Calcutta High Court
Madho Das Mundhra vs Railtel Corporation Of India Ltd. & Anr on 25 September, 2020
Author: Subrata Talukdar
Bench: Subrata Talukdar
ORDER SHEET
WPO/281/2020
IA NO: GA/1/2020
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
MADHO DAS MUNDHRA
Versus
RAILTEL CORPORATION OF INDIA LTD. & ANR.
BEFORE:
The Hon'ble JUSTICE SUBRATA TALUKDAR
Date : 25th September, 2020.
For Petitioner : Mr. Suddhasatva Banerjee with
Mr. Ashis Kumar Mukherjee, Mr. Sourojit Dasgupta
and Mr. Saurabh Prasad, Advs.
For Respondents : Mr. Vikash Baisya, Adv.
Party/parties is/are represented in the order of their name/names as printed above in the cause title.
Mr. Banerjee, learned counsel appearing for the petitioner, submits that the petitioner is an intending participant in the tender floated by the respondent No.1/Railtel Corporation of India Limited (for short, "the Corporation"). The tender has been floated on 26th August 2020 for different sections of the Railways throughout the country to upgrade the signalling infrastructure of the Railways.
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Mr. Banerjee relies on several provisions of the tender document to demonstrate that the tender terms are uncertain in nature. By way of example, learned counsel for the petitioner relies on Clause 11 of the tender conditions to demonstrate before this Court that the Corporation has reserved the right to add or delete any maintenance section / change the contract value at its discretion by providing for a percentage of margin connected to such change. Mr. Banerjee also relies upon Clause 26.3 of the Special Conditions of the Tender which, inter alia, enable the Executive Director of the Corporation to advise the contractor with regard to approximate value of the insurance cover to be taken by the intending bidder in the contract.
Relying on a decision as reported in (2007) 8 SCC 1, Mr. Banerjee submits that it is now judicially recognised that the bidder must enjoy a certain degree of certainty of understanding the bid conditions prior to being called upon to actually participate in the tender.
Learned counsel for the petitioner also relies upon Clauses (a), (iv) and (v) of the tender document dated 26th August, 2020 to point out that the tender, inter alia, provides an opportunity to the bidders to seek a clarification connected to the tender. Such clarification was sought for by the petitioner / intending bidder vide its letter dated 3rd September, 2020. 3
However, by a crisp reply dated 4th September, 2020, the Corporation merely stated that the tender document has been prepared by its Corporate Office and therefore, no clause can be changed at the request of the vendor/contractor. The petitioner was, accordingly, asked to participate in the bids.
Mr. Banerjee submits that such reply from the Corporation dated 4th September, 2020 does not satisfy the clause for seeking clarification as provided under Clauses (a), (iv) and (v) (supra) of the tender document dated 26th August, 2020.
Appearing on behalf of the respondents/the Corporation, Mr. Baisya, learned counsel, submits that the tender relates to sectional railway traffic management all over India and particularly the upgradation of the signalling system which cannot be held back on the basis of grievances raised by a sole intending bidder. It is submitted that the Corporation has worked out the terms of the tender after detailed research and this writ petition is premature since the bids are yet to be finalised. It is submitted that at present the technical bids have been opened and a period of 15 days is necessary for finalisation of the technical bids. After finalisation of the technical bids, the financial bids shall be opened.
Having considered the arguments and materials placed, this Court finds persuasive value in the submissions of the learned counsel for the 4 petitioner that the petitioner deserves clarification as sought for by his representation dated 3rd September, 2020. This Court also finds that uncertainty surrounding the tender terms, as pointed out by the petitioner, can only be removed by furnishing the petitioner a detailed clarification instead of a reply which merely reiterates the present position. This Court thus finds that the tender requires clarification at the threshold for any bidder to submit a bid with certainty as judicially expressed in (2007) 8 SCC 1 (supra).
In the backdrop of the above discussion and without intending to hold back a public project beyond what is strictly necessary for the ends of adjudication, this Court sets aside the communication dated 4th September, 2020 and directs the Corporation to exhaustively reply to the petitioner's representation dated 3rd September, 2020 within a fortnight from the date of communication of this order by the petitioner.
It is expected that the above directed exercise shall be completed within the period the technical bid is scheduled for complete evaluation and prior to opening of the financial bid. In the event such exercise is satisfactorily attended to by both the parties, i.e. the corporation and the petitioner, the latter shall be permitted to bid within the outer time limit for evaluation of technical bids, enabling the Corporation to consider such bid along with other technical bids.
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Liberty to mention the matter for reporting subsequent developments strictly upon notice to the other side after the period indicated above is exhausted.
All parties are to act on a server copy of this order.
(SUBRATA TALUKDAR, J.) K. Banerjee A.R. [C.R.]