Bombay High Court
Larsen And Toubro Limited vs Mumbai Metropolitan Region ... on 4 May, 2023
Bench: R. D. Dhanuka, Gauri Godse
2023:BHC-OS:4039-DB
908.12017.23 wpl.doc
Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 12017 OF 2023
AND
WRIT PETITION (L) NO. 12023 OF 2023
Larsen & Tubro Limited, a company
incorporated in India, and having its
registered office at L&T House, Ballard
Estate, Mumbai - 400 001. ....Petitioner
V/s.
1. Mumbai Metropolitan Region Development
Authority (MMRDA), a statutory body under
the Mumbai Metropolitan Development Act,
1974, having its office at Plot No. 14 & 15,
MMRDA New Building, BKC, Bandra (E)
2. Engineer-in-Chief, Mumbai Metropolitan
Region Development Authority (MMRDA),
having his office at 2nd Floor, New MMRDA
Building, BKC, Bandra (E), Mumbai-
400051.
Email ID:
[email protected]
3. Executive Engineer, Mumbai Metropolitan
Region Development Authority (MMRDA),
having his office at Plot No. 14 & 15, MMRDA
New Building, 5th Floor, BKC, Bandra (E),
Mumbai - 400 051. Email ID: ....Respondents
[email protected]
Mr. Janak Dwarkadas, Senior Advocate along with Mr. Chirag
Kamdar and Mr. Indranil Deshmukh, Ms. Gathi Prakash, Mr. Darshan
Furia and Ms. Arushi Poddar i/b M/s. Cyril Amarchand Majngaldas,
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for the Petitioner in WPL 12017/2023 Advocate for the Petitioner
Mr. Janak Dwarkadas, Senior Advocate along with Mr. Chirag
Kamdar and Mr. Indranil Deshmukh, Ms. Gathi Prakash, Ms. Nidhi
Asher and Ms. Priyanka Desai i/b M/s. Cyril Amarchand Mangaldas
for the Petitioner in WPL 12023/2023 Advocate for the Petitioner
Dr. Milind Sathe, Senior Advocate along with Mr. Saket Mone, Mr.
Shrey Shah, Mr.Abhishek Salion, Mr. Devansh Shah i/b M/s. Vidhi
Partners, Advocate for Respondent No. 1-MMRDA in both Petition.
CORAM : R. D. DHANUKA &
GAURI GODSE, JJ.
DATED : 4th MAY, 2023.
ORAL JUDGMENT:
1. Rule. Dr. Sathe, learned senior counsel waives service for Respondent - MMRDA in both the matters. By consent of the parties, both the Petitions were heard together and are being disposed of by a common order.
2. Petitioners in Writ Petition (L) No. 12023 of 2023 have prayed for Writ of Mandamus against the Respondents to declare the Petitioner as the lowest bidder or L-1 bidder in the tender for the project i.e. Package - 2.
3. In so far as Writ Petition (L) No. 12017 of 2023 is concerned, the Petitioner has prayed for Writ of Certiorari for quashing and setting aside the rejection of the Petitioner's technical bid submitted to Respondent No. 1 in respect of proposal for Package 1. In the Page 2 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 ::: 908.12017.23 wpl.doc alternative, Petitioner has prayed for Writ of Mandamus against the Respondents to withdraw email dated 25th April, 2023 communicating rejection of Petitioner's technical bid submitted on 6 th April 2023. Petitioner has also prayed for a Writ of Mandamus against the Respondent to treat the technical bid submitted by the Petitioner on 6th April 2023 as eligible and open and consider Petitioner's financial bid submitted on 6th April 2023 in response to said tender.
FACTS IN WRIT PETITION (L) NO. 12017 OF 2023
4. On 14th January 2023, Respondents issued a request for proposal for Package 1 & 2 of the project in question. On 16 th March 2023, a common set of deviations for Package 1 and a common set of deviations for Package 2 were issued by Respondent No. 1. On 6 th April 2023, Petitioner submitted its technical bids for both the Packages. On 19th April 2023, Respondent No. 1 issued two letters both dated 19th April, 2023 for Package 1 and 2 respectively to the Petitioner inter alia requesting for additional documents to demonstrate different project experience to be qualified for both the packages. On 21st April 2023, Petitioner responded to the said letter and clarified that it has Doha Metro Project experience to establish its technical capacity criteria.
5. On 24th April 2023, Respondent No. 2 requested the Petitioner Page 3 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 ::: 908.12017.23 wpl.doc to remain present at the time of opening of financial bid on 25 th April 2023 at 10.00 a.m. It is the case of the Petitioner that on 25 th April 2023, Petitioner received an E-mail claiming that the bid of the Petitioner for tender in question had been rejected during technical evaluation by the duly constituted committee for the reason 'Not eligible'.
6. On 26th April 2023, the Petitioner through their Advocates addressed a letter to the Respondents calling upon the Respondents to forthwith withdraw the decision of rejecting the Petitioner's technical bid for Package 1 and to treat the technical bid submitted by the Petitioner on 6th April 2023 as eligible and open for the financial bid for Package 1. Since the Respondents did not accept the request of the Petitioner to withdraw the decision to reject the Petitioner's technical bid for Package 1, the Petitioner filed Writ Petition (L) No. 12017 of 2023. Writ Petition is resisted by the Respondents by filing Affidavit-in-Reply.
FACTS IN WRIT PETITION (L) NO. 12023 OF 2023:
7. On 14th January 2023, Respondent No. 2 issued a 'Request for proposal for Package - 2' of the project in question. On 6 th April 2023, Petitioner submitted its bid for the project. It is the case of the Petitioner that on 25th April, 2023 upon visiting the e-tender portal for Page 4 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 ::: 908.12017.23 wpl.doc the project, Petitioner realized that it had inadvertently submitted its bid amount inclusive of tax in the coloumn for "rate without tax" and "rate with tax" of the price schedule. Petitioner accordingly addressed a letter to Respondent No. 1 inter alia clarifying that the bid price submitted by the Petitioner in column No. 12 of price schedule is Indian Rupees 6,625,00,00,000/- which is inclusive of all taxes and GST. On 26th April 2023, the Petitioner addressed a letter to Respondent No. 2 contending that Respondent No. 1 had correctly determined the Petitioner as the L1 bidder on the basis of contract price with tax. On 27th April 2023, the Petitioner filed Writ Petition (L) No. 12023 of 2023.
SUBMISSIONS OF THE PARTIES IN BOTH PETITIONS:
8. Mr. Dwarkadas, learned senior counsel for the Petitioner in both the Petitions invited out attention to the documents annexed to the petitions and the submissions made by the Respondents in the Affidavit-in-Reply filed these Petitions. He invited our attention to Clause 1.2.7 of Section 1 of RFP for Package 1, Clause 3.3.1 of Section 3 for Package 1 and Clause 2.2.2.2(iii)(b) of Section 2 and submitted that the technical capacity criteria in RFP for Package 1 does not refer the technical capacity criteria set out in the RPF for Package -2, or vice versa. He submitted that technical capacity Page 5 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 ::: 908.12017.23 wpl.doc criteria set out in RFP packages are entirely independent of one another and whether to chose to bid for either or both Packages, subject to the qualification that Respondent No. 1 would award only one package to one bidder.
9. It is submitted by the learned senior counsel for the Petitioner that earlier provision, more particularly contained in Clauses 1.2.7 of Section 1 and 3.3.1 of Section 3 was deleted. He submitted that in view of the said deletion, of part of Clause 1.2.7 of Section 1, there was no restriction any longer on Respondent No. 1 awarding both Packages to one successful bidder. It is submitted by the learned senior counsel for the Petitioner that Respondent No. 1 thereafter issued two further common sets of deviations for Package 1 dated 24th March 2023 and 31st March 2023.
10. He submitted that on 6th April 2023, Petitioner accordingly submitted its technical and financial bids for both Packages.
Petitioner had sufficiently met the technical capacity qualification independently contained in both RFP's for Package 1 and 2 by virtue of its Doha Metro Project experience where it had undertaken TBM tunneling of 5.126 km with finished diameter of 6.17 m of value of Indian Rupees 3,978.90 Cr. It is submitted that though the bid submitted by the Petitioner on 6th April 2023 was responsive, Page 6 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 ::: 908.12017.23 wpl.doc Respondent No. 1 issued two letters both dated 19 th April 2023 to the Petitioner for Package - 2, purporting to seek clarification and/or informing of shortfall of documents with regard to the technical bids submitted by the Petitioner. He submitted that the Petitioner was called upon to submit its clarification within two days from the date of receipt of said letter, making it clear that in case of non-availability of documents to demonstrate the technical capacity separately for both packages, Petitioner shall indicate which package among the two packages should be considered for technical evaluation.
11. It is submitted by the learned senior counsel for the Petitioner that Petitioner did not waive or accept the new condition imposed by the Respondent No. 1 while submitting clarifications vide communication dated 21st April 2021 that if the Petitioner was held technically responsive for one package, then the Respondent No. 1 may consider Package - 2. He submitted that the said clarification was without waiving the rights of the Petitioner to contend that the Petitioner was not required to submit two separate certificates i.e. each in respect of each Package which was the subject matter of the tender.
12. Learned senior counsel invited our attention to E-mail dated 24th April 2023 calling upon the Petitioner to attend the financial bid Page 7 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 ::: 908.12017.23 wpl.doc opening on 25th April, 2023 at 10.00 a.m. He submitted that on 25 th April 2023, Respondent No. 1 rejected the technical bid of the Petitioner for the reason 'not eligible'. Learned senior counsel invited our attention to the legal notice issued to the Petitioner by Respondent No. 1.
13. It is submitted by the learned senior counsel for the Petitioner that for the first time on 19th April 2023, Respondent No. 1 contended that the Petitioner was required to meet technical capacity criteria separately in respect of both the packages. He submitted that such additional requirement could not have been imposed by Respondent No. 1 after submission of the bid by the Petitioner on 6 th April 2023. He submitted that under the garb of seeking clarifications, Respondent has imposed additional conditions after closing of the last date of submission of technical bid.
14. The next submission of the learned senior counsel is that though under Clause 2.19 Respondents could not have opened financial bid before expiry of 7 days from the date of rejection of technical bid, in this case, Respondents have opened the financial bid of successful bidder within two minutes of the opening of the declaration of the outcome of the technical bid. Learned senior counsel placed reliance on the Manual for Procurement of Works Page 8 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 ::: 908.12017.23 wpl.doc issued by the Government of India, Ministry of Finance, more particularly Clause 5.5.2 and submitted that if Respondents would have waited for 7 days time after opening of technical bid, the defect, if any, in the technical bid submitted by the Petitioner could have been rectified by the Petitioner within such period of 7 days.
15. Learned senior counsel placed reliance on the Judgment of the Delhi High Court in the case of Supreme Infrastructure India Limited Vs. Rail Vikas Nigam Limited and another1 and more particularly paragraph Nos. 23, 27 and 30 and submitted that Respondents being a public body is expected to function and conduct itself with reasonable prudence expected of any common man in the business and cannot be bogged down by the literal rule, even if there be one and throw to winds the basic common sense and shut its eyes to such obvious errors, to defeat not only the rights of a deserving bidder, but also sacrifice public interest in the process. He submitted that in this case, since the Respondents had imposed the additional condition for submitting separate Work Experience Certificates in respect of both the packages which was imposed after last date of closing of the technical bid, Respondents could not have rejected the technical bid of the Petitioner in so far as Package 1 is 1 2012 SCC OnLine Del 6176 Page 9 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 ::: 908.12017.23 wpl.doc concerned on the ground that the Petitioner had not submitted separate technical capacity certificates in respect of Package 1.
16. Dr. Sathe, learned senior counsel for the Respondents on the other hand invited our attention to various provisions of the tender and submitted that after rejection of technical bid of the Petitioner, Respondent No. 1 had opened the financial bid. Megha Engineering and Infrastructure Limited was only bidder whose technical bid was found responsive and thus, the financial bid of said bidder was open. The said financial bid of MEIL was thereafter recommended as the said successful bidder for further action. He submitted that said MEIL has not been impleaded as party Respondent to the Petition though is necessary party to the Petition.
17. It is submitted that any adverse order if passed by this Court in the Petition filed by the Petitioner challenging the rejection of technical bid of the Petitioner and opening of financial bid, the said successful bidder i.e. MEIL would be seriously affected.
18. The next submission of the learned senior counsel is that admittedly prior to the date of carrying out amendment and deleting the relevant provision, all the bidders were though allowed to participate in the bid for both Packages, it was made clear that successful bidder would be awarded only one out of the two contract Page 10 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 ::: 908.12017.23 wpl.doc and not both the contracts. He submitted that in view of the such condition, the condition for submission of Work Experience Certificate was held valid in respect of any such contract which would have been awarded to the successful bidder.
19. It is submitted by the learned senior counsel that in view of the deletion of such clause, Respondent permitted the bidders to submit bids for both packages and modified the condition that if such bidder is found responsive in respect of both the works, such bidder would be awarded both the works. The condition of submission of Work Experience Certificate which was held good in respect of one contract obviously could not have been relied upon by the Petitioner. He submitted that the scope of work was expanded if both the contracts were awarded to the same bidder.
20. The learned senior counsel further submitted that bid of the Petitioner was rejected by the Respondents in view of the Petitioner not having submitted two separate Work Experience Certificates. He invited our attention to communication dated 21 st April 2023, addressed by the Petitioner in response to the query raised by the Respondent vide letter dated 19th April 2023 and submitted that the Petitioner voluntarily submitted and made it clear that the Petitioner had one project of Doha Metro Project experience where it had Page 11 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 ::: 908.12017.23 wpl.doc undertaken TBM tunneling of 5.126 km with finished diameter of 6.17 m of value of Indian Rupees 3,978.90 Cr.
21. In response to query 2, it is submitted by the learned senior counsel that Petitioner had voluntarily submitted bid for Package 2 after the Petitioner was found technically responsive for Package 1. He submitted that the said letter addressed by the Petitioner was without any protest and having accepted that if Petitioner's bid was technically responsive for one package, the Petitioner will be considered for Package - 2, the Petitioner has given up its contention which is now sought to be raised before this Court for the first time. He submitted that in view of unequivocal acceptance by the Petitioner vide letter dated 21st April 2023 and having made a request that in case of Petitioner's bid having been found technically responsive for one package, same shall be considered for Package
- 2, the Petitioner now cannot be allowed to urge that there was any deviation in the tender conditions.
22. Learned senior counsel vehemently urged that bidder should be qualified and experienced to complete both the packages and hence two separate Work Experience Certificates were required to be submitted. He submitted that under Clause 3.14 and 3.15 of the tender, Respondents were permitted to seek any clarification from Page 12 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 ::: 908.12017.23 wpl.doc the bidder. He submitted that upon scrutiny of the technical bid of the Petitioner, since it was found that same was not responsive in view of the Petitioner not having submitted the Work Experience Certificate in respect of both packages, Respondents had exercised their right under Clauses 3.14 and 3.15 of the tender condition which was duly responded by the Petitioner.
23. Learned senior counsel submitted that in any event the Respondents being draftsman of the tender condition, the interpretation of the terms and conditions of the tender as made by the Respondents would be binding and not as sought to be canvassed by the Petitioner. Learned senior counsel also placed reliance on the following Judgments.
a. Afcons Infrastructure Limited V/s. Nagpur Metro Rail Corporation Limited and Another,2;
b. National High Speed Rail Corporation Limited V/s. Montecarlo Limited and Another,3;
c. W . B. State Electricity Board V/s. Patel Engineering Co. Ltd. and others4; and d. Ramana Dayaram Shetty V/s. International Airport Authority 2 (2016) 16 Supreme Court Cases 818 3 2022 SCC OnLine SC 111 4 (2001) 2 Supreme Court Cases 451 Page 13 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 ::: 908.12017.23 wpl.doc of India and Others.5
24. In so far as the submissions made by learned senior counsel Mr. Dwarkadas in Writ Petition (L) No.12023 of 2023 for Package -2 is concerned, it is submitted by the learned senior counsel that Clause 1.2 defined 'contract price'. He submitted that it is made clear in the said definition of the contract price that the provisional sum shall be operative as stated in the clause 1.3.2. The contract price shall be the total amount including provisional sum and excluding GST. Learned senior counsel invited our attention to averments made in paragraph 5.5 and 5.6 of the Writ Petition (L) No. 12023 of 2023 and submitted that it is the case of the Petitioner itself that the Petitioner realized the mistake on or around 25th April 2023 that it had inadvertently submitted its bid amount inclusive of tax in the coloumn for "rate without tax" and "rate with tax" of the price schedule. He submitted that alleged error in the price bid submitted by the Petitioner was admittedly sought to be corrected after opening of the price bid submitted by the successful bidder.
25. Mr. Dwarkadas, learned senior counsel for the Petitioner made an attempt to distinguish the paragraphs of the Judgment of the Hon'ble Supreme Court in the case of Supreme Infrastructure 5 (1979) 3 Supreme Court Cases 489 Page 14 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 ::: 908.12017.23 wpl.doc India Limited relied upon by Dr. Sathe and relied upon paragraph No. 11 of the said Judgment and vehemently urged that since decision making process of the Respondent was malafide or intended to benefit the successful bidder, the Court has ample power to interfere with such decision making process. He submitted that even the said successful bidder had not submitted two separate Work Experience Certificate initially.
26. In so far as the submission that the financial bid could not have been opened before expiry of 7 days by the Respondents is concerned, learned senior counsel relied upon Clause 2.19 r/w 3.2 and submitted that period of 7 days would commence only after opening of technical bid.
27. In so far as the dispute relating to Package 2 is concerned, the learned senior counsel for the Petitioner sought to distinguish the Judgment of the Hon'ble Supreme Court in the case of W. B. State Electricity Board by relying upon paragraph Nos. 23 and 28 of the said Judgment. He submitted that since the Petitioner had inadvertently mentioned the price inclusive of GST, such mistake committed by the Petitioner unintentionally was required to be corrected. He submitted that in any event it was a matter of arithmetic calculation and thus, even if the amount of GST is Page 15 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 ::: 908.12017.23 wpl.doc included in the price bid, Respondent would have excluded the amount of GST which was known to the Respondent and ought to have considered the price bid of the Petitioner as responsive.
REASONS AND CONCLUSIONS:
28. The short question that arises for consideration of this Court in so far as Package 1 is concerned, whether the Petitioner was required to submit two separate Work Experience Certificates i.e. separately in respect of both the packages or not.
29. It was to the knowledge of the Petitioner that financial bid of the successful bidder was lowest. The Petitioner however, did not chose to implead the successful bidder i.e. Megha Engineering and Infrastructure Limited as party Respondent to the Petition. In our view, Dr. Sathe is right in his submission that said successful bidder was necessary party to the Petition and any adverse order if passed by this Court by accepting the submissions of the Petitioner and if interferes with the award of contract in favour of the successful bidder, such successful bidder would be seriously prejudiced. Writ Petition deserves to be rejected on this ground itself.
30. The Hon'ble Supreme Court in the case of Afcons Infrastructure Limited (supra) has held that the owner or the Page 16 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 ::: 908.12017.23 wpl.doc employer of the project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The Constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is malafide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. 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. In the same Judgment, the Supreme Court has also held that the successful bidder has to be impleaded as party to the Writ Petition and in absence of such successful bidder have not been made a party, the Court cannot pass any order against such successful bidder.
31. In our view, the interpretation of the terms of the tender by the Respondents that there should be two separate Work Experience Certificate required i.e. two certificates in respect of each Package is a plausible interpretation. Be that as it may, draftsman of the documents has to interpret the tender conditions which in this case are the Respondents. Draftsman of the documents is the best person to interpret it is own terms of contract. Be that as it may, we do not Page 17 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 ::: 908.12017.23 wpl.doc find any allegations of malafide in the Petition filed by the Petitioner nor the Petitioner has been successful to demonstrate any such allegations of malafide made across the bar during the course of arguments.
32. The Hon'ble Supreme Court in the case of National High Speed Rail Corporation Limited (supra) has held that the Petitioner once having accepted the terms and conditions of the tender process with full knowledge of relevant clauses and participated with full knowledge, thereafter it was not open for the original Writ Petitioner to make a grievance with respect to such clauses. In our view, the Petitioner had already submitted clarification to the query raised by the Respondents to submit two Work Experience Certificates in respect of each Package and that if the technical bid of the Petitioner is found responsive, same should be considered for Package - 2.
The Petitioner now after having failed in both Packages, cannot be allowed to contend that Respondents could not have sought such clarification from the Petitioner. The principles laid down by the Supreme Court in National High Speed Rail Corporation Limited (supra) squarely apply to the facts of this case. We are respectfully bound by these principles.
33. It is common ground that before carrying out amendment in Page 18 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 ::: 908.12017.23 wpl.doc the tender conditions, all the bidders were permitted to submit their bid for both packages. It was further made clear that successful bidder would be awarded with only one contract out of the two contracts. It is also common ground that Work Experience Certificate was required to be submitted by each of the bidder. Such condition which prohibited from awarding both the contracts though bidders would have been even successful was admittedly deleted before the submission of the technical bids. It was sought to be contended by the Respondents that since the successful bidder would have been awarded both packages if was successful, separate Work Experience Certificate was required to be submitted in respect of each package.
34. A perusal of the tender condition clearly indicates that under Clause 3.14, the employer is entitled to seek any clarification in writing from any bidder regarding its technical bid. Depending upon the clarification that would be given by the bidders, the employer is entitled to make deviation in the tender condition. Though the last date for submission of the technical bid was over and though the Petitioner not having submitted separate Work Experience Certificate in respect of both the packages, instead of rejecting the technical bid of the Petitioner in respect of both the packages, the Respondent Page 19 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 ::: 908.12017.23 wpl.doc sought clarification under Clause 3.1.4 from both the bidders. A perusal of the letter addressed by the Petitioner in response to the said query raised by the Respondent, Clause 3.1.4, would clearly indicate that in so far as query No.1 is concerned the Petitioner vide letter dated 21st April 2023 submitted that threshold technical capacity aggregating to INR 42,521.78 Cr. INR 21221.08 Cr and INR 21300.70 Cr against the requirement of INR 14,546 Cr for Package - 1 and INR 14922 Cr for Package - 2.
35. In so far as query No. 2 is concerned, the Petitioner submitted that the Petitioner had experience of some project of Doha Metro Project where it had undertaken TBM tunneling of 5.126 km with finished diameter of 6.17 m of value of Indian Rupees 3,978.90 Cr. (L&T Share in JV). In so far as clarification sought under Clause 3.1.4 of Volume 1 is concerned, the Petitioner made a request that, if the Petitioner was technically responsive for one package, then the Respondent may consider Package - 2. A perusal of the said letter indicates that in the said letter while clarifying the issue, the Petitioner had not reserved any right to challenge the clarification sought by the Respondent or that the Petitioner had waived their contention that the Petitioner was not liable to submit two separate Work Experience Certificate i.e. one each in respect of both the Page 20 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 ::: 908.12017.23 wpl.doc packages.
36. It is not disputed by the Petitioner that in view of the said clarification issued by the Petitioner vide letter dated 21 st April 2023, Respondents had taken into consideration the said Work Experience Certificate in respect of project of Doha Metro Project undertaken by the Petitioner in respect of Package 2 and having found the technical bid of the Petitioner responsive, in respect of Package 2 had opened the financial bid of the said Package. The Petitioner having found unsuccessful in the financial bid submitted for Package 2, has now challenged the tender condition or the letter of the Respondent seeking clarification and asking the Petitioner to submit two separate Work Experience Certificate. In our view, the Petitioner had already clarified that the Petitioner has only one Work Experience Certificate and in case, the bid of the Petitioner was found technically responsive for one Package, same shall be considered for Package
- 2, the Petitioner now cannot be allowed now to contend that the said one such Work Experience Certificate was valid for both the packages.
37. In so far as the Judgment of the Delhi High Court in the case of Supreme Infrastructure India Limited (supra) pressed in service by learned senior counsel Mr. Dwarkadas is concerned, Delhi High Page 21 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 ::: 908.12017.23 wpl.doc Court has held that employer cannot be bogged down by the literal rule, even if there be one and throw to winds the basic common sense and shut its eyes to such obvious errors, to defeat not only the rights of a deserving bidder, but also sacrifice public interest in the process. In this case, the Petitioner not having fulfilled the tender condition and in any event having not clarified that in case of technical bid of the Petitioner if found responsive, the Work Experience Certificate submitted by the Petitioner shall be submitted for Package 2, we do not find any substance in the submission made by Mr. Dwarkadas, learned senior counsel for the Petitioner that the Respondents have not acted with basic common sense or has not taken any reasonable approach while rejecting the technical bid submitted by the Petitioner.
38. In so far as the submission of Mr. Dwarkadas, learned senior counsel for the Petitioner that the Respondents could not have opened the financial bid before the expiry of 7 days of the opening of the technical bid and displaying the outcome of the opening of the technical bid is concerned, in our view, there is no substance in the submission of the learned senior counsel. The Petitioner had already made a request to the Respondents to consider the said Work Experience Certificate submitted by the Petitioner, if the technical bid Page 22 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 ::: 908.12017.23 wpl.doc of the Petitioner is found responsive for Package - 2, however, Respondents having found that there was only one successful bidder. In our view, no prejudice would have caused to the Petitioner even if the price bid of the successful bidder was opened before expiry of seven days.
39. In so far as Package - 2 is concerned, it is clear that so called alleged mistake discovered by the Petitioner in the financial bid submitted by the Petitioner was sought to be rectified after opening of the financial bid having found financial bid as rejected. Such error cannot be allowed to be corrected after opening of the financial bid. The Respondents rightly rejected the request of the Petitioner to rectify any such error. In so far as 'Manual for Procurement of Works issued by the Government of India, Ministry of Finance' pressed in service by Mr. Dwarkadas, learned senior counsel for the Petitioner is concerned, such Manual cannot be applied to the contract in question. The said Manual is not applicable to the Respondents. Reliance placed on the said Manual by the learned senior counsel for the Petitioner is thus misplaced.
40. The Hon'ble Supreme Court in the case of W. B. State Electricity Board has laid down the principles as to when the Court can interfere in the proceedings seeking relief in equity on the Page 23 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 ::: 908.12017.23 wpl.doc ground of mistake. In our view, since there was no mistake in any of the provisions of tender condition and both the parties having been ad Idem about the terms of the tender, we are not inclined to interfere with the process of awarding the contract on the ground of alleged mistake in any of the terms and conditions of the contract. Mr. Dwarkadas, learned senior counsel for the Petitioner has pressed in service and relied on paragraph Nos. 23 & 24 of the same Judgment in which the Supreme Court held that the mistake or errors in question are unintentional and occurred due to the fault of computer termed as a repetitive systematic computer typographical transmission failure.
41. We are afraid we cannot accept the submission of Mr. Dwarkadas, learned senior counsel for the Petitioner that the mistake in mentioning the price bid inclusive of GST in so far as Package - 2 is concerned, ought to have been permitted to be corrected by the Respondents after opening of the financial bid. The reliance placed on Paragraph Nos. 23 and 24 of the said Judgment by the learned senior counsel is thus is clearly misconceived.
42. In our view, Dr. Sathe, learned senior counsel for Respondents rightly placed reliance on the Judgment of the Hon'ble Supreme Court in the case of Ramana Dayaram Shetty in support of his Page 24 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 ::: 908.12017.23 wpl.doc various propositions. The said Judgment supports the case of the Respondents.
43. In our view, there is no merit in any of the contentions raised by Mr. Dwarkadas, learned senior counsel for the Petitioner. Both Petitions are devoid of merit and are accordingly dismissed. No order as to costs. All parties to rely upon the authenticated copy of this Order.
(GAURI GODSE, J.) (R. D. DHANUKA, J.) Page 25 of 25 ::: Uploaded on - 06/05/2023 ::: Downloaded on - 07/05/2023 06:57:22 :::