Allahabad High Court
Ziqitza Health Care Ltd. Thru. Its ... vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 20 December, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Judgment Reserved On - 19.11.2022
Judgment Delivered On - 20.12.2022
Court No. - 03
Case :- WRIT - C No. - 7917 of 2022
Petitioner :- Ziqitza Health Care Ltd. Thru. Its Authorized Representative Deepak Kharbanda
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Animal Husbandry Lko. And Another
Counsel for Petitioner :- Sunil Kumar Chaudhary,Kapil Misra
Counsel for Respondent :- C.S.C.
Hon'ble Attau Rahman Masoodi, J.
Hon'ble Om Prakash Shukla,J.
(Per Om Prakash Shukla, J.)
1. Heard Shri S.C. Mishra, learned Senior Counsel assisted by Shri Sunil Kumar Chaudhary, learned Counsel for the petitioner and Shri Ramesh Kumar Singh, learned Additional Advocate General assisted by Shri Rakesh Vajpayee, learned Additional Chief Standing Counsel for the State.
2. The present writ petition has come to be filed by the petitioner invoking the writ jurisdiction of this Court, thereby seeking two fold prayer; (i) quashing of order dated 07.11.2022 uploaded on the official website of the Department of Animal husbandry on 09.11.2022, whereby the bid submitted by the petitioner has been declared as non-responsive for the reason that the same did not meet the requirement of clause 12(c) of the RFP relating to the aspect of submission of EMD and (ii) challenge to the order dated 09.11.2022 has been also made, whereby the tender summary report was uploaded and the Department of Animal Husbandry has fixed the date of opening of financial bids on 10.11.2022 at 2:30 PM.
3. Since the financial bid of the bidders, who have been found to be qualified in the technical process were going to be considered in the after-noon of the same day, this court, as an interim measure vide its order dated 10.11.2022 had directed that the petitioner's financial bid be also included in the process of consideration, failing which the contract shall not be finalized without leave of this court.
4. The brief facts germane for deciding the present issue raised before this court lies in a narrow compass. The Government of India having envisaged its ambitious scheme relating to livestock health launched the "Livestock Health & Disease Control Scheme". The Operational Guidelines for Livestock Health and Disease Control was issued subsequently, which inter-alia imbibed the need for Establishing and Strengthening of Veterinary Hospitals and Dispensaries (ESVHD) and Mobile Veterinary Units (MVU). The State of Uttar Pradesh keeping in view the operational Guidelines and acting through the office of Director, Disease Control & Farms, Department of Animal Husbandry, Uttar Pradesh, Lucknow invited e-tender for hiring of services of support organizations to operationalize the Mobile Veterinary Unit (MVU) at different locations/ department institutions of the state of Uttar Pradesh along with establishment of call center.
5. Although a tender for operation of the aforesaid MVU was floated wherein the entire State was taken as a Unit for bid, however subsequently, a policy decision was taken by the state of Uttar Pradesh for regulating the effective operation of MVU and as such as per the new policy, the State of Uttar Pradesh was divided into five clusters/packages. It was envisaged in the policy that though any bidder can bid for any number of packages, but a successful bidder even if it is L-l in more than one Package will be given only one Package for operation depending upon his preference. Once, the said preference had been exercised, the other Package would go to L-2 bidder upon its choice, provided it agrees to work at the rates of L-1.
6. The policy being at place, the State of Uttar Pradesh through the Director, Disease Control & Farms, Department of Animal Husbandry, Uttar Pradesh, Lucknow, notified the Tender. Apparently, the Notice Inviting tender was issued on 02.09.2022 and the pre-bid meeting was slated to be on 09.09.2022 and the Bid due date was 03.10.2022. The Notice inviting Tender contained the time schedule for different stages as well as the important Conditions including the Condition of "Earnest Money Deposit (EMD)". The relevant extract from Notice inviting Tender is as under: -
Date of Issue of Tender Notice 02/09/2022 (5.00PM) Start date-downloading of online Tender Document 02/09/2022 (5.30PM) Pre-Bid Meeting 09/09/2022 (From 3.00PM to 6.00 PM) Uploading of corrigendum To be decided later.
Online submission date and tune (Bid Due Date) 07/10/2022 ( up to 2.00 PM) Offline submission of documents (Listed in Clause 14)- Last date and Time On or before date of opening of Technical Bids Time and Date of Opening of Technical Bids 07/10/2022 (4.00 PM) Time & Date of Opening of Financial Bid To be notified after completion of Technical Evaluation and approval from authority. Cost of tender/ tender Fee Rs. 25,000 (tender cost) + 4,500 (GST) = 29,500/- (Rupees Twenty Nine Thousand Five Hundred Only) (Inclusive tax 18%) through non-refundable Demand draft payable in favour of Director, Disease Control & Farms, Department of Animal Husbandry, Uttar Pradesh, Lucknow, payable at Lucknow. Earnest Money Deposit (EMD) EMD an amount of Rs. 3336260 (Rupees Thirty-Three Lakhs Thirty-Three Thousand Two Hundred Sixty Only) per Package through Banker's Cheque, Account Payee Demand Draft Bank Guarantee/FDR payable in favour of' Director, Disease Control & Farms, Department of Animal Husbandry, Uttar Pradesh, Lucknow, payable at Lucknow.
Performance Security The selected Bidder must have to submit an irrevocable and unconditional guarantee from a Bank for a sum equivalent to 3% of the contract value in the form of Performance security in terms specified in the LOA. The amount of EMD of selected bidders shall be released without interest.
7. The petitioner participated in the pre-bid meeting held on 09.09.2022 along with ten other entities, who sought explanation to their respective queries. The petitioner also sought explanation & clarification on certain issues and all such clarifications was uploaded on 24.09.2022 on the E-tender portal.
8. That the last date for submission of the tender was extended upto 12/10/2022 by corrigendum dated 06/10/2022 and the Technical Bids were opened on 12/10/2022. The Technical Evaluation Committee in its Meeting held on 07/11/2022 has taken the final decision on the technical bids of the bidders and the decision of the Technical Evaluation Committee was uploaded on 09/11/2022 on E-Tender Portal, simultaneously the document Tender Summary Report was generated, which mentioned that the Financial Bid opening date is scheduled as 10/11/2022 at 2.30 PM.
9. As pleaded in the writ petition, the petitioner had uploaded its tender for all five Packages and had also submitted the hard copy of its Bids as well as hard copy of the EMD well within time. Apparently, the EMD was submitted in the form of Two Term Deposit Receipts issued by State Bank of India, Industrial Finance Branch, Mumbai. One Term Deposit Receipt bears the Fixed Deposit No. 41325333469 for an amount of Rs. 13345040/. The other Term Deposit Receipt bears the Fixed Deposit No. 41325334372 for an amount of Rs.3336260/-.
10. It seems the Technical Evaluation Committee in its decision dated 07/11/2022 found the Petitioner as non-responsive for all five packages because the EMD deposited by it was not in conformity with the terms of that Condition No. 12(c) of the tender as the EMD was not in the Form of Bankers Cheque, Account Payee Demand Draft. Bank Guarantee /FDR drawn and payable in favour of Director, Disease Control & Farms, Department of Animal Husbandry, Uttar Pradesh, Lucknow payable at Lucknow.
11. Being aggrieved, the petitioner preferred the present writ petition.
12. This court has extensively heard both the counsels and has given its anxious thoughts to the issue in hand. Shri S.C. Mishra, learned Sr. Counsel for the petitioner has ably taken this court to the various facets of the present issue. Mr. Mishra has strongly argued that the petitioner fulfills the requirement of clause 12 (c) of the Tender Document, in as much as even the query raised by the Respondent No.1 on 28.10.2022 was duly replied by the Petitioner on 31.10.2022, in which it was clarified that the State Bank of India, Industrial Finance Branch, Mumbai has already written to the Respondent 2 on 21.10.2022 that the fixed deposits are lien marked to Director, Disease Control and Forms, Department of Animal Husbandry, Uttar Pradesh, Lucknow on the request of the Petitioner. Mr. Mishra convincingly argued that the fixed deposit receipt submitted by the Petitioner has been lien marked and only the office of Director, Disease Control and Forms, Department of Animal Husbandly, Uttar Pradesh, Lucknow can encash the fixed deposit by submitting the original in bank and nobody else can encash the same and at the event of return of the fixed deposit to the Petitioner, the written instructions from the department for release of the fixed deposit are required. He further submits that when the fixed deposit is lien marked to any authority, the same should be treated as per Negotiable Instrument Act, 1881 and draws attention of this court to various sections to buttress his argument emphasizing that the fixed deposits submitted by the petitioner along with the bid are fulfilling the requirement of Clause- 12(c) of the tender document.
13. The Ld. Senior Counsel for the petitioner has also agitated and raised the issue of arbitrariness in the order passed by the respondents. According to him, the respondent vide their letter dated 28.10.2022 openly sought clarification from the petitioner relating to the FDR deposited as EMD, which was duly replied by the petitioner on 31.10.2022 and the State Bank of India further left no doubt as to the creation of lien on 3.11.2022. Thus, the Ld. Counsel submits that had the respondent's been not satisfied with the reply of the petitioner dated 31.10.2022 and the clarification of Bank dated 3.11.2022, then they could have informed the petitioner, who would have deposited the earnest money in other forms given in Clause-12(c) of the Tender Document, much before the last date of submission of earnest money deposit. Thus, he draws an analogy to show that the purpose was only to oust the petitioner from the tender process and as such the impugned order had been passed in most arbitrary manner.
14. On the other hand, the Ld. Addl. Advocate General Shri Ramesh Kumar Singh, Sr. Advocate assisted by the Ld. Addl. Chief Standing Counsel appearing for the Respondents, took this court to condition No. 14.12 of the Uttar Pradesh Procurement Manual to show the powers of the tendering authority to seek clarification & accept response from any bidder, pursuant to which clarification was sought from the petitioner. Mr. Singh strenuously took this court to the queries raised by the respondent and the reply given by the petitioner to explain that although in sum and substance the letters of the State Bank of India are to the effect that the petitioner had got issued two Term Deposit Receipts in its own name for the purpose of EMD of a tender and got the same earmarked in the name of Director, Disease Control & Farms, Department of Animal Husbandry, Uttar Pradesh, but it was not clear as to under what circumstances the Petitioner had got issued the letter dated 21/10/2022 from the State Bank of India particularly when the query regarding EMD deposited by it was raised by the Department by its letter dated 28/10/2022. According to Mr. Singh, the Technical Evaluation Committee in its decision dated 07/11/2022 has found the Petitioner as non-responsive for all five packages for the reason that the EMD deposited by it was not in terms of that Condition No. 12(c) of the lender where the requirement, in specific and unambiguous terms, is that the EMD should be in the Form of Bankers Cheque, Account Payee Demand Draft, Bank Guarantee /FDR, which shall be payable in favour of Director, Disease Control & Farms, Department of Animal Husbandry , Uttar Pradesh, Lucknow payable at Lucknow. The term deposit receipt submitted by the petitioner not being a negotiable instrument was thus disputed to be satisfying the requisite condition.
15. The Ld. Sr. Counsel took this court to the details of the EMD's submitted by various other bidders to show that the respondent have uniformly and fairly applied to all the bidders of the same conditions and have rejected all those bidders, who have not conformed to the condition No. 12 (c ) of the Tender document relating to EMD. Mr. Singh has raised multiple grounds for rejections of the present petition, including (i) petitioner although participated in the pre-bid meeting dated 09/09/2022, however did not raise any question with respect to EMD, so there was no confusion in the mind of the petitioner (ii) Condition No. 12(C) in specific and unambiguous terms, mentions that EMD has to be made in the name of Director, Disease Control & Farms, Department of Animal Husbandry, Uttar Pradesh payable Lucknow at Lucknow, (iii) Term Deposit Receipt was got issued, by the Petitioner, in its own name from the State Bank of India, Industrial Finance Branch, Mumbai and the name of the Petitioner is printed on the said Deposit Receipts and the name of the Director, Disease Control & Farms, Department of Animal Husbandry, Uttar Pradesh is mentioned in hand writing in the said Deposit Receipts, which is unacceptable. Further, the said term deposit itself says that "Only Computer generated receipts is valid" and cautions to not accept hand receipt", (iv) The Term Deposit Receipt provides for PAN of the Petitioner, only and there is no mention of PAN of the "Director, Disease Control & Farms, Department of Animal Husbandry, Uttar Pradesh", (v) The terms deposit itself contains the following printed; "This is not a negotiable document", (vi) The respondent have never sought any clarification from the State Bank of India, regarding the Term Deposit Receipts submitted by the petitioner as EMD, however, surprisingly the State Bank of India issued the above said two letters addressed to "Director, Disease Control & Farms, Department of Animal Husbandry, Uttar Pradesh", only. However, no copy of the same has been endorsed to the petitioner/ owner of the Term Deposit Receipt. (vii) The State Bank of India is no authority to interpret the terms and conditions of the Tender, in question, (viii) There is no correlation between the FDR and the letters issued by the State Bank of India, (ix) The term deposit contains the mode of operation as "SINGLE" and as such it could be the petitioner only, who could operate the same, whose name appears in the FDR, (x ) the provisions of Negotiable Instrument Act as argued by the petitioner is not applicable to the Term Deposit to show that the same is negotiable etc.
16. The Ld. Sr. Counsel for the respondent has also cited various judgments including (i) Afcons Infrastructure Limited Versus Nagpur Metro Rail Corporation Limited And Another reported in (2016) 16 SCC 818, (ii) Municipal Corporation Ujjain and Another Versus BVG India Limited And Others reported in (2018) 5 SCC, (iii) Global Energy Limited and Another Versus Adani Exports Limited and Others reported in (2005) 4 SCC 435, (iv) LeelaDhar Gera and Another vs. Special Judge SC ST Act/Additional District Judge Bareilly reported in 2011(5) ADJ 604 to further his argument.
17. Thus, as per the respondent, since the FDR are not in the name of the Director, Disease Control & Farms, Department of Animal Husbandry, Uttar Pradesh and are presented as EMD for the Tender then that will be odd man out for the reason that will not be in conformity of Condition No. 12(c) of Tender for the reason that the Director, Disease Control & Farms, Department of Animal Husbandry, Uttar Pradesh the Authority when once takes a decision to forfeit EMD of any bidder then he has the right to obtain the amount forfeited directly from the concerned Bank without any reference and consent of the bidder which had furnished the EMD. However, in the present case, when the EMD is given in the nature as the Petitioner had submitted i.e. Term Deposit Receipt issued in the name of the Petitioner itself and lien marked in the name of the Director. Disease Control & Farms, Department of Animal Husbandry, Uttar Pradesh, then the Authority would not be in a position to realize the money from the Bank just on intimation to the Bank that EMD is forfeited. This is said so for the reason that said Term Deposit Receipts being in the name of the Petitioner and singly operated, though lien marked to the Director, Disease Control & Farms, Department of Animal Husbandry, Uttar Pradesh will be allowed to be operated by the Petitioner only as its name is printed on them and further that they are not negotiable. That being so the Authority would get the money of forfeited EMD only on the mercy of the bidder, which is not the intention of Condition No. 12(c) of Tender. Thus, it has been submitted by the respondent that the present writ petition as being devoid of any merits, may be dismissed and the interim order dated 10.11.2022 may be vacated.
18. This court has given its anxious thoughts to the rival contentions and the facts of the present case. The issue relating to the award of tender or tender documents, engaging the attention of this court is no longer res integra. Further, the extent of judicial review of the award of tender or tender documents comes with its own sets of limitations, considering the fact, that a contract is a commercial transaction and any evaluation of any such tenders would also be a commercial function. The Hon'ble Supreme Court time and again has kept a clear approach of not interfering in the tender jurisdiction of the government bodies or tendering authorities, unless the court senses any disregard of principles of natural justice or presence of any arbitrariness or malafide process.
19. The Hon'ble Supreme Court in Tata Cellular vs. Union of India (1994) 6 SCC 651, held that it cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by government bodies in order to prevent arbitrariness or favoritism. However, there are inherent limitations to the exercise of the power of judicial review. The Apex Court after referring to various judgments holding the ground, held at paragraph 94 of the judgment that the principles for judicial review or interference would be; to quote:
" 94. The principles deducible from the above are:
(1) The modem trend points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.
Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."
20. Explaining further, the limitation of Judicial review in tender matters, it would be appropriate to quote the judgment of the Apex Court in Jagdish Mandal vs. State of Orissa, (2007) 14 SCC 51, wherein the court held that, since the parties are governed by principles of commercial prudence, the extent of principles of equity and natural justice have to stay at a distance. To the same effect is the judgment passed by the Supreme Court in Silppi Constructions Contractors vs. Union of India and others 2019 SCC OnLine SC 1133, wherein again the Supreme Court held that the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. Courts must realize the havoc and loss to the public exchequer that needless interference in commercial matters can cause. Moreover, the Hon'ble Supreme court has put to certain caveat on the entertaining of a writ petition in this kind of matter in the case of National High-Speed Rail Corporation Limited vs. Montecarlo Limited, 2022 SCC OnLine SC 111, wherein the the Supreme Court observed that while entertaining a writ or granting stay which ultimately may delay the execution of the mega projects, it must be remembered that it may seriously impede the execution of the projects of public importance and disables the State or its agencies from discharging the constitutional and legal obligation towards the citizens.
21. The argument of the Ld. Senior counsel for the petitioner, is twofold. His first limb of argument relates to the event of fixed deposit receipt submitted by the Petitioner, which has been lien marked in favour of the office of Director, Disease Control and Farms, Department of Animal Husbandry, Uttar Pradesh, Lucknow and the second limb relates to the circumstances in which these FDR were lien marked and deposited with the Respondent.
22. As to the circumstances in which these FDR were lien marked and deposited with the respondent, it has been argued by the Ld. Senior Counsel of the petitioner that the respondent vide their letter dated 28.10.2022 has sought clarification from the petitioner relating to the FDR deposited as EMD, which had been duly replied by the petitioner on 31.10.2022. Moreover, the State Bank of India acknowledged the creation of lien on 03.11.2022. Thus, it has been argued that the respondent's would had been satisfied with the lien being marked on the FDR and had they not been satisfied, they could have informed the petitioner, who would have deposited the earnest money in other forms given in Clause-12(c) of the Tender Document, much before the last date of submission of earnest money deposit. Thus, according to the petitioner, the decision of tender being "non-responsive" by the Technical Evaluation committee, was merely to oust the petitioner from the tender process and as such the impugned order had been passed in most arbitrary manner. In the first blush the argument seems to be very attractive, however a deeper enquiry would reveal that the respondent's have never been satisfied with the lien being marked on the FDR to be in satisfaction of the EMD as provided under clause 12(c) of the Tender Document. The queries raised by the Respondent in clear and unequivocal terms, have mentioned and put the petitioner on caveat that the FDR in the name of the petitioner was non-negotiable instrument and was not as per clause 12(c ) of the Tender Document. It seems the petitioner relied heavily on the confirmation letters issued by the State Bank of India and in their own words believed that requirement of 12(c ) has been met by them by submitting the EMD in the form of lien marked on the FDR. Thus, it could not be said that the respondent were ever satisfied with the kind of EMD being provided by the petitioner. In fact, the petitioner has tried to beat around the bush, when the respondent asked the petitioner to clarify as to why the EMD was not in the name of the Authority and not as per the terms of the Tender Document. Thus, on the facts of the case, there is no arbitrariness in the act of the respondent and apparently it seems the petitioner, notwithstanding the clarification sought by the respondent, went ahead to take a chance of continuing the EMD in the form of a lien created on the FDR drawn in their own name. This court also finds certain force in the argument of the Ld. Sr. Counsel for the respondent, to the effect that, when the petitioner were themselves confident about the proposition of EMD being submitted in the form of lien created on a FDR in their own name, under what circumstances the petitioner got issued the confirmation letter dated 21.10.2022 from the State Bank of India and that too much before the clarification dated 28.10.2022 sought by the Respondent. Further, it is not the case of the petitioner that the Technical Evaluation Committee has accepted the tender of any proposed tenderer, who have offered EMD similar to as offered by the petitioner or has accepted tender of any person, who has submitted EMD not commensurate to the provisions of clause 12(c ) of the tender document.
23. The next question, which falls for consideration of this court is as to whether the Earnest Money Deposit submitted by the petitioner fulfil the requirement of clause 12 (c) of the Tender Document? Apparently, clause 12 ( c) of the tender Document read as follows:
" Earnest Money Deposit of Rs.33,36,260/-(Rupees Thirty three Lakhs Thirty three Thousand Two Hundred Sixty Only) for each package severally in the form either of Account payee Demand Draft, Fixed Deposit Receipt, Banker's Cheque or Bank Guarantee from Scheduled/Nationalized Bank, drawn in favour of "Director, Disease Control & Farms, Department of Animal Husbandry, Uttar Pradesh, Lucknow payable at Lucknow shall be submitted by Bidders. Bidders should submit separate EMD for separate Bids for separate Packages. The format for Bank Guarantee has been provided in Section-IX of this Tender Document."
A plain reading of the aforesaid terms would lead us to three things, (i) EMD is for Rs. 33,36,260/- for each package, (ii) EMD has to be in the form of Account payee Demand Draft, Fixed Reposit Receipts, Banker's Cheque or Bank guarantee from Scheduled/Nationalized Bank and (iii) the instrument mentions in (ii) shall be in favour of Director, Disease Control & Farms, Department of Animal Husbandry, Uttar Pradesh, Lucknow payable at Lucknow.
24. Admittedly, the petitioner submitted two Term Deposit Receipt, one amounting to Rs. l,33,45,040/-and another amounting to Rs3336260/- for the five clusters/packages. Although, clause 12(c) provides for submitting EMD severally for each cluster, but since neither of the parties argued on the said point, this court would not tread on the path to examine as to whether the two fixed deposit receipts submitted by the petitioner could have been considered as a EMD for all the five cluster/packages. Interestingly, this court finds that these FDR from the Stale Bank of India, Industrial Finance Branch, Mumbai is in the name of the Petitioner printed and not in the name of "Director, Disease Control & Farms, Department of Animal Husbandry, Uttar Pradesh, Lucknow payable at Lucknow". It has been argued by the Ld. Sr. Counsel for the petitioner that lien have been marked in favour of the respondent by the Bank and as such the same are negotiable and should be considered at par with the instrument mentioned in clause 12 (c) of the Tender document. This court finds it difficult to accept the submission of the petitioner as the Tender evaluation Committee in no uncertain terms have refused to accept the EMD submitted in the form of a lien crated on a FDR to be in terms of clause 12 ( c) of the Tender Document. As to whether this court can go into the said decision of the committee, the Hon'ble Supreme Court has already drawn a lakshman Rekha for all such consideration. Further, the Supreme Court in Central Coalfields Limited and another vs. SLL-SML (Joint Venture Consortium) and other (2016) 8 SCC 622, held that if courts take over the decision-making functions of the employer and make a distinction between essential and non-essential terms contrary to the intention of the employer and thereby re-writing the arrangement, it could lead to all sorts of problems. In that case, the Hon'ble Apex Court held that when there is a condition that any bid not accompanied by an acceptable Bank Guarantee shall be rejected by the employer as non-responsive, then the High Court holding such a condition as non-essential has impermissibly rewritten the condition since the same was an ex-facie mandatory condition for the employer. In the same line of Judgment is the case of Afcons Infrastructure Limited vs. Nagpur Metro Rail Corporation Limited and another (2016) 16 SCC 818, wherein the Supreme Court held that the owner of the project having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents, and a constitutional court needs to appreciate the tender documents, unless there is mala fide or perversity in the understanding of the terms of the tender conditions.
25. Thus, this court refrains itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer, who has offered to submit the EMD in the form of lien created on an FDR in his name. Recently, the Supreme Court in the case of M/S. N.G. Projects Limited vs. M/S. Vinod Kumar Jain and others, (2022) 6 SCC 127, observed that, the satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. The Supreme Court further observed that when it is not the case of the writ petitioner, whose bid was not accepted by the tender authority, that action of the tender authority was actuated by extraneous considerations or was malafide, then, only because the view of the tender authority was not to the liking of the writ petitioner, such decision does not warrant a court for interference in a grant of the contract to a successful bidder.
26. The Technical evaluation Committee has termed the tender of the petitioner as "non-responsive", since the FDR are not in the name of the Director, Disease Control & Farms, Department of Animal Husbandry, Uttar Pradesh. The respondent before this court have expressed their reservation that, in case the respondent, takes a decision to forfeit EMD of any bidder , as per the terms of the Tender Document, then they have a right to obtain the amount forfeited directly from the concerned Bank without any reference and consent of the bidder which had furnished the EMD. However, in the present case, when the EMD is given in the nature as the Petitioner had given i.e. Term Deposit Receipt issued in the name of the Petitioner itself and lien marked in the name of the Director. Disease Control & Farms, Department of Animal Husbandry, Uttar Pradesh, then the Authority would not be able to realize the money from the Bank just on intimation to the Bank that EMD is forfeited, because the said Term Deposit Receipts being in the name of the Petitioner and singly operated, though lien marked to the Director, Disease Control & Farms, Department of Animal Husbandry, Uttar Pradesh, will be allowed to be operated by the Petitioner only as its name is printed on them. That being so, the Authority would get the money of forfeited EMD only on the mercy of the bidder, which is not the intention of Condition No. 12(c) of Tender.
27. This court is of the view that the author of the tender documents, that is the tender authority, has been given a certain degree of leverage by the courts, being the best person to understand its requirements. Hence, a mere disagreement with the decision-making process of the tender authority is not a reason for a constitutional court to interfere with the same. We however strike a note of caution for the authorities to guide the timely approaching eligible bidders, fallen in confusion, so as to promote the object of healthy competition, as is not the case at hand. The reason being that the Director had reiterated the EMD to be in accordance with the terms of the Bid document vide letter dated 28.10.2022 and the burden of guidance was aptly discharged.
28. For all the above reasons, the present writ petition fails as the same is devoid of any merits. Hence, the writ is dismissed. The interim order dated 10.11.2022 stands vacated. The respondent is free to go ahead with the Tendering process as per law. In the facts of the case, there shall be no order as to cost.
Order Date:- 20.12.2022
Lokesh Kumar
(Om Prakash Shukla, J.) (Attau Rahman Masoodi, J.)