Gauhati High Court
Technip Energies India Ltd vs The Union Of India And 3 Ors on 30 January, 2023
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/12
GAHC010003342023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/96/2023
TECHNIP ENERGIES INDIA LTD.
(FORMERLY TECHNIP INDIA LIMITED),
THROUGH ITS AUTHORIZED REPRESENTATIVE,
PRASHAT SHARMA,
S/O- BRIJ MOHAN SHARMA,
HAVING ITS OFFICE AT TECHNIP TOWER,
A-4, SECTOR-1,
NOIDA, UTTAR PRADESH- 201301.
VERSUS
THE UNION OF INDIA AND 3 ORS.
THROUGH MINISTRY OF PETROLEUM AND NATURAL GAS,
A-WING, SHASTRI RAJENDRA PRASAD ROAD,
110001, AZAD BHAWAN RD, IP ESTATE,
NEW DELHI, DELHI- 110002.
2:NUMALIGARH REFINERY LIMITED
THROUGH ITS MANAGING DIRECTOR
HAVING ITS REGISTERED OFFICE AT 122A
G.S. ROAD
CHRISTIAN BASTI
GUWAHATI- 781005 AND ALSO HAVING OFFICE AT GOLAGHAT
NUMALIGARH
ASSAM
785699.
3:M/S THYSSENKRUPP INDUSTRIAL SOLUTIONS (INDIA) PRIVATE
LIMITED
Page No.# 2/12
THROUGH ITS PROJECT PROCUREMENT MANAGER
SUSHANT DESHPANDE/ AMAR SONSALE
HAVING ITS REGISTERED OFFICE AT 154 C
MITTAL TOWER
15TH FLOOR
210
NARIMAN POINT
MUMBAI- 400021
INDIA.
4:G.R. ENGINEERING PROJECTS PRIVATE LIMITED
THROUGH GR ENGINEERING PROJECTS PVT. LTD.
366 DDA FLAT
BADARPUR
NEW DELHI 110044
Advocate for the Petitioner : MR D DAS
Advocate for the Respondent : DY.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 30.01.2023 Heard Mr. D. Das, learned Senior Counsel assisted by Mr. A. Khanna, learned counsel for the petitioner; Ms. R. Devi, learned Central Government Counsel for the respondent no. 1; Mr. N. Deka, learned counsel for the respondent no. 2 and Mr. U.K. Nair, learned Senior Counsel assisted by Mr. N.N. Dutta, learned counsel for the respondent no. 4.
2. The petitioner has invoked the extra-ordinary jurisdiction of this Court Page No.# 3/12 under Article 226 of the Constitution of India to assail an action of the respondent no. 2 i.e. M/s Numaligarh Refinery Limited and the respondent no. 3, M/s Thyssenkrupp Industrial Solutions [India] Private Limited to reject its bid submitted in response to a Notice Inviting Tender [NIT] for 'Reactor and Regenerator [RXRG] Package' ['the subject-work', for short] after the Priced Bid opening stage on grounds purportedly covered by Clause F[i][h] read with Clause F[i][bbb] of the NIT. The fact of rejection of the Bid was communicated to the petitioner at 11-45 a.m. on 02.01.2023.
3. The facts which have led the petitioner to institute the writ petition, in a nutshell, is that the respondent no. 2 published the NIT for the subject-work as a Global Tender-Open Competitive Bidding under two bid system. Originally, the last date and time of submission of bid was up-to 15-00 Hours on 30.11.2022. The last date was, later on, extended to 07.12.2022. The Bids of the bidders were to be uploaded in the Government E-procurement System ['the Portal', for short]. As per the bid acknowledgement published on 07.12.2022, the Bid of the petitioner was successfully uploaded in the Portal. The Techno- Commercial Bid [also called interchangeably as 'Un-Priced Bid'] were opened on 24.12.2022. From the summary sheet [at Page 143 of the case papers], uploaded in the Portal, it is reflected that two bidders i.e. the petitioner and the respondent no. 4 had participated in the bidding process and their Techno- Commercial Bids were accepted. The respondent no. 3 is the Consultant for the respondent no. 2 for the subject-work. As per Tender Summary Reports generated by the Government E-Procurement System i.e. the Portal, the Priced Bids of the two bidders were sought to be opened on 26.12.2022. When the respondent no. 3 made attempts to see the contents of the Priced Bid of the petitioner it could not do so on 26.12.2022. The Comparative Statement, which Page No.# 4/12 was system generated on 26.12.2022, did not reflect the details of the Priced Bid of the petitioner. Then the petitioner received an e-mail on 12-18 p.m. on 27.12.2022 from the respondent no. 3 intimating that when it tried to open the Priced Bid BoQ Excel file of the petitioner for the subject-work, it was found that the Excel file did not open. The petitioner was requested to analyze and revert on how the BoQ Excel file could be opened to view the contents, as during the attempts made by the respondent no. 3, it was found seeking log-in credentials. The said e-mail was with a caveat that the request to enable opening of the Priced BoQ Excel file must not be construed in any way to mean that the Prices and/or the petitioner's offer would be used for further Bid Evaluation. It was informed that further bid evaluation, if any, shall be subject to the terms and conditions of the NIT and applicable law and the right was reserved to the respondent no. 2 to reject the petitioner's offer in accordance with tender provisions and applicable law. The petitioner responded to the said e-mail immediately on 14-20 Hours on 27.12.2022 stating that the BoQ Excel file could be opened from the petitioner's system without any issue or prompt and the petitioner expressed surprise as to why the Excel file did not open at the end of the respondent no. 3. At 04-40 p.m. on 27.12.2022, the respondent no. 3 responded to the petitioner stating that they were still unable to open the file till that time as the System reflected to the effect that there was no permission to open the workbook. Finally, BoQ Excel file containing the Priced Bid of the petitioner could be opened by the respondent no. 2 only after the petitioner provided the password for the said BoQ Excel file.
4. It is the case of the petitioner that the grounds shown for rejection of the Bid of the petitioner vide the e-mail dated 02.01.2023 [supra] are not available for the respondent no. 2 and the respondent no. 3 for rejection in Page No.# 5/12 terms of the clauses contained in the Bid Document/NIT in the fact situation obtaining in the case.
5. Notice is issued to the respondents. The notice is made returnable on 13.02.2023.
6. As Ms. Devi, learned Central Government Counsel has appeared and accepted notice on behalf of the respondent no. 1; Mr. Deka, learned counsel has appeared and accepted notice on behalf of the respondent no. 2; and Dutta, learned counsel has appeared and accepted notice on behalf of the respondent no. 4, no formal notice need to be issued to the said respondents. However, the learned counsel for the petitioner shall furnish an extra copy of the writ petition along with annexures, each to Ms. Devi, Mr. Deka and Mr. Dutta within 3 [three] working days from today.
7. The petitioner shall take steps for service of notice upon the respondent no. 3 by registered post with A/D. In addition, the petitioner is permitted to take steps for service on notice upon the respondent no. 3 by way of dasti and such steps shall be routed through the Registry of this Court. After effecting the service of notice by way of dasti upon the said respondent, a compliance affidavit to that effect shall be filed on or before the next date of listing.
8. Considering the nature of lis involved in the writ petition, it is expected that the contesting respondents will make endeavor to file their respective counter affidavits within 10 days from today.
9. Heard the learned counsel for the parties also on the interim prayer as the petitioner has sought for a stay of the proceedings in connection with the Page No.# 6/12 subject-work initiated by the NIT, referred above.
10. Mr. Das, learned Senior Counsel for the petitioner has referred, at the very beginning, that there are only two bidders in the bidding process and consideration of the Priced Bid of the petitioner would not cause any prejudice to any of the respondents including the respondent no. 4.
11. The learned counsel for the parties have referred to Clause F [i][h], F [x], F [ss], F[tt], F [bbb], F[eee], F [eee][c] of the Bid Document during the course of their submissions. References have been made also to Clause 30.3, Clause 34 including Clause 34.3, Clause 39.3, Clause 41 and appendix A [Instruction over On-Line Bid submission], more particularly, 'Submission of Bids'.
12. Clause F[i][h] which deals with the Bidding Document stipulated that in order to maintain confidentiality of all documents and drawings submitted by the Bidder in response to its Un-Priced Bid [Techno-Commercial Bid], the Bidders shall upload only Password Protected PDF Files only in the Portal and for ease, the same Password shall be used for all the uploaded PDF documents, which [Password] will be subsequently shared to the officials of the respondent no. 2/the respondent no. 3 as per the details mentioned at Serial no. 21 of the NIT. Clause F [bbb] had provided that the Bidders shall ensure submission of correct File Format in the Portal. In case the respondent no. 2/respondent no. 3 cannot open the Bids due to corrupt bid files/formats, the offer shall be liable to be rejected.
13. Mr. Das, learned Senior Counsel for the petitioner has submitted that there was no ground for the respondents to reject the Bid of the petitioner on Page No.# 7/12 the ground that the Priced Bid of the petitioner was contained in a corrupt bid file/format and, as such, Clause F [bbb] is not available to the respondents for rejection of the Bid of the petitioner. It is further submitted by him that only the Techno-Commercial Bid [Un-Priced Bid] of a bidder was to be in a Password Protected PDF File, as per Clause F[i][h]. As per Clause F [x], all communications other than the Techno-Commercial Bid [Un-Priced Bid] was to be made outside the Portal and for that reason, the respondent no. 3 sought the clarification from the petitioner by the e-mail dated 27.12.2022 asking the petitioner the reason for non-opening of the BoQ Excel file containing its Priced Bid. The opening of the Priced Bids of the bidders would be further evaluated and thereafter, the final decision of the Bids is to be arrived. As such, the rejection of the Bid of the petitioner on the ground that its Priced Bid could not be opened on 26.12.2022 along with the bid of the respondent no. 4 is not tenable as the opening of the Priced Bid of the petitioner even on a later date is not going to cause any prejudice to either to the Tendering Authority [the respondent no. 2] or to the only other participant bidder i.e. the respondent no. 4 for the very reason that the Priced Bid once uploaded in the Portal, cannot be manipulated in any manner at a later point of time. From Clause F [ss], it is clear the Communication made subsequent to the date of opening of the Priced Bids in the form of e-mail dated 27.12.2022 was in the nature of seeking clarification from the end of the Tendering Authority, meaning thereby, the Bid of the petitioner did not result in rejection at the time when the e-mail on 27.12.2022 was sent. But despite being able to open the BoQ Excel file containing the Priced Bid of the petitioner by the respondent no. 2 immediately on 27.12.2022, the Bid of the petitioner was arbitrarily rejected on 02.01.2023 by the e-mail on even date.
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14. The submissions advanced on behalf of the petitioner have been opposed by the learned counsel appearing for the respondent no. 2 and the respondent no. 4. It is the common submission of the learned counsel for the said respondents that as per Clause 29 [Examination of Bids and Determination of Responsiveness], the respondent no. 2/respondent no. 3 were required to examine the Bids to determine whether they were complete and whether the Bids were generally in order. Prior to the detailed evaluation, they would determine whether each Bid was of acceptable quality, was generally complete and was responsive to the tender. For the purpose of such determination, a responsive bid was one that conformed to all the terms, conditions and specifications of the Bid document without deviations, objections, conditionality or reservations. It is submitted that after opening of the Techo-Commercial Bids [Un-Priced Bids], the time and date of opening of the Priced Bids were declared in advance. It is their case that the Priced Bids submitted by the Bidders, uploaded in the Portal, were to be automatically opened as the same was only System generated. There was and could not be any manual intervention at the stage of opening of the Priced Bids. The System automatically generated the Comparative Statement on its own and when the System-generated Comparative Statement was looked at, it was found that only the figures/contents submitted by the respondent no. 4 in its Priced Bid were reflected and the figures/contents stated to be submitted by the petitioner in its Priced Bid were not reflected. In such situation, the correspondence was initiated by the respondent no. 3 i.e. the Consultant for the bidding process, with the petitioner seeking clarification as to why the BoQ Excel file stated to be uploaded by the petitioner could not be opened with the caveat that such request was not to be construed in any manner to mean that the Bid of the Page No.# 9/12 petitioner would be used for further Bid Evaluation. It is the submission on behalf of the respondent no. 2 that initiation of such correspondence was to check as to whether the cause of non-opening of the BoQ Excel file, containing the Priced Bid of the petitioner, stated to be uploaded by the petitioner successfully, was attributable at the ends of the Tendering Authority [the respondent no. 2] or the respondent no. 3 [the Consultant].
15. Mr. Das, learned Senior Counsel for the petitioner has placed reliance in the decision of the Hon'ble Supreme Court of India in G.J. Fernandez vs. State of Karnataka and others, reported in [1990] 2 SCC 488, Para : 15, to buttress his submission that a bid of a bidder should receive due and full consideration, if no prejudice is likely to be caused to anyone for any purportedly slight deviation. Mr. Nair, learned Senior Counsel for the respondent no. 4 has, on the other hand, referred to the decision of the Hon'ble Supreme Court of India in Airport Authority of India vs. Centre for Aviation Policy, Safety & Research [CAPSR] and others, reported in 2022 SCC Online SC 1334, Paras :
27, 28, 29, 30 & 31, to submit that if there is no obligation on the part of the Tendering Authority to accept which was not in conformity with the terms and conditions of the NIT.
16. Having heard the learned counsel for the parties on the interim prayer, this Court has noticed that the Techno-Commercial Bid [Un-Priced Bid] of both the petitioner and the respondent no. 4 were accepted on 24.12.2022 and their Priced Bid was to be evaluated on 26.12.2022, as scheduled. When at the scheduled time, the Priced Bids of the two bidders were sought to be generated at the Portal, only the details of the Priced Bid of the respondent no. 4 were generated by the Portal and the details of the Priced Bid, submitted by the Page No.# 10/12 petitioner, were not reflected in the System generated Comparative Statement. From the materials brought on record it has prima facie emerged that the Priced Bid of the petitioner could not be opened due to the result that the BoQ Excel file containing the Priced Bid, uploaded by the petitioner, was Password protected. It was only after the petitioner provided the Password to the respondent no. 2 subsequent to the e-mail dated 27.12.2022 sent from the end of the respondent no. 3, the BoQ Excel file containing the Priced Bid of the petitioner could be accessed by the respondent no. 2. The said fact was communicated by the respondent no. 2 to the respondent no. 3 thereafter. It is the contention of the respondents that in the Portal i.e. Government E- procurement System, the details of the Priced Bid of the petitioner are still not reflected, as on this date, for the fact that the same is Password protected. Since the time and date of opening of the Priced Bid of the participant bidders for the subject-work were known to the participants beforehand, it was incumbent for the participant bidders to make sure that their respective Bids could be accessed by the Portal i.e. Government E-procurement System automatically without any hindrance, to enable the Tendering Authority i.e. the respondent no. 2 and the respondent no. 3 [the Consultant] to proceed with the process of Bid evaluation. From the materials brought on record, it has prima facie emerged that the Priced Bid of the petitioner, stated to be uploaded in the E-procurement portal, could not be accessed in an automatic manner resulting in non-reflection of the details of its Priced Bid in the System Generated Comparative Statement. In a bidding process, the principal requirement is that the Tendering Authority should be able to access all the Priced Bid of the participant bidders at the same time to proceed ahead with the process of evaluation. The reason for not opening the Priced Bid of the petitioner was due Page No.# 11/12 to the fact that the BoQ Excel file uploaded by the petitioner was kept Password protected at its end and the same is prima facie suggestive of the situation that it was at the disposal of the petitioner as a participant bidder to correct the said mistake prior to the scheduled date and time of opening of the Priced Bids for the subject-work i.e. on or before 26.12.2022, which was not done.
17. I have perused the clauses referred to by the learned counsel for the parties, contained in the NIT/Bid Document. In this connection, one may refer to the following observations of the Hon'ble Supreme Court of India in West Bengal State Electricity Board vs. Patel Engineering Co. Ltd. and others , reported in [2001] 2 SCC 451, Para 27, when relief was sought for in equity on the ground of mistake on the part of a bidder :- [1] where the mistake might have been avoided by the exercise of ordinary care and diligence on the part of the bidder; but where the offeree of the bid has or is deemed to have knowledge of the mistake, he cannot be permitted to take advantage of such a mistake; [2] where the bidder on discovery of the mistake fails to act promptly in informing to the authority concerned and request for rectification, withdrawal or cancellation of bid on the ground of clerical mistake is not made before opening of all the bids; [3] where the bidder fails to follow the rules and regulations set forth in the advertisement for bids as to the time when bidders may withdraw their offer; however where the mistake is discovered after opening of bids, the bidder may be permitted to withdraw the bid.
18. Having duly considered to all the fact situation obtaining in the case, as noted above, more particularly, the prima facie reason for which the Priced Bid of the petitioner could not be opened at the Scheduled time and date, I am not inclined to pass any interim order, as sought for by the petitioner, at this stage staying the proceeding of the bidding process in connection with the Page No.# 12/12 subject-work. It is, however, observed that the bidding process for the subject- work challenged herein, shall be subject to further orders of this Court.
JUDGE Comparing Assistant