Karnataka High Court
Rajvaibha Enterprises (P) Limited vs The State Of Karnataka on 12 July, 2022
Author: S.G. Pandit
Bench: S.G. Pandit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JULY 2022
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION No.12717/2022 (GM-TEN)
BETWEEN:
RAJVAIBHA ENTERPRISES (P) LIMITED
A COMPANY INCORPORATED UNDER THE
PROVISIONS OF THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT NO.105
R R TAKT, 37 BHOOPASANDRA MAIN ROAD
SANJAYNAGAR, BANGALORE-560094
REPT. HEREIN BY ITS MANAGING DIRECTOR
MR. NARAYANDAS R JAJU.
...PETITIONER
(BY SRI PRATIK PANY, ADV. FOR
SRI ABHILASH RAJU, ADV.)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF ENERGY
VIKAS SOUDHA
BANGALORE -560001
REPT. BY ADDITIONAL CHIEF SECRETARY.
2. BANGALORE ELECTRICITY SUPPLY
COMPANY LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE
COMPANIES ACT, 1956
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HAVING ITS REGISTERED OFFICE AT
K R CIRCLE, BANGALORE- 560001
REPT. BY GENERAL MANAGER (PROCUREMENT).
3. THE E-PROCUREMENT CELL CENTRE FOR E-
GOVERNANCE
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS
GOVERNMENT OF KARNATAKA
ROOM NO.141, GATE NO 2
M S BUILDING, DR. AMBEDKAR VEEDHI
BANGALORE -560001
REPT. BY ITS CHIEF EXECUTIVE OFFICER.
...RESPONDENTS
(BY SRI M VINOD KUMAR, AGA FOR R1 & R3
SRI S SRIRANGA, SR.COUNSEL A/W
SRI ARIHANT R SUNGAY, ADV. FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO DIRECT R2 TO
PERMIT THE PETITIONER TO PARTICIPATE IN THE ENTIRE
TENDER PROCEEDINGS BY SUBMITTING THE FINANCIAL BID IN
HARD COPY WITH RESPECT TO THE TENDER BEARING
NOS.BESCOM/BCP-1404/2022-23, BESCOM/BCP-1402/2022-
23, BESCOM/BCP-1403/2022-23 MARKED AND PRODUCED AT
ANNEXURE-C, D & E AND ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:-
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ORDER
The petitioner, a small scale industry, who could not upload its tender/offer pursuant to tender notification (Annexure-C) dated 06.06.2022, is before this Court under Article 226 of the Constitution of India praying for a direction to the 2nd respondent to permit the petitioner to participate in the entire tender proceedings by submitting a financial bid in hard copy with respect to the Tender bearing Nos.BESCOM/BCP-1404/2022-23, BESCOM/BCP-1402/ 2022-23, BESCOM /BCP-1403/2022-23 marked and produced at Annexures-C, D and E and to direct the 2nd respondent to amend/modify Clause 4(4) and 4(7) to the extent that it is non-discriminatory and encourage fair competition between the MSME Enterprises and other large industries.
2. Heard Sri Pratik Pany, learned counsel for Sri Abhilash Raju, learned counsel for the petitioner and Sri M. Vinod 4 Kumar, learned Additional Government Advocate for respondents 1 and 3, as well as Sri S. Sriranga, learned Senior Counsel along with Sri Arihant R. Sungay for 2nd respondent. Perused the writ petition papers.
3. Learned counsel for the petitioner would submit that the 2nd respondent under Annexure-C invited tenders through e-procurement portal for supply of 9 Meter Long 300 Kg W/L PSCC Poles. The bid documents were available from 06.06.2022 and the last date for submission was 21.06.2022 which was extended up to 24.06.2022. It is the grievance of the petitioner, that on 24.06.2022 at 2.30 p.m. the petitioner tried to upload the offer of the tender, but petitioner could upload technical bid and at the stage of uploading the finacial bid, due to technical glitch the petitioner could not upload the financial bid. Therefore, the petitioner is before this Court seeking for the above direction to accept the financial bid in hard copy.
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4. Learned counsel for the petitioner contends that petitioner is not responsible for the technical glitch of the 2nd respondent server; that the petitioner should not be penalized and should not be denied opportunity to participate in the tender process. Further he submits that the 2nd respondent ought to have ensured submission of bids atleast up to 3.15 p.m., on 24.06.2022. Learned counsel for the petitioner submits that petitioner could upload the technical bid along with EMD amount. Learned counsel invites attention of this Court to Annexures-J, K and L produced along with the application I.A.No.2/2022 for additional documents, to establish payment of EMD of Rs.18.00 Lakhs with the 2nd respondent-BESCOM. He also invites attention of this Court to Bank Statement (Annexure-P) dated 28.06.2022, wherein it indicates payment to the 2nd respondent-BESCOM. Learned counsel in support of his contention relies upon the decision of this Court in SCANIA COMMERCIAL VEHICLES INDIA PRIVATE LIMITED Vs. GOVERNMENT OF KARNATAKA reported 6 in (2017) 1 Kant LJ 357. He submits that it was a case, where the petitioner therein uploaded the technical and financial bid and when the sign and encryption was attempted using the digital signature, a message 'unexpected error' was displayed. Though the draft had been uploaded the process was not completed due to error. In the above circumstances, this Court directed the respondent therein to access the bid submitted and on accessing to consider it as the bid submitted, without permitting any other addition or alterations and evaluate the same.
5. Learned Senior Counsel for the 2nd respondent- BESCOM submits that petitioner cannot be permitted to submit hard copy of the financial bid. He submits that admittedly the petitioner has not uploaded the financial bid. Unless both technical and financial bid are uploaded, it would not be a complete tender document. He further invites attention of this Court to the affidavit filed by the General Manager of the 2nd respondent-BESCOM and submits that 7 petitioner has failed to upload the entire technical bid and financial bid. The respondents have received only part of the technical bid, which is incomplete. He submits that Sections 6 and 7 of the Karnataka Transparency in Public Procurements Act, 1999, (for short 'the 1999 Act') would not permit receipt of technical and financial bid in hard copy and that the 2nd respondent could receive the bids only through e- portal. Further learned Senior Counsel submits that petitioner waited till the last minute to upload the bid. Learned Senior Counsel inviting attention of this Court to tender conditions submits that BESCOM would not be responsible for not getting the internet connection or for any technical glitch, while uploading their offers. Learned Senior Counsel would submit that last date for submitting the offer was 21.06.2022, which was extended up to 24.06.2022. The petitioner waited till 24.06.2022 and tried to upload his bid at the last minute i.e., at 2.30 p.m. It is his submission that even though the documents were available from 06.06.2022, 8 the petitioner attempted to upload the offer only at the last moment.
6. In support of his contention learned Senior Counsel would rely upon the decision of the Division Bench of the Delhi High Court in BVG INDIA Vs. NORTH DELHI MUNICIPAL CORPORATION AND ANOTHER, reported in 2021 SCC Online DEL 4360, to contend that if the petitioner fails to upload within the time permitted for uploading the bid, the bid of the petitioner cannot be considered as valid bid. He also places reliance upon the decision of the Co-ordinate Bench of this Court in MAHINDRA SANYO SPECIAL STEEL PRIVATE LIMITED, MUMBAI Vs. UNION OF INDIA, reported in 2018 KAR 5587.
7. After hearing the learned counsel for the parties, the only point that falls for consideration is as to 'When the petitioner failed to upload the tender documents in its entirety, whether the petitioner 9 need to be given an opportunity to submit his financial bid in hard copy ?
Answer to the above point would be in the negative. Petitioner cannot be permitted to submit his financial bid in hard copy.
8. Section 5 of 1999 Act prohibits procurement other than by tender. Section 6 requires procurement entity to invite tender in accordance with the procedure laid down in the 1999 Act and the Karnataka Transparency in Public Procurements Rules 2000 (for short 'the 2000 Rules'). Section 7 requires the State Government to set up and maintain a State Public Procurement Portal accessible to the public for posting and exhibiting the matters relating to public procurement. The State Government has set up State Public Procurement Portal. Sub-section (4) of Section 7 of the 1999 Act requires each procuring entity to carry out contract execution 10 management in the Karnataka Public Procurement Portal. Chapter V Rule 15 of the 2000 Rules reads as follows :-
Receipt of Tenders and Tender Opening
15. [Date] and time for receipt of tenders.- (1) The Tender Inviting Authority shall fix the last date and time for online submission of the tenders subject to the provisions provided under Rule 17.
(2) ******** (3) The Tender Inviting Authority may extend the last date and time for receiving tenders after giving adequate notice [on the Karnataka Public Procurement Portal] where,-
(a) the publication of the tender notice has been delayed;
(b) the communication of changes, in the tender documents to the prospective tenderers under Rule 14 took time;
(c) any other reasonable grounds exist, for such extension which shall be recorded in writing by the Tender Inviting Authority.
(4) (a) The Tenderers shall digitally sign their bids with their valid Digital Signature Certificate (DSC) as 11 issued under the Information Technology Act, 2000 (Central Act No.21 of 2000); and
(b) It shall be the responsibility of the tenderers to ensure that their tender is submitted in the Karnataka Public Procurement Portal within the last date and time specified for the receipt of the tenders.] A reading of the above Rule makes it clear that the tender inviting authority shall fix the last date and time for online submission of tenders. Sub-Rule (4)(a) and (b) of the 2000 Rules, makes it abundantly clear that the tenderers shall digitally sign their bids with their valid digital certificate and it shall be the responsibility of the tenderers to ensure that their tender is submitted in the Karnataka Public Procurement Portal within the last date and time specified for receipt of the tenders.
9. In the case on hand, the 2nd respondent issued tender notification calling tenders for supply of 9 Meter Long 300 Kgs W/L PSCC Poles under Annexure-B. The bid documents were made available from 06.06.2022 and the last date for 12 submission of bids initially was 21.06.2022 and the same was extended up to 24.06.2022 till 15.15 hours. Even though the bid documents were available from 06.06.2022, the petitioner tried to submit his bid only on 24.06.2022 at 2.30 p.m. at the last hour. The writ petition averment itself makes it clear that petitioner submitted its technical bid successfully at around 2.30 p.m. and while uploading the financial bid, the petitioner noticed the web page to load very slowly, either due to multiple active participants or developing a technical snag. Further it is also averred that "However, petitioner after multiple tries was able to upload the financial bid, but the DSC to authorize the financial bid, did not load. When the petitioner was unsuccessful even after trying every method advised by the help desk, wrote to General Manager (Procurement) regarding the same and requested for extension of time, otherwise sought permission to submit the hard copy of the financial bid."
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From the above extracted petition averments it is clear that petitioner could not upload the financial bid and he has sought permission to submit the hard copy of financial bid. In terms of Rule 15(4)(b) of 2000 Rules, it shall be the responsibility of the tenderer to ensure that their tender is submitted to the Karnataka Public Procurement Portal within the last date and time specified for receipt of the tenders. Moreover, Section 7(4) of the 1999 Act requires the procurement entity to carry out contract execution management in the Karnataka Public Procurement Portal. Unless one uploads the tender documents in its entirety i.e., technical bid and financial bid along with necessary documents, it would not be a valid bid. Since the petitioner has not uploaded the financial bid, the bid of the petitioner is not a valid bid. The 1999 Act and the 2000 Rules mandate the procurement entity to receive tender only through the Karnataka Public Procurement Portal and it would not permit receiving of hard copy of tender.
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10. Reliance placed by the petitioner's counsel on the decision in SCANIA COMMERCIAL VEHICLES INDIA PRIVATE LIMITED cited supra would not assist the cause of the petitioner. In the above cited case, the petitioner therein had uploaded the draft and at the time of uploading the Digital Signature, error had occurred in uploading. In that circumstances, since the entire tender document in draft was uploaded, the Co-ordinate Bench of this Court directed the authorities to access the bid submitted by the petitioner therein, without permitting any other additions or alterations. In the case on hand, the petitioner had not uploaded neither the draft nor fair of tender documents in its entirety. It is the case of the petitioner itself that the petitioner could not upload the financial bid. In that circumstance, the above cited decision would not assist the petitioner in any way.
11. Learned Senior Counsel appearing for the 2nd respondent placed reliance on the decision of the Division 15 Bench of the Delhi High Court in BVG INDIA case cited supra to say that technical glitch at the last minute is not a ground for interference under writ jurisdiction. In the said case also, it was a case where the petitioner therein could not upload the financial bid in time and it was contended that for the technical glitch, the tenderer cannot be held responsible and he cannot be made to suffer. The said contention was rejected on the ground that petitioner therein could not have waited for uploading the bid till the last moment and it was the responsibility of the bidder to ensure uploading of the bid in time. The Division Bench of this Court in MAHINDRA SANYO case cited supra has held that online bid and experts evaluation that the online bid submitted was not successful, cannot be subject matter of writ under Article 226 of the Constitution of India.
12. The General Manager of the 2nd respondent has filed affidavit dated 29.06.2022 wherein he has categorically sworn that none of the documents stated to have been uploaded by 16 the petitioner, are available to download on the e-procurement portal, which is maintained by 3rd respondent.
13. For the reasons recorded above, I do not find any merit in the writ petition, accordingly the writ petition stands dismissed.
Sd/-
JUDGE NG* CT:bms