting up of New Sawang Coking Coal Washery (1.5 Mtpa) at Kathara area, CCL on BOO Concept.
29. Clause has been provided as under Clause 9.0 referring therein the eligibility of the bidders, for ready reference, Clause 9.0, under the caption head "eligible bidders" which contains sub-clause 9.1, 9.1.1 and 9.1.2, which are being referred as under:-
"9.0 Eligible Bidders 9.1 Any bidder enrolled in the site https://coalindiatenders.nic.in having Digital Signature Certificate (DSC) issued from any agency 10 WPC No.4859/2024 authorized by Controller of Certifying Authority (CCA), Govt. of India and which can be traced up to the chain of trust to the Root Certificate of CCA subject to his qualification as per Clause no. 10.0 of this detail e- tender notice. The bidder may be a proprietary concern/ partnership firm/body corporate/ Company registered under the Companies Act 2013 or any previous Company Law/Act as applicable in India/ Joint Venture or equivalent in case of Foreign Bidders. In case of Joint Venture (JV) or consortium unless otherwise specified, all the partners shall be jointly and severally liable.
All Indian bidders should be registered under GST and should possess GST Registration Certificate (with GSTIN).
9.1.1 Participation of Joint Venture company A Joint Venture Company may participate in the bidding process either as a sole bidder or as a member of consortium. Each member/ entity of the Joint Venture Company shall be responsible jointly & severally for completing the task as per the bid.
Joint Venture Company shall comply the
following:
a) Documentary evidence (Certificate of
Incorporation; Certificate of Registration;
Memorandum & Article of Association etc.) w.r.t. formation of the joint venture company must be furnished with the offer.
b) The offer shall include all the information regarding capability, experience as required for a bidder for each entity in Exhibit 1. For the purpose of eligibility criteria, collective credentials of the members of a Joint Venture Company will also be considered.
c) An entity can be a member in only one Joint 11 WPC No.4859/2024 Venture Company. In case, same entity submits offer as a member of other Joint Venture Company for the same project then offers submitted by all such joint venture companies shall be rejected.
d) Separate offer by an entity of a Joint Venture Company shall not be accepted.
e) In case, JV Company submitting its Offer on the financial strength and/ or technical competence of its holding company/ JV Partner(s), it has to obtain and produce a letter of undertaking in Exhibit 6 to the effect that in case of any untoward happening towards the successful execution of the contract and/ or event occurring that are distinct and different from the stipulated terms & conditions of the bid document and attributable to bidders, its holding company/ JV Partner(s) shall be legally bound both jointly and severally to this Contract for discharging all the contractual obligations on behalf of bidder.
9.1.2 Participation of Subsidiary Company In case, the Bidder is subsidiary/ entity(ies) of a parent company and consolidated financial report is prepared by the parent company showing information/ net-worth of subsidiary/ entity(ies) separately, the same in respect of the subsidiary/ entity(ies) shall also be considered to meet the eligibility criteria. In such case, copy of a letter from the parent company to that effect shall be submitted as Exhibit 5.
In case, the Bidder/ Consortium partner(s) being a subsidiary company submitting its Offer on the financial strength and/ or technical competence of its holding company, it has to obtain and produce a letter of undertaking in Exhibit 6 to the effect that in case of any untoward happening towards the successful execution of the contract and/ or event occurring that 12 WPC No.4859/2024 are distinct and different from the stipulated terms & conditions of the bid document and attributable to bidders/ consortium partner(s), its holding company shall be legally bound both jointly and severally to this contract for discharging all the contractual obligations on behalf of bidder/ consortium partner(s)."
30. It is evident from Clause 9.1 that any bidder enrolled in the site https://coalindiatenders.nic.in having Digital Signature Certificate (DSC) issued from any agency authorized by Controller of Certifying Authority (CCA), Govt. of India and which can be traced up to the chain of trust to the Root Certificate of CCA subject to his qualification as per Clause no. 10.0 of this detail e- tender notice. The bidder may be a proprietary concern/ partnership firm/body corporate/ Company registered under the Companies Act 2013 or any previous Company Law/Act as applicable in India/ Joint Venture or equivalent in case of Foreign Bidders. In case of Joint Venture (JV) or consortium unless otherwise specified, all the partners shall be jointly and severally liable.
31. All Indian bidders should be registered under GST and should possess GST Registration Certificate (with GSTIN).
32. It is evident from clause 9.1.1 that aJoint Venture Company may participate in the bidding process either as a sole bidder or as a member of consortium. Each member/ entity of the Joint Venture Company shall be responsible jointly & severally for completing the task as per the bid.
33. The Joint Venture Company is required to submit the 13 WPC No.4859/2024 documents, as referred and quoted hereinabove.
34. The Subsidiary Company can also participate, as would appear from Clause 9.1.2 and in such case, the Bidder is subsidiary/ entity(ies) of a parent company and consolidated financial report is prepared by the parent company showing information/ net-worth of subsidiary/ entity(ies) separately, the same in respect of the subsidiary/ entity(ies) shall also be considered to meet the eligibility criteria.
35. A clause has been provided under the caption head as Route of Bidding. Clause 9.2.1 provides Sole Bidder Route, while 9.2.2 provides Associate/Consortium Route.
36. Here, the factual aspect of the present case is that the petitioner has participated in the bid on the basis of the Consortium Route and as per which, the requirement which is to be followed is that one of the Consortium partner shall be designated as Lead Member (LM). In this route, two or more (maximum three including Lead Member) entities may jointly participate in the bidding process including the Lead Member. Each entity shall be jointly and severally responsible for completing the task as per the contract. The consortium shall comply the requirements given hereafter.
37. Clause 9.3 provides the submission of certain documents as submission of Exhibit-1, GST registration Certificate, MoU & PoA (to be submitted by Bidders as a Confirmatory Document).
38. The eligibility criteria for bidding has been provided under 14 WPC No.4859/2024 clause 10.0, which contains sub-clause, i.e., 10.1, 10.2, 10.2.1, 10.2.2, 10.2.2.1 10.2.2.2.
39. Clause 10.1 provides desired profile of Bidder/Associates. Clause 10.2 provides desired qualification requirement of bidders/associates.
40. Clause 10.2.1 provides the technical qualification requirement (TQR), as per which, the bidder/associates(s) shall have a proven track record of successful completion of setting up atleast one (single unit) Coal/Mineral Beneficiation Plant of minimum 0.5 Mtpa with Jig/HM Separation/Spiral/Flotation technologies or combination thereof in the last Eighteen (18) years (from last day of the month previous to the one in which bid is invited). In respect of the above eligibility criteria, the bidders are required to furnish the following information along with Exhibit-7:
a. Name of the Coal Washery/ Mineral Beneficiation Plant set up.
b. Material Handled.
c. Complete address of the plant.
d. Whether Coal Washery/ Mineral Beneficiation Plant is owned by bidder/Associate/Client.
e. Name of the Client (if owned by client, else N.A.).
f. Ref. No. & Date of Award of Work (if owned by Client, else N.A).
g. Whether the scope of work for the reference plant included 15 WPC No.4859/2024 Planning, Design & Engineering, Procurement, Construction & Erection, Commissioning.
h. Plant capacity (in tonnes per annum).
i. Date of Commissioning of the plant.
j. Brief Description of technology used in the referred plant (Jig/HM Separation/Spiral/Flotation/ combination thereof).
41. The aforesaid condition stipulates a note, wherein, it has been provided that Bidder/Associate(s) should submit a notarized certificate from its client or, notarized self-certificate in case the plant is owned by the Bidder/Associate(s) itself that "Bidder/Associate(s) has successfully performed Planning, Design & Engineering, Procurement, Construction & Erection, Commissioning of the plant.
42. Clause 10.2.1B provides that the Bidder/ Associate(s) shall have the experience of operation and maintenance (O&M) of the Coal/ Mineral Beneficiation plant of minimum 0.5 Mtpa with Jig/HM Separation/Spiral/Flotation technologies or combination thereof for a continuous period of minimum 2 years in the last Eighteen (18) years (from last day of the month previous to the one in which bid is invited) with minimum 10, 00,000 (Ten lakh) tonnes quantity of raw coal/mineral handled.
43. In respect of the above eligibility criteria the bidders are required to furnish the following information along with Exhibit-7:
a. Name of the Coal Washery/ Mineral Beneficiation Plant operated.16 WPC No.4859/2024
b. Material Handled.
c. Complete address of the plant.
d. Plant capacity (in tonnes per annum).
e. Whether the operated Coal Washery/ Mineral Beneficiation Plant is owned by bidder/Associate/Client f. Name of the Client (if owned by client, else N.A.).
g. Ref. No. & Date of Award of Work for operation (if owned by Client, else N.A).
h. Whether the scope of work for the reference plant included Operation of Plant and Maintenance of Plant.
i. Maximum Quantity of Raw Coal/ Mineral (Tonnes) handled by the plant in any two consecutive years during last Eighteen (18) years. Quantity handled in two consecutive years should not be less than 10,00,000 (Ten lakh) tonnes.
j. Brief description of technology used in the referred plant (Jig/HM Separation/Spiral/Flotation/combination thereof).
44. Clause 17.0 stipulates about evaluation of bid which contain clauses, which are having bearing with the present issue.
45. It is evident from condition stipulated under condition no.(i) of the clause 17.0 that after opening of Technical bid, the documents submitted by bidder(s) in Part-1 as enlisted in NIT will be downloaded by the Evaluator and shall be put up to the Tender Committee. The Tender Committee will examine the uploaded documents against information/declarations furnished by the 17 WPC No.4859/2024 bidder(s) online. If it confirms to all of the information/ declarations furnished by the bidder online and does not change the eligibility status of the bidder then the bidder will be considered eligible for opening of Price Bid.
46. Condition no.(ii) provides that in case the Tender Committee finds that there is some deficiency in uploaded documents corresponding to the information furnished online or in case corresponding document have not been uploaded by Bidder(s) then the same wilt be specified online by Evaluator clearly indicating the omissions/shortcomings in the uploaded documents and indicating start date and end date allowing 7 days (7 x 24 hours) time for online re-submission by bidder. The bidder will get this information on their personalized dash board under "Upload confirmatory document" link. Additionally, information shall also be sent by system generated email and SMS, but it will be the bidder's responsibility to check the updated status/information on their personalized dash board regularly after opening of bid. No separate communication will be made in this regard. Non-receipt of e-mail and SMS will not be accepted as a reason of non-submission of documents within prescribed time. The bidder(s) will upload the scanned copy of all those specified documents in support of the information/ declarations furnished by them online within the specified period of 7 (Seven) days. If the bidder(s) fails to submit the specified document/s in 7 (Seven) days. No further document shall be sought from Bidder. 18 WPC No.4859/2024
47. Condition no.(vi) provides that in case the bidder(s) fails to confirm online submitted information(s)/declaration(s) by the submitted documents as (ii) above, their/his bid shall be rejected; however, if the confirmatory documents do not change eligibility status of the bidder in connection his submitted online information(s)/ declaration(s), then his/their bid will be accepted for opening of Price Bid, for ready reference, condition no.(i), (ii) and (vi) of clause 17.0 are being referred as under:-
"17.0 Evaluation of Bid
i) After opening of Technical bid, the documents submitted by bidder(s) in Part-1 as enlisted in NIT will be downloaded by the Evaluator and shall be put up to the Tender Committee. The Tender Committee will examine the uploaded documents against information/declarations furnished by the bidder(s) online. If it confirms to all of the information/ declarations furnished by the bidder online and does not change the eligibility status of the bidder then the bidder will be considered eligible for opening of Price Bid.
ii) In case the Tender Committee finds that there is some deficiency in uploaded documents corresponding to the information furnished online or in case 18 corresponding document have not been uploaded by Bidder(s) then the same wilt be specified online by Evaluator clearly indicating the omissions/shortcomings in the uploaded documents and indicating start date and end date allowing 7 days (7 x 24 hours) time for online re-submission by bidder.
The bidder will get this information on their personalized dash board under "Upload confirmatory 19 WPC No.4859/2024 document link. Additionally, information shall also be sent by system generated email and SMS, but it will be the bidder's responsibility to check the updated status/information on their personalized dash board regularly after opening of bid. No separate communication will be made in this regard. Non-
receipt of e-mail and SMS will not be accepted as a reason of non-submission of documents within prescribed time. The bidder(s) will upload the scanned copy of all those specified documents in support of the information/ declarations furnished by them online within the specified period of 7 (Seven) days. If the bidder(s) fails to submit the specified document/s in 7 (Seven) days. No further document shall be sought from Bidder.
vi) In case the bidder(s) fails to confirm online submitted information(s)/declaration(s) by the submitted documents as (ii) above, their/his bid shall be rejected; however, if the confirmatory documents do not change eligibility status of the bidder in connection his submitted online information(s)/ declaration(s), then his/their bid will be accepted for opening of Price Bid"
48. The reference of the condition as contained in the bid documents which has got bearing for the present issue that the required document after submission of the bid document is to be submitted by one or the other bidder as per the condition no.(ii) of clause 17.0.
49. However, in case the bidder fails to confirm the online submitted information(s)/declaration(s) by the submitted documents as (ii) above, such bid shall be rejected. However, the exception has 20 WPC No.4859/2024 been carved out that if the confirmatory documents do not change eligibility status of the bidder in connection his submitted online information(s)/ declaration(s), then his/their bid will be accepted for opening of Price Bid.
50. As such, it is evident that the requirement to consider the necessity of document which is to be submitted and the necessity will be of such subsequent document which is to be submitted, if not submitted, as per the requirement made under clause 17.0(ii) then such document which has not been submitted, if in no way changed the eligibility criteria of one or the other bidders, then the candidature of such bidder will not be cancelled and his bid will be accepted for opening of price bid that would be the meaning of condition stipulated under clause 17.0(vi).
51. This Court, in this connection needs to refer herein the Confirmatory Documents Submission Confirmation, as has been brought on record by way of annexure-5 by the writ petitioner.
52. It is evident from column no.(ii), i.e., document submission start date that the last date of acceptance of the application was 26th July, 2024 up to 11 a.m. in the morning. The document submission end date was 02.08.2024 up to 11 a.m. in the morning.
53. The evaluator description is under column no.(vi), whereby and whereunder, as would appear from running page 236 which is the part of Annexure-5 that exhibit-7 -bidder has submitted details of 4 plants owned by lead member, M/s Clean Coal at point no.g of the 21 WPC No.4859/2024 Exhibit-7. However, as per clause no.10.2.1B, experience of operation and maintenance of the Coal/Mineral Beneficiation plant of minimum 0.5 Mtpa is required.
54. Bidder to submit a clarification as which plant owned by them and subsequently its raw coal quantity handled for two consecutive years as per requirement of clause no.10.2.1B to meet the Technical Qualification requirement.
55. Moreover, notarized self-certificate is also required to be submitted as per the Note mentioned in clause no.10.2.1 B of the NIT. Bidder to take a note that same details as furnished under Exhibit-7 is to be submitted in point no.2 under Exhibit-2.
56. It is, thus, evident that the technical evaluation committee while evaluating the bid document of the writ petitioner particularly exhibit- 7 has found that the experience of operation and maintenance of the Coal/Mineral Beneficiation plant of minimum 0.5 Mtpa is required of the lead member M/s Clean Coal at point no.g, as contained under Exhibit-7.
57. Clause 10.2.1B stipulates that the Bidder/ Associate(s) shall have the experience of operation and maintenance (O&M) of the Coal/ Mineral Beneficiation plant of minimum 0.5 Mtpa with Jig/HM Separation/Spiral/Flotation technologies or combination thereof for a continuous period of minimum 2 years in the last Eighteen (18) years (from last day of the month previous to the one in which bid is invited) with minimum 10, 00,000 (Ten lakh) tonnes quantity of raw 22 WPC No.4859/2024 coal/mineral handled.
58. In respect of the above eligibility criteria the bidders are required to furnish the following information along with Exhibit-7:
a. Name of the Coal Washery/ Mineral Beneficiation Plant operated.
b. Material Handled.
c. Complete address of the plant.
d. Plant capacity (in tonnes per annum).
e. Whether the operated Coal Washery/ Mineral Beneficiation Plant is owned by bidder/Associate/Client.
f. Name of the Client (if owned by client, else N.A.).
g. Ref. No. & Date of Award of Work for operation (if owned by Client, else N.A).
h. Whether the scope of work for the reference plant included Operation of Plant and Maintenance of Plant.
i. Maximum Quantity of Raw Coal/ Mineral (Tonnes) handled by the plant in any two consecutive years during last Eighteen (18) years. Quantity handled in two consecutive years should not be less than 10,00,000 (Ten lakh) tonnes.
j. Brief description of technology used in the referred plant (Jig/HM Separation/Spiral/Flotation/combination thereof).
59. The requirement to fulfill the same by one or the other bidders with respect to the condition stipulated under clause 10.2.1B is the qualification which is to be required for the purpose of having 23 WPC No.4859/2024 experience of operation and maintenance (O&M) of the Coal/Mineral Beneficiation plant.
60. The word starts, as would appear from clause 10.2.1(B) that the Bidder/ Associate(s) shall have the experience of operation and maintenance and as such, the word "shall" referred in the aforesaid clause will be said to be mandatory. The same will also be said to be mandatory by taking into consideration, the very nature of the work which is for setting up of New Sawang coking coal washery on BOO Concept.
61. The work consists of Planning, Design & Engineering, Selection of necessary equipment and machinery, procurement, delivery, erection/ installation along with all associated civil & structural works, testing, successful commissioning of coal washing plant including PGT with two years' critical spares, works required for completion of entire project even if not specifically mentioned and all allied activities as well as its subsequent operation & maintenance to produce washed/clean coal and washed coal (power) of requisite quality & quantity, as would be evident from the reference made under Scope of Work in the very first page of bid document, for ready reference, the relevant part of the same is being referred as under:-
"Setting up of New Sawang coking coal washery (1.5 Mtpa) at Kathara area, CCL on BOO Concept.
a. Scope of Work: The work consists of Planning, Design & Engineering, Selection of necessary equipment and machinery, procurement, delivery, 24 WPC No.4859/2024 erection/ installation along with all associated civil & structural works, testing, successful commissioning of coal washing plant including PGT with two years' critical spares, works required for completion of entire project even if not specifically mentioned and all allied activities as well as its subsequent operation & maintenance to produce washed/clean coal and washed coal (power) of requisite quality & quantity; their covered storage at washery site and delivery of washed/clean coal and washed coal (power) from their respective storage to the Sawang Railway siding (loading into Railway wagons) through Fast Loading System (FLS); conveying of washery 3rd product/ rejects to identified 3rd product/reject storage site adjacent to washery site"
62. This Court, after taking into consideration the reference of the nature of work and again considering the condition stipulated under clause 10.2.1B which speaks about the experience of operation and maintenance (O&M) of the Coal/ Mineral Beneficiation plant of minimum 0.5 Mtpa with Jig/HM Separation/Spiral/Flotation technologies or combination thereof for a continuous period of minimum 2 years in the last Eighteen (18) years, which impliedly goes to suggest and clarify the position that the experience of one or the other bidder is pre-requisite condition for the purpose of carrying out the work smoothly and for its completion.
63. The admitted fact herein is as per the pleading made in the writ petition as under paragraph-27 that certain documents have not been furnished as was to be brought by way of filing exhibit-7, as has 25 WPC No.4859/2024 been referred hereinabove, which are the necessary documents, which were to be submitted, i.e., a. Name of the Coal Washery/ Mineral Beneficiation Plant operated.
b. Material Handled.
c. Complete address of the plant.
d. Plant capacity (in tonnes per annum).
e. Whether the operated Coal Washery/ Mineral Beneficiation Plant is owned by bidder/Associate/Client.
f. Name of the Client (if owned by client, else N.A.). g. Ref. No. & Date of Award of Work for operation (if owned by Client, else N.A).
h. Whether the scope of work for the reference plant included Operation of Plant and Maintenance of Plant.
i. Maximum Quantity of Raw Coal/ Mineral (Tonnes) handled by the plant in any two consecutive years during last Eighteen (18) years. Quantity handled in two consecutive years should not be less than 10,00,000 (Ten lakh) tonnes.
j. Brief description of technology used in the referred plant (Jig/HM Separation/Spiral/Flotation/combination thereof).
64. The said condition, as has been considered hereinabove, to be mandatory and as such, if one or the other bidder is having no such condition, it cannot be said to be suitable for consideration of bid document at the technical assessment stage.
26 WPC No.4859/2024
65. However, here the case of the writ petitioner is that the said documents are there, but, it could not have been submitted within the scheduled time of 11:00 in the morning on the closure date, i.e., on 02.08.2024.
66. The writ petitioner, therefore, cannot question the propriety of the said condition, since, it is the admitted case of the writ petitioner that the said document was sought for and considering the same to be the mandatory requirement, the same has also been submitted but not within the scheduled time as scheduled by the respondent, which was by 11:00 in the morning on 02.08.2024, rather, the same was submitted at 11:00 in the night on 02.08.2024, therefore, writ petitioner is admitting the fact that there is non-compliance of the condition stipulated under condition no.10.2.1(B) read with condition no.17.0(vi).
67. Therefore, what has been argued on behalf of the writ petitioner that by taking the second part of Clause 17.0(vi) that such condition even if was not there, the same will be said to be not primary for the purpose of rejection of candidature of the writ petitioner.
68. But, this Court is not in agreement with such submission, reason being by taking into consideration the very nature of the work and the bidder on their own wisdom has put the condition by inserting the condition to assess one or the other bidder based upon the experience and that is the reason, the condition has been 27 WPC No.4859/2024 stipulated under condition no.10.2.1(A) as quoted and referred hereinabove.
69. The respondent-CCL, considering the nature of work, has taken the decision by inserting the condition of experience to the extent of experience of operation and maintenance (O&M) of the Coal/Mineral beneficiation plant of minimum 0.5 Mtpa with Jig/HM Separation/Spiral/Flotation technologies or combination, which admittedly at the time of submitting the bid document, has not been submitted by the writ petitioner, rather, on the basis of the clarification sought for regarding the submission of document which was not submitted at the first instance, has also not been submitted within the time schedule.
70. It has been submitted on behalf of the learned counsel for the respondent that after the closure of the time schedule, i.e., on or after 11:00 a.m. on 02.08.2024, the acceptance of the further document as required under clause 17.0(vi) had been closed and the entire document has been sent for its further process to the CMPDI by 1:00 p.m.
71. Be that as it may, we are not concern as to when it was sent, rather, we are concern that when the time schedule for submitting the document as per the requirement stipulated under clause 17.0(vi) having admitted to be not adhered to, "whether in such circumstances, the petitioner can be said to have a right to seek a direction for consideration of his candidature, is the core question 28 WPC No.4859/2024 which is to be decided in addition to the question which has been referred as above."
72. The writ petitioner when is admitting that the said document has not been submitted within time but he has tried to impress upon the Court that even the said document will not be taken into consideration then also there will be no bearing of the consideration of the candidature of the writ petitioner.
73. As such, due to non-compliance of the condition, as stipulated under Clause 17.0(vi), the rejection of the technical bid, therefore, cannot be said to suffer from an error.
74. This Court, therefore, is of the view that proposition of law in this regard needs to be referred herein.
75. The Hon'ble Apex Court in the case of Ramana Dayaram Shetty vs. The International Airport Authority of India, reported in (1979) 3 SCC 489, wherein, it has been held that the condition stipulated in the bid is strictly to be adhered.
76. Further, the Hon'ble Apex Court in the case of G.J. Fernandez v. State of Karnataka (1990) 2 SCC 488, the principles laid down in Ramana Dayaram Shetty v. International Airport Authority of India, (supra) were reaffirmed. It was reaffirmed that the party issuing the tender (the employer) "has the right to punctiliously and rigidly" enforce the terms of the tender. If a party approaches a court for an order restraining the employer from strict enforcement of the terms of the tender, the court would decline to do 29 WPC No.4859/2024 so. It was also reaffirmed that the employer could deviate from the terms and conditions of the tender if the "changes affected all intending applicants alike and were not objectionable". Therefore, deviation from the terms and conditions is permissible so long as the level playing field is maintained and it does not result in any arbitrariness or discrimination. For ready reference, the relevant paragraph of the said judgment is being referred as under:-
"15. Thirdly, the conditions and stipulations in a tender notice like this have two types of consequences. The first is that the party issuing the tender has the right to punctiliously and rigidly enforce them. Thus, if a party does not strictly comply with the requirements of para III, V or VI of the NIT, it is open to the KPC to decline to consider the party for the contract and if a party comes to court saying that the KPC should be stopped from doing so, the court will decline relief. The second consequence, indicated by this Court in earlier decisions, is not that the KPC cannot deviate from these guidelines at all in any situation but that any deviation, if made, should not result in arbitrariness or discrimination. It comes in for application where the non- conformity with, or relaxation from, the prescribed standards results in some substantial prejudice or injustice to any of the parties involved or to public interest in general. For example, in this very case, the KPC made some changes in the time frame originally prescribed. These changes affected all intending applicants alike and were not objectionable. In the same way, changes or relaxations in other directions would be unobjectionable unless the benefit of those changes or relaxations were extended to some but denied to others. The fact that a document was belatedly entertained from one of the applicants will cause substantial prejudice to another party who wanted, likewise, an extension of time for filing a similar certificate or document but was declined the 30 WPC No.4859/2024 benefit. It may perhaps be said to cause prejudice also to a party which can show that it had refrained from applying for the tender documents only because it thought it would not be able to produce the document by the time stipulated but would have applied had it known that the rule was likely to be relaxed. But neither of these situations is present here. Shri Vaidyanathan says that in this case one of the applicants was excluded at the preliminary stage. But it is not known on what grounds that application was rejected nor has that party come to court with any such grievance. The question, then, is whether the course adopted by the KPC has caused any real prejudice to the appellant and other parties who had already supplied all the documents in time and sought no extension at all? It is true that the relaxation of the time schedule in the case of one party does affect even such a person in the sense that he would otherwise have had one competitor less. But, we are inclined to agree with the respondent's contention that while the rule in Ramana case [(1990) 2 SCC 486] will be readily applied by courts to a case where a person complains that a departure from the qualifications has kept him out of the race, injustice is less apparent where the attempt of the applicant before court is only to gain immunity from competition. Assuming for purposes of argument that there has been a slight deviation from the terms of the NIT, it has not deprived the appellant of its right to be considered for the contract; on the other hand, its tender has received due and full consideration. If, save for the delay in filing one of the relevant documents, MCC is also found to be qualified to tender for the contract, no injustice can be said to have been done to the appellant by the consideration of its tender side by side with that of the MCC and in the KPC going in for a choice of the better on the merits. The appellant had no doubt also urged that the MCC had no experience in this line of work and that the appellant was much better qualified for the contract. The comparative merits of the appellant vis-a-vis MCC are, however, a 31 WPC No.4859/2024 matter for the KPC (counselled by the TCE) to decide and not for the courts. We were, therefore, rightly not called upon to go into this question."
77. Further, in the case of Central Coalfields Ltd. vs. SLL-SML (Joint Venture Consortium), (2016) 8 SCC 622 the Hon'ble Apex Court has observed that the terms of NIT cannot be ignored as being redundant or superfluous. For ready reference, the relevant paragraph is being referred as under:-
"47. The result of this discussion is that the issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. As held in Ramana Dayaram Shetty [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489] the terms of NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular [Tata Cellular v. Union of India, (1994) 6 SCC 651] there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision-making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone or a decision "that no responsible authority acting reasonably and in accordance with relevant law could have reached" as held in Jagdish Mandal [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517] followed in Michigan 32 WPC No.4859/2024 Rubber [Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216]."
78. It needs to refer herein that the power of judicial review which is to be exercised by the High Court under Article 226 of the Constitution of India, can only be exercised if there is error in the decision making process or the exercise is irrational or arbitrary, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of Raunaq International Ltd. Vrs. I.V.R. Construction Ltd. & Ors., [(1999)1 SCC 492], the Hon'ble Apex Court while dealing with the issue of scope of judicial review has laid down by holding therein that the decision-making process suffers from bias of arbitrariness the same will be scrutinized under the power of judicial review.
79. The law relating to award of contract by the State and public sector corporations was reviewed by the Hon'ble Apex Court in the case of Air India Ltd. v. Cochin International Airport Ltd., reported in (2000) 2 SCC 617 wherein it has been observed that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction and it can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation.
80. It was further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process, the court must exercise its discretionary powers under 33 WPC No.4859/2024 Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should interfere.
81. In Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd., (2005) 6 SCC 138 the Hon'ble Apex Court has observed that while exercising power of judicial review in respect of contracts, the court should concern itself primarily with the question, whether there has been any infirmity in the decision-making process. By way of judicial review, the court cannot examine details of terms of contract which have been entered into by public bodies or the State.
82. In the case of Jagdish Mandal Vrs. State of Orissa & Ors. [(2007) 14 SCC 517], it has been laid down by the Hon'ble Apex Court that the power of judicial review in the contractual matters is permissible only if, (I) the process adopted or decision made is mala fide or intended to favour someone or the same is so arbitrary and irrational that the court can say: 'the decision is such that no responsible authority acting reasonably and in accordance with law could have reached.' (II) public interest is affected.
83. For ready reference, the relevant paragraph of the aforesaid judgment is being quoted as under:-
"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, 34 WPC No.4859/2024 unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold."
84. In the case of Michigan Rubber (India) Ltd. v. State of 35 WPC No.4859/2024 Karnataka (2012) 8 SCC 216] the Hon'ble Apex Court has observed that if the State or its instrumentalities acted reasonably, fairly and in public interest in awarding contract, interference by court would be very restrictive since no person could claim fundamental right to carry on business with the Government. Therefore, the courts would not normally interfere in policy decisions and in matters challenging award of contract by the State or public authorities.
85. Further, the Hon'ble Apex Court in the case of Afcons Infrastructure Ltd. vs. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818, it was held that a mere disagreement with the decision- making process or the decision of the administrative authority is no reason for a constitutional court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional court interferes with the decision-making process or the decision. The owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.
86. This Court, based upon the discussion made hereinabove as also the admitted fact herein regarding non-compliance of the condition stipulated in the bid document, is of the view that this Court 36 WPC No.4859/2024 cannot come to the conclusion that there is any error in the decision making process, reason being that, it is fault committed on the part of the petitioner in not complying the part of the condition stipulated in the bid document.
87. The further consideration has been made by this Court that if the condition stipulated in the bid document has not been adhered to, whether in granting any relaxation in the same, will amount to violation of principle laid down under Article 14 of the Constitution of India, since, acceptance of candidature of such bidders will only amount to relaxation, which is not permissible.
88. The question which has been raised on behalf of the writ petitioner that the price which has been quoted by the successful bidder which is in much higher side and as such, on that ground also the candidature of the petitioner is to be considered but this Court is of the view that the question of consideration of price of one or the other bidders is the consequence and only to be considered after one or the other bidders having found to be successful in the technical bid.
89. This Court has also considered the issue that when the fact about non-fulfilling the requirement within time schedule as per Clause stipulated under clause 17.0(vi), in such circumstances, the petitioner when admitting the negligence committed on his part, he cannot be allowed to avail the advantage of its own wrong.
90. The aforesaid aspect of the matter has been taken into 37 WPC No.4859/2024 consideration by the Hon'ble Apex Court in the case of Sorath Builders Vrs. Shreejikrupa Buildcon Limited & Anr., reported in (2009) 11 SCC 9, wherein, at paragraph27, it has been held that the respondent no.1 was negligent and was not sincere in submitting his pre-qualification documents within the time schedule laid down despite the fact that he had information that there is a time schedule attached to the notice inviting tenders. Despite being aware of the said stipulation he did not submit the required documents within the stipulated date. Pre-qualification documents were received by respondent 2 University only after the time schedule was over. The terms and conditions of the tender as held by the Supreme Court are required to be adhered to strictly, for ready reference, paragraph-27 of the said judgment is being referred as under:-
"27. Following the aforesaid legal principles laid down by this Court, we are of the considered opinion that Respondent 1 was negligent and was not sincere in submitting his pre-qualification documents within the time schedule laid down despite the fact that he had information that there is a time schedule attached to the notice inviting tenders. Despite being aware of the said stipulation he did not submit the required documents within the stipulated date. Pre-qualification documents were received by Respondent 2 University only after the time schedule was over. The terms and conditions of the tender as held by the Supreme Court are required to be adhered to strictly, and therefore, Respondent 2 University was justified in not opening the tender submitted by Respondent 1 on 1-12-2008, which was late by three days. According to us no grievance could also be made by Respondent 1 as lapse was due to his own fault."
91. Herein also, applying the said principle, the petitioner is also not aware to the time schedule which is the admitted case of the writ 38 WPC No.4859/2024 petitioner and as such, he became negligent and was not sincere in submitting his pre-qualification documents and as such, this Court is of the view that no such indulgence can be granted to the writ petitioner for consideration of the bid documents.
92. This Court, on consideration of the factual and legal issues as referred hereinabove, is of the view that no positive direction can be passed in favour of the writ petitioner.
93. Accordingly, the instant writ petition fails and is, dismissed.
(Sujit Narayan Prasad, A.C.J.) (Sanjay Kumar Dwivedi, J.) Rohit/-A.F.R. 39 WPC No.4859/2024