Bombay High Court
Shri. Swami Samarth Engineers Ltd vs State Of Maharashtra And Ors on 30 March, 2021
Equivalent citations: AIRONLINE 2021 BOM 1028
Author: R.I. Chagla
Bench: K.K. Tated, R.I. Chagla
30.wpst.92861.20a-for correction.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST.) NO. 92861 OF 2020
Shri Swami Samarth Engineers Ltd. ... Petitioner
Versus
State of Maharashtra & Ors. ... Respondents
.........
Mr. Surel S. Shah i/b Mr. Ajit J. Kenjale for the Petitioner.
Mr. V.S. Gokhale, 'B' Panel Counsel for the Respondent-State.
Mr. Rompal Kohli a/w Chandni Bhatt i/b M/s. C.K. Legal for Respondent
No.5.
.........
CORAM : K.K. TATED &
R.I. CHAGLA, JJ.
RESERVED ON : 15TH MARCH, 2021.
PRONOUNCED ON : 30TH MARCH, 2021.
ORAL JUDGMENT (Per R.I. CHAGLA, J.) :
1 By this Petition under Article 226 of the Constitution of India, the Petitioner challenges the tender process by which the Respondents invited online bid / tender in respect of Hydro Electric project for Gadnadi Hydro Electric Project, Taluka Sangameshwar, District Ratnagiri (1x1.8 MW) and Uttarmad Hydro Electric Project, Taluka Patan, District Satara Waghmare 1 / 35
30.wpst.92861.20a-for correction.doc (1x0.4 MW). This Petition further challenges letter dated 14.08.2020 issued by Respondent No.2 rejecting the Petitioner's request for extension of time for online bid submission for Gadnadi Hydro Electric Project. A further directions is sought against Respondents for grant of extension of time to submit the Petitioner's online bid and for acceptance of the same. 2 The Petitioner is a Company incorporated under the provisions of Companies Act, 1956 having its registered office at 773/3, Pradyumn Apartments, Lane No.9, Bhandarkar Road, Pune 411 004. The Petitioner is in the business of undertaking national highway road project, irrigation project, hydro-power project and several other undertakings of the government and has completed several projects successfully. The Petitioner claims to have more than 25 years in this business. The Petitioner also claims to be registered with Respondent No.1 as a contractor and has completed several major projects as well as commissioning 1.2 MW hydro-power project which has been successfully running for the last five years.
3 Respondent No.1 is the State of Maharashtra. Respondent No.2 is the Executive Engineer, Hydro Electric and Lift Irrigation, Kolhapur. Whereas Respondent No.3 is the Chief Engineer (Electrical) Hydro Projects, Water Resources Department, Government of Waghmare 2 / 35
30.wpst.92861.20a-for correction.doc Maharashtra, and Respondent No.4 is the Secretary (CAD), Water Resources Department, Government of Maharashtra. Respondent No.5 is one of the bidders who had successfully submitted its bid prior to the last extended date and time i.e. 06.08.2020 till 5.00 p.m. 4 Respondent Nos.1 to 4 had floated a tender bearing Tender No.CE(E)/HP/SHP/CTP/IPP/81 of 2020-21 in respect of the said Gadnadi Hydro Electric Project and Uttarmad Hydro Electric Project. The Respondent Nos.1 to 4 had invited bidders through online from the Promoters / Developers who intend to develop small hydro-electric projects and CPP / IPP for electricity generation in the State of Maharashtra. The Tender notice was floated by Respondent Nos.1 to 4 on its web portal and the Respondents also floated and published a Tender Document for the said project. The bidders were requested to submit their proposal before 21.07.2020, however, the said time for submitting their proposals / bids was extended upto 06.08.2020. 5 The Petitioner has stated in paragraphs 5 to 8 as under :
"5. The Petitioner states that as per Tender Document, Clause nos.1.1.10 and 1.1.11, which reads as under:
1.1.10 Payments to Inviter Waghmare 3 / 35
30.wpst.92861.20a-for correction.doc Upfront Premium Amount : As quoted by Promoter / Developer in bid form [(Threshold Premium for (This quoted Upfront the Project is 90.00 Lacs) Premium amount shall be (CI No.2.25.8) over and above Threshold Premium) Land Lease Rent (Clause : Rs.1/KW of installed No.3.4.1) capacity / year Water Royalty Charges : Rs.0.05/Kwh (unit) of (Clause No.3.4.2 & 3.4.3) energy generated.
Maintenance charges for : Rs.0.05 for every unit intake structure, penstock generated.
etc.
(Clause No.3.4.4)
Mode of payment : Demand Draft payable to
Executive Engineer. (To be
nominated after allotment
of Project).
1.1.11 Techno Economic Feasibility Report
(TEFR) processing fees
(Clause No.3.2.1)
Amount : Rs.3.50 Lacs
Mode of payment Demand Draft payable to
Executive Engineer. (To be
nominated after allotment of
Project).
Therefore, it was specific condition that the bidder was required to submit the threshold premium for the project shall be over and above the threshold premium. Further, in view of Clause no.2.25.8, the threshold premium amount was indicative only and was never final amount.
6. The Petitioner being qualified to participate in the Waghmare 4 / 35
30.wpst.92861.20a-for correction.doc said bidding process and having work experience for hydro-electric projects, decided to participate for Gadnadi Hydro Electric Project, Taluka Sangameshwar, District Ratnagiri (1x1.8 MW) and for that purpose, downloaded the bid document for the subject work and further paid tender fees of Rs.5600/- and also submitted Earnest Money Deposit (EMD) for Rs.5,50,000/- vide E- Procurement Ref. No.10219013122689. Hereto annexed and marked as Exhibit "C" is a copy of the said payment Receipt.
7. The Petitioner states that pursuant to the said tender notice and the amount paid towards the said tender on 6.8.2020, Petitioner tried to upload the financial bid. The Petitioner was desires to quote threshold premium as hundred percent of Rs.90 lakhs, however, the Petitioner was unable to unload the same as it appears the limitation was fixed by the Respondents as such it was showing error by saying "percentage rate please choose the percentage option then enter the valid percentage rate".
8 The Petitioner states that due to the said error / technical problem, the Petitioner could not upload its quotation as the same was not accepted on the said website. Hereto annexed and marked as Exhibit "D" (Colly) copies of the said screenshots of the relevant website. The Petitioner was continuously making attempts to upload its bid, however, could not complete Waghmare 5 / 35
30.wpst.92861.20a-for correction.doc the same. The Petitioner thought the same as a technical / software error, therefore the Petitioner, immediately, on the very same day i.e. 6.8.2020 addressed a letter to Respondent No.2 pointed out that the Petitioner's financial bid / quotation could not uploaded for the quotation that 100% of the threshold premium i.e. Rs.90 lakhs and therefore the Petitioner requests for grant of time for one more day i.e. 7.8.2020 and requested for time extension. Hereto annexed and marked as Exhibit "E" is a copy of the said letter dated 6.8.2020."
6 The Petitioner has stated that inspite of addressing letter dated 06.08.2020 which had been sent through email, the Respondents did not consider the request of the Petitioner and did not grant any extension of time to the Petitioner. The Petitioner had also sent a notice dated 12.08.2020 to the Respondents calling upon the Respondents to allow the Petitioner to file online bid submission for Gadnadi Hydro- electric project and to participate in the bid process. However, the Respondents neither considered the Petitioner's request letter dated 06.08.2020 nor replied to the notice dated 12.08.2020 and thus, the Petitioners were unable to submit its online bid. 7 The Petitioner has stated that they were shocked and Waghmare 6 / 35
30.wpst.92861.20a-for correction.doc surprised to receive letter dated 14.08.2020 addressed by Respondent No.2 informing the Petitioner that its request for extension of time to submit its online bid for the said project, cannot be considered in view of clause Nos.2.5.2, 2.7.10 and 2.7.11 of the Tender Document and thereby Petitioner's request was rejected. It was further informed to the Petitioner that the Petitioner's email had been sent after expiry of time of the said bid i.e. 18.07 hrs. on 06.08.2020 and that the time extension of 15 days which was granted, had been completed. The Petitioner being aggrieved and dissatisfied with the impugned letter rejecting Petitioner's request for extension of time, has filed the present Petition. 8 Mr. Surel S. Shah, the learned Counsel appearing for the Petitioner has submitted that the tender process suffers from arbitrariness since the Respondents had fixed upper limit for submission of tender which was contrary to most Government tenders where only lower limit can be fixed. Such fixing of upper limit for submission of tendered causes loss and injury to the revenue. He has submitted that the Petitioner was desirous to deposit more than 100% of threshold premium which was in the interest of the Government's revenue. It was the duty of Respondent Nos.1 to 4 to correct the error and the Government ought not to have rejected the Petitioner's participation on technical ground. It was a duty Waghmare 7 / 35
30.wpst.92861.20a-for correction.doc of the Respondent Nos.1 to 4 either to allow the Petitioner to participate and/or to extend the time for submission of the bid. 9 The learned Counsel for the Petitioner has further submitted that upon apprising the Respondent Nos.1 to 4 of the error in the non acceptance of the Petitioner's participation on technical grounds ought to have cancelled the tender process or should have extended the time. The Petitioner had not only paid the tender fees but also deposited EMD of Rs.5,50,000/- vide procurement Ref. No.10219013122689. He has relied upon the clauses 2.12 and 2.15 read with 2.6.3 in the Section-II- instructions to Promoters / Developers of the Tender Document. Under Clauses 2.12 the period of validity of the bid has been specified. Under Clause 2.12.1 the Bid was to remain valid for 180 days from the deadline for submission of the bid pursuant to clause 2.15 and sub clauses specified therein. Under clause 2.15 the deadline for upload and submission of Bid has been provided. Clause 2.15.1 provides that bids must be uploaded within the stipulated period and Clause 2.15.2 provides that the Inviter may, if required, extend the date of upload of Bids in which case all rights and obligations of the Inviter and the Promoters / Developers, previously subject to the deadline will thereafter be subject to the deadline extended. Clause 2.6.3 has been referred to therein which is Waghmare 8 / 35
30.wpst.92861.20a-for correction.doc the Clause providing for amendments to the Bid Document and it is provided that in order to afford prospective Promoters / Developers reasonable time to enable them to take into account the amendments in preparing their bid the Inviter may at his discretion extend the deadline for the submission of the bid. Such communication will be uploaded on website in the form of Addenda or by notice in the press as may be considered suitable. He has submitted that previously the bids were to be submitted before 21.07.2020, but the time was thereafter extended upto 6.8.2020. He has submitted that since there has previously been a relaxation of time in submission of the bid, Respondent Nos.1 to 4 could have relaxed the deadline for submission of the Petitioner's bid. 10 The learned Counsel for the Petitioner has in the context of relaxation of a condition in the Tender Document relied upon the decision of the Supreme Court in Vidarbha Irrigation Development Corporation vs. Anoj Kumar Garwala, where the Supreme Court has in paragraph 15 referred to its earlier decision in B.S.N. Joshi & Sons Ltd. vs. Nair Coal Services Ltd., (2006) 11 SCC 548. Paragraph 15 reads as under :
"15. Similarly in B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. [B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd., (2006) 11 SCC 548] this Court held as under: (SCC pp. 571-72, para 66) "(i) if there are essential conditions, the same must be Waghmare 9 / 35
30.wpst.92861.20a-for correction.doc adhered to;
(ii) if there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully;
(iii) if, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing;
(iv) the parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance with another part of tender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction;
(v) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with;..."
11 The learned Counsel for the Petitioner has submitted that the Supreme Court has clearly observed that where a deviation has been made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing. He has further relied upon paragraph 17 of the said decision and in particular where the Supreme Court has observed that the words used in the tender document cannot be ignored or treated as redundant or superfluous. Waghmare 10 / 35
30.wpst.92861.20a-for correction.doc They must be given meaning and their necessary significance. He has accordingly submitted that from the bare reading of Clause 2.15.2 it would apparent that the Inviter can relax the deadline for upload and submission of bids and since the Inviter / Respondent Nos.1 to 4 had made such relaxation in the deadline for uploading the submission of bids from 21.07.2020 to 06.08.2020, Respondent Nos.1 to 4 could have further relaxed the deadline, particularly when the Petitioner faced technical problem in submitting its bid. He has submitted that the impugned letter dated 14.08.2020 refusing to consider the Petitioner's request for extension of the deadline to submit its bid is erroneous and the Clauses 2.5.2, 2.7.10 and 2.7.1 relied upon in the impugned letter cannot in any way take away of the general power of relaxation. He has accordingly submitted that the impugned letter be set aside and the Petitioner's request for extension of time to submit its bids requires to be accepted by Respondent Nos.1 to 4 correcting the error of fixing the upper limit for submission of the tender.
12 Mr. V.S. Gokhale, learned Counsel for Respondent Nos.1 to 4 has placed reliance upon the Affidavit-in-Reply of Shashikant Keshavrao Thorat, Executive Engineer, Hydro Electric and Lift Irrigation, Design Division, Kolhapur, dated 26.09.2020. The Affidavit-in-Reply states that Waghmare 11 / 35
30.wpst.92861.20a-for correction.doc on 22.09.2020 an incorrect statement had been made before this Court by the learned A.G.P. on telephonic instructions of Respondent No.2 that the bid process had not commenced. It has been stated that on the next date after perusal of mail, the Respondent No.2 informed by text message to the concerned A.G.P. that the bids were already opened and were under scrutiny. Based on this incorrect statement made to this Court that the bid process had not commenced, this Court on 22.09.2020 had directed Respondent No.1 not to open the bids till the next date. The Deponent of the said affidavit apologised to this Court for the incorrect statement made to this Court.
13 The learned Counsel for Respondent Nos.1 to 4 has submitted that during the tender sale and submission period, a tab known as 'Seek Clarification" is provided at E-tender portal which is effective only for a fixed period. The bidders can raise their queries using this tab. The queries received on this tab is then clarified. He has submitted that the Petitioner failed to raise queries through the 'Seek Clarification' option during the fixed period. He has submitted that the E- tendering process is strictly followed by the key-dates as per Government norms and is clearly mentioned in the Tender Document. The clarifications to queries, extension in the bid submission period etc. are clearly visible on the Waghmare 12 / 35
30.wpst.92861.20a-for correction.doc E-tendering portal. He has submitted that in the past the Promoters expressed their difficulty in visiting the project site due to lock down imposed by the State Government due to Covid-19 epidemic and requested extension for bid submission. This was responded and accordingly the sale and bid upload original date 21.07.2020 (6.00 p.m.) was extended upto 06.08.2020 (5.00 p.m.). This means the time period of 15 days for submission of bids were already extended. The difficulties expressed by the Tenderers were genuine and were posted under 'Seek clarification' tab. He has submitted that it is clearly mentioned in clause 2.7.10 of the bid document that the proposals sent by e-mail or fax are not acceptable. The Petitioner sent a letter after closure of the bidding process i.e. on 6th August 2020 at 18.07 for extension of one day and that to at the wrong e-mail address of the concerned Division. Hence, the letter was not responded to as it was not acceptable. He has submitted that allowing a bidder to participate after closure of the bid is impossible. 14 Learned Counsel for Respondent Nos.1 to 4 has further submitted that the Petitioner has successfully uploaded their bid for another project viz. Uttarmad Project. Hence, the Petitioner was familiar with uploading its bid. However, Petitioner had not stated these facts in this Petition. Rather, the Petitioner has claimed a stay of the Uttarmad Waghmare 13 / 35
30.wpst.92861.20a-for correction.doc Project also, which is absolutely unjustified on the part of the Petitioner. He has submitted that the Petitioner has stalled the entire process of development of Uttarmad and Gadnadi Hydro Project thereby hampering the progress in development of green energy projects and causing financial loss to the State, due to loss in engery generation. He has submitted that the Petitioner has affected the tender of other promoters who successfully uploaded their bids for the said projects in the scheduled time.
15 Learned Counsel for Respondent Nos.1 to 4 has further relied upon the Affidavit-in-Reply of Respondent Nos.1 to 4 which has been affirmed by Shri Pravin Punjaram Birade, Executive Engineer, Hydro electric and Lift Irrigation Design Division, Kolhapur, dated 09.03.2021. This Affidavit had been filed in response to the Courts direction that paragraphs 7 and 8 of the Petition requires to be responded to as to whether the Respondents portal was working on 06.08.2020 till 5.00 p.m. properly or not. Further, these Respondents were also to mention whether on that day they received any other bids. This was to be supported by a certificate from their technician. Accordingly, paragraph 3 of the said Affidavit reads thus :
"3 I state that there is no technician in our office, however, to my personal knowledge our portal was Waghmare 14 / 35
30.wpst.92861.20a-for correction.doc working on date 06.08.2020 till 5.00 pm properly. I state that on that day my office has received in all 5 bids, details of it is as under :
Sr. Bid No. Bidder Submitted
No. Date
1. 3078869 Waterfront Constructions 06.08.2020
Private Ltd., (4.57 pm)
2. 3114220 M/s. Prathmesh Construction 06.08.2020
(1.15 pm)
3. 3119278 Ashoka Sthapatya Pvt. Ltd. 06.08.2020
(2.20 pm)
4 3119411 Gadre Marine Exports Private 06.08.2020
Ltd., (3.16 pm)
5. 3120691 Punjab Hydro Power Private 06.08.2020
Limited (4.01 pm)
Hereto annexed and marked as Exhibit 1 is the Copy of the actual Maharashtra Tenders E-portal."
Learned Counsel for Respondent Nos.1 to 4 has submitted that all the bidders mentioned in paragraph 3 of the Affidavit-in-Reply have successfully submitted their bids prior to the deadline, for submission of bids i.e. 06.08.2020 till 5.00 p.m. He has submitted that there is no merit in the Petition and the Petition be dismissed.
16 Mr. Rompal Kohli, learned Counsel appearing for Respondent No.5 vehemently opposed the Petition. He relies on the Affidavit-in-Reply of Anil S. Mundada, Chair person/authorised signatory of Respondent No.5 dated 23rd February, 2021. The Reply raises primary issues of locus Waghmare 15 / 35
30.wpst.92861.20a-for correction.doc of the Petitioner as well as maintainability of the Petition. He has submitted that Petitioner having failed to participate in the tender process, had no locus of whatsoever nature to challenge the tender process and/or seek cancellation / quashing of the tender process. He has further submitted that the Petitioner had not raised any grievances vis-a- vis the decision making process of the Respondent Authorities. It is not the case of the Petitioner that the terms and conditions of the Tender Document have been made to suit some of the bidders and have been altered to oust the Petitioner from the bidding process. In the absence of any such grievance raising question on the decision making process, the Petition is not maintainable and is contrary to the doctrine of 'judicial restraint in administrative action' and thus, does not warrant the invoking of the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. In this context, he has relied upon the decision of the Supreme Court in Bharat Coking Coal Ltd. and others vs. AMR Dev Prabha and others1.
17 The learned Counsel for Respondent No.5 has further submitted that the Petition has raised various disputed questions of fact which cannot be adjudicated by invoking the extraordinary jurisdiction under Article 226 of the Constitution of India. He has submitted that the 1 2020 SCC OnLine SC 335.
Waghmare 16 / 35
30.wpst.92861.20a-for correction.doc Petitioner having alternate remedy available ought not to have approached this Court under Article 226 of the Constitution of India. 18 The learned Counsel for the Respondent No.5 has submitted that the last day for submission of the bids/proposal was extended from 21.07.2020 to 06.08.2020. It is further stated that the date for purchasing the Bid Document and uploading of the bid commenced on 21.06.2020. Thus, the prospective bidders were given a period of more than 43 days to submit their bids/proposal as per the terms and conditions of the Tender Document. This period was the same for all bidders/ prospective bidders. Thus, the Petitioner inspite of having sufficient time to submit his bid / proposal failed to do so. There is no justification by the Petitioner as to why the Petitioner had to wait till the penultimate moment to upload its bid when there was sufficient time by the competent authority.
19 The learned Counsel for the Respondent No.5 has further submitted that the impugned letter dated 14.08.2020 shows that even the purported e-mail of the Petitioner requesting for extension of time was sent on a wrong e-mail address and only after a lapse of one week, the competent authority / Respondents received the request. He has submitted that the entire grievance raised by the Petitioner is an after Waghmare 17 / 35
30.wpst.92861.20a-for correction.doc thought as the Petitioner approached this Court raising frivolous grounds only to stall the entire tender process. He has submitted that the request of the Petitioner for extension of time is per se illegal as the same would amount to modifying/tweaking the terms of the Tender Document in order to benefit/ accommodate one particular bidder. 20 In this context, he has relied upon the decision of the Supreme Court in Maharashtra Housing Development Authority vs. Shapoorji Pallonji and Company Pvt. Ltd. 2 and others and in particular paragraphs 8 and 9 of the decision where it has been expressly held that the bids submitted by the Respondent Company was not a valid bid and thus, no directions can be issued in favour of the Respondent Company which would virtually confer on the Respondent Company a second opportunity, which cannot be countenanced. In that case there had been a lack of any timely response of the Respondent Company when the system had failed to generate an acknowledgment of the bid documents despite generation of acknowledgment in respect of the other bidders and there was absence of any glitch in the technology which strictly suggested that the bid submitted by the Respondent Company was not a valid bid. 21 The learned Counsel for Respondent No.5 has submitted that 2 (2018) 3 SCC 13 Waghmare 18 / 35
30.wpst.92861.20a-for correction.doc the interim order passed by this Court on 08.10.2020 directing the Respondent-State to stay its hands in the Gadnadi Hydro Electric Project has continued till date as a result of which the tender process cannot be completed. The Reply of Respondent No.5 states that the validity of bids expired on 02.02.2021 but upon the five bidders being called upon to extend their bids for a further period of six months by communication dated 21.01.2021 addressed by Respondent No.2 (annexed to the Reply), the bids have been extended by consent of the bidders. Thus, the tender process continues to remain active. He has accordingly submitted that there is no merit in the Petition and the stalling of the tender by the ad- interim order which has continued for a long period of time is not warranted and thus requires to be vacated and the Petition be dismissed. 22 We have considered the rival submissions. The Tender Document which had been issued by the Water Resources Department of the Government of Maharashtra states that online bids were invited for and on behalf of Government of Maharashtra by the Executive Engineer, Hydro Electric and Lift Irrigation Design Division, Kolhapur (Respondent No.2) from the Promoters / Developers intending to develop small hydro electric projects as Captive Power Producer / Independent Power Producer for electricity generation in the State of Maharashtra as Waghmare 19 / 35
30.wpst.92861.20a-for correction.doc stipulated in the hydro power policy declared vide Government of Maharashtra, Water Resources Department, Government Resolution dated 15th September, 2005. The relevant clauses of the Tender Document are in the instructions to Promoters / Developers in Section II of the Tender Document. Part C thereof is Preparation of Bids and under which Clauses 2.7.2, 2.7.10 and 2.7.11 are relevant which read as under:-
2.7.2 The Promoters / Developers shall upload the Post-
Qualification and Bid proposals duly filled and signed alongwith all necessary documents. The Promoter / Developer shall upload the document downloaded by him duly signed on all pages alongwith his proposal.
2.7.10 The proposals sent by e-mail or by fax will not not be acceptable.
2.7.11 GOMWRD will not be responsible for delay in uploading / receipt of proposals.
23. Further the documents comprising the bid which are to be uploaded by the Promoter / Developer are provided under clause 2.8 and which comprise of Envelope No.1 (Technical Envelope) and Envelope No.2 (Commercial Envelope). The Earnest Money Deposit is provided in clause 2.9, wherein in clause 2.9.2, it is provided that there shall be a total Earnest Money Deposited of Rs.5.50 lacs which shall be paid online as stipulated in clause No.1.1.2. This Clause provides for the said sum to be paid online by RTGS / NEFT and validity is one year from deadline for Waghmare 20 / 35
30.wpst.92861.20a-for correction.doc submission of online bid. The period of validity of the bid is provided under Clause 2.12 and the deadline for uploading and submission of bid is provided in Clause 2.15. These Clauses are relevant and read as under:-
2.12 PERIOD OF VALIDITY OF BID 2.12.1 Bid shall remain valid for 180 days from the deadline for submission of bid pursuant to clause 2.15 and sub clauses specified therein.
A bid valid for a shorter period will be rejected by the inviter as Non-responsive 2.12.2 In exceptional circumstances, the inviter may solicit the Promoter's/ Developer's consent to an extension of the period of validity. The request and the response thereto shall be made in writing (or by e-mail).
2.13 FORMAT OF BID.
2.13.1 The Promoter / Developer shall fill in bidding document downloaded from web site and upload the same in Commercial Envelop.
2.13.2 The bid duly filled in shall be signed by the Promoter / Developer or an person or persons duly authorised to legally bind the Promoter / Developer to the contract. Authorisation shall be established by written power of attorney accompanying the bid.
2.13.3 The bid shall contain no interlineation, erasers or over writing except as necessary to correct the bid, in which case such correction shall be initialed by the person signing the bid.
PART - D UPLOAD OF BID 2.14 MARKING OF BID 2.14.1 The Promoter / Developer shall upload his bid. Waghmare 21 / 35
30.wpst.92861.20a-for correction.doc 2.14.2 The Promoter / Developer shall make online payment for Tender document price.
2.14.3 The Promoter shall upload the documents a mentioned in Clause No.2.8.
2.14.4 The Promoter / Developer shall submit online EMD as per instruction while uploading the Bid Document. The Promoter / Developer shall strictly note that no bid will be opened without submission of EMD.
2.15 DEADLINE FOR UPLOAD AND SUBMISSION OF BID.
2.15.1 Bids must be uploaded within the stipulated period. 2.15.2 The inviter may, if required, extend this date of upload of bids pursuant to Clauses 2.6.3 in which case all rights and obligations of the inviter and the Promoters / Developers, previously subject to the deadline will thereafter be subject to the deadline extended.
2.16 Late Bids:-
Any Bid not uploaded by the inviter after the deadline for submission of bids prescribed in Clause 1.1.5 will not be accepted or if inadvertently accepted will be rejected.
24. It is clear from these clauses of the Tender Document which have been extracted above that the online bids which were invited were to be submitted in the manner set out in these clauses. The bid was to be remain valid for 180 days from the deadline for submission of the bid under clause 2.15. Clause 2.15 provided for the bids to be uploaded within the stipulated period and the inviter could extend this deadline of uploading of bids. Clause 2.6.3 which is mentioned in Clause 2.15 Waghmare 22 / 35
30.wpst.92861.20a-for correction.doc provided for amendment of the Bid Document. It is stated therein that in order to afford the Promoters / Developers reasonable time to enable them to take into account the amendments in preparing their bid the inviter may at his discretion extend the deadline for the submission of the bid. In the event of extension of uploading of bids, all rights and obligations of the inviter and the Promoters / Developers, previously subject to the deadline will thereafter be subject to the deadline extended.
25. It is apparent from the facts of the case that the bidders were requested to submit their online bid / proposal before 21st July, 2020.
However, the said time was extended upto to 6th August, 2020. This extension has been explained in the Affidavit in Reply on behalf of Respondent Nos. 1 to 4 dated 16th September, 2020. Paragraph 5 of the said Affidavit, reads thus:-
5. I say that, E-Tendering process was carried out for Gadnadi HEP and the Critical dates published on E-
tendering site is as under:-
1) Initial sale and Bid upload period:
25-Jun-2020 (10.30AM) to 21-Jul-2020 (6.00 PM) However in tab "Seek Clarification" provided at E-tender portal, Promoters expressed their difficulty in visiting the project site due to lockdown imposed by State Government due to Covid-19 epidemic and requested extension for Bid Submission. Accordingly the sale and Bid Upload original Date 21-Jul-2020 (6.00 PM) was extended upto 06-Aug-Waghmare 23 / 35
30.wpst.92861.20a-for correction.doc 2020 (5.00 PM). That means the time period of 15 days for submission of bids were already extended. The period was extended for the reason that the difficulties expressed by the tenderers were genuine and it was posted under 'Seek Clarification' tab.
26. The Respondent Nos.1 to 4 had extended the date of submission of the online bids as per difficulties expressed by the tenderers which were genuine and had been posted under the online tab "Seek Clarification" provided at E-tender portal. The Promoters / Developers had expressed the difficulty in visiting the project site due to lockdown imposed by the State Government due to Covid 19 epidemic and hence requested extension for bid submission. Thus, the sale and bid upload original date was extended by a period of 15 days for the submission of bids. The last extended date and time for uploading the bids for Gadnadi Hydro Electric Project now being 6th August, 2020 by 17.00 hrs. It has further been stated in the said Affidavit in Reply that the Petitioner had not raised any query through the "Seek Clarification"
option. It was only when the last extended date and time for uploading the bids was over i.e. after the closure of bidding process, the Petitioner sent letter 6th August, 2020 at 18.07 for extension of one day and that to at wrong e-mail address of the concerned Division. Clause 2.7.10 of Tender Document states that the proposal sent by e-mail or fax will not be Waghmare 24 / 35
30.wpst.92861.20a-for correction.doc acceptable. Further, clause 2.7.11 of the Tender Document states that the Government of Maharashtra, Water Resources Department will not be responsible for delay in uploading the proposals. It was thus clear by the clauses in the Tender Document that the online bids had to be submitted as per the deadline for submission of the bids and which was in the present case on 6th August, 2020 by 17.00 hrs. Allowing a bidder to participate in the online bidding procedure after expiry of the last extended date and time for uploading the bids was according to the Respondent Nos.1 to 4 impossible. Further, it has been made clear by Mr. Gokhale, learned AGP for Respondent Nos.1 to 4 that apart from the Petitioner, no one else had complained about any technical issues faced in the portal. The Petitioner was itself responsible for the delay caused in submission of its bid.
27. This Court by order dated 3rd March, 2021 observed that although the State Government had filed Affidavit in Reply dated 26th September, 2020, they had not explained and / or provided answer to paragraphs 7 and 8 in the Petition and the query raised about non- working of the portal on 6th August, 2020. This was thereafter explained by additional Affidavit in Reply filed on behalf of Respondent Nos.1 to 4. It has been stated in the said additional Affidavit in Reply that although Waghmare 25 / 35
30.wpst.92861.20a-for correction.doc there was no technician in the office of Respondent No.2, however, according to the deponent's personal knowledge their portal was working on the last extended date i.e. for submission of bids i.e. 6th August, 2020 till 5.00 p.m. properly. It has further been stated that on that date the office of the Respondent No.2 had received in all five bids prior to expiry of the deadline for submission of bids. These have been stated in paragraph 3 which is reproduced as under:-
3. I state that there is no technician in our office, however, to my person knowledge our portal was working on date 06.08.2020 till 5.00 p.m. properly. I state that on that day my office has received in all 5 bids, details of it is as under:
Sr.N Bid No. Bidder Submitted
o. Date
1 3078869 Waterfront Constructions Private 06.08.2020
Ltd. (4.57 pm)
2 3114220 M/s. Prathamesh Construction 06.08.2020
(1.15 pm)
3 3119278 Ashoka Sthapatya Pvt. Ltd. 06.08.2020
(2.20 pm)
4 3119411 Gadre Marine Exports Private Ltd. 06.08.2020
(3.16 pm)
5 3120691 Punjab Hydro Power Private Ltd. 06.08.2020
(4.01 pm)
28. It is thus seen from the said additional Affidavit in Reply that there were as many as five bidders who have successfully submitted their Waghmare 26 / 35
30.wpst.92861.20a-for correction.doc bids on the last extended date, i.e 6th August, 2020 till 5.00 p.m. The Respondent No.5 had infact submitted its bid as late as on 4.57 p.m. on 6th August, 2020 i.e. before the deadline of 5.00 p.m. From the said additional Affidavit in Reply it is clear that the Petitioner had failed and neglected to submit its bid prior to the deadline for uploading and submission of bids and thus the Petitioner's bid could not be accepted. It is further apparent from these Affidavits that the Petitioner could have raised the query in the "Seek Clarification" option on the website of the Respondent No.2. However, the Petitioner chose not to raise any queries through "Seek Clarification" option prior to the last extended date and time for uploading the bids. The Petitioner claims it had faced technical problem in uploading its bid on account of the Respondent Nos.1 to 4 having fixed upper limit for submission of tender. The Petitioner has stated that it was desirous of depositing more than 100% of threshold premium. However, due to the fixing of the upper limit, the Petitioner's bid was not accepted on technical ground. It is clear from the said Affidavits in Reply of Respondent Nos.1 to 4 that the Petitioner was the only bidder who had raised the issue of there being a technical problem.
As stated, as many as five bidders had submitted their bids prior to the expiry of the extended date and time of submission of bids. In the context of giving a second opportunity to a bidder to submit a bid after having Waghmare 27 / 35
30.wpst.92861.20a-for correction.doc failed to submit its bid prior to the expiry of the last date and time for uploading bids, the Supreme Court in Maharashtra Housing Development Authority (Supra) at paragraphs 8 and 9 held thus:-
8. "The above apart, in the counter affidavit filed by the NIC it has been stated that the bid uploaded by the first respondent was invalid as the representative(s) of the said respondent did not press the 'freeze button' which alone would have completed the bid process. In this regard, the NIC has further stated that on 27th July, 2017 there was no problem in the server during the relevant time period and as many as 427 bid documents (pertaining to other tenders) were uploaded between 1200 hours to 1300 hours on the said date i.e. 27th July, 2017. The NIC in its affidavit has further stated that if the first respondent had uploaded the documents at 1216 hours on 27th July, 2017 and it had not received the bid submission acknowledgment it still had 44 minutes to contact the NIC for help which help was not sought. In this regard, the NIC has further stated that the first respondent - bidder had participated in e-Tendering in Maharashtra Government portal earlier and thus it was familiar with the entire process."
9. "If the NIC, which had developed the e-portal in which bids were to be submitted and maintenance and upkeep of which was its responsibility, had stated in its affidavit what has been indicated above, we do not see how the repeated statements made on behalf of the first respondent that the bid documents can still be retrieved, if required by traveling beyond the Government of India guidelines, should commend to us for acceptance. The opinion rendered in this regard by the consultant of the first respondent Mr. Arun Omkarlal Gupta on which much stress and reliance has been placed by the first respondent could hardly be determinative of the question in a situation where the NIC which had developed the portal had stated before the Court on affidavit that retrieval of the documents even jointly with Maharashtra Housing Development Authority is not feasible or possible. That apart, lack of any timely response of the Waghmare 28 / 35
30.wpst.92861.20a-for correction.doc first respondent when the system had failed to generate an acknowledgment of the bid documents in a situation where the first respondent claims to have pressed the 'freeze button'; the generation of acknowledgments in respect of other bidders and the absence of any glitch in the technology would strongly indicate that the bid submitted by the first respondent was not a valid bid and the directions issued by the High Court in favour of the first respondent virtually confers on the said respondent a second opportunity which cannot be countenanced."
29. It thus clear from the decision that lack of any timely response of the Respondent Company when the system had failed to generate an acknowledgment of the bid documents, where the Respondent Company claims to have pressed the 'freeze button', the generation of acknowledgments in respect of other bidders and the absence of any glitch in any technology, the Supreme Court held that this would strongly indicate that the bid submitted by the Respondent Company was not a valid bid and the directions issued by the High Court in favour of the first Respondent would virtually confer on the said Respondent a second opportunity which cannot be countenanced. In the present case the Petitioner having failed to upload its bid and / or to raise a query in the "Seek Clarification" option prior to the expiry of the last date and time of uploading the bids i.e. 6th August, 2020 by 17.00 hrs., any direction allowing the Petitioner to submit its bid is virtually conferring on the Petitioner a second opportunity which is impermissible.Waghmare 29 / 35
30.wpst.92861.20a-for correction.doc
30. The Respondent No.5 in its Affidavit in Reply dated 23rd February, 2021, has raised issues of lack of locus of the Petitioner to file the Petition as well as on the maintainability of the Petition. The learned counsel on for Respondent No.5 has relied upon the decision of the Supreme Court in Bharat Coking Coak Ltd (Supra). In this decision the Supreme Court clearly held that in relation to tenders, Constitutional Courts can only be concerned with the lawfulness of the decision, and not its soundness. It would only be the decision making process which can be the subject matter of the judicial inquiry and not the end result. It is further held in the said decision that in tender matters writs are impermissible when the allegation is solely with regard to violation of a contractual right or duty. A person seeking relief must satisfy the Court that the right which he is seeking is in public law and not merely a contractual right. Paragraphs 29, 31, 32 and 33 are relevant and read as under:-
29. "The above apart, The scope of judicial review in tenders has been explored in depth in a catena of cases. It is settled that constitutional courts are concerned only with lawfulness of a decision, and not its soundness. 4 Central Coalfields Ltd.
v. SLLSML (Joint Venture Consortium), (2016) 8 SCC 622; Siemens Aktiengeselischaft & Siemens Ltd. v. DMRC Ltd., (2014) 11 SCC 288. Page | 15 Phrased differently, Courts ought not to sit in appeal over decisions of executive authorities or instrumentalities. Plausible decisions need not be overturned, and latitude ought to be granted to the State Waghmare 30 / 35
30.wpst.92861.20a-for correction.doc in exercise of executive power so that the constitutional separation of powers is not encroached upon.5 However, allegations of illegality, irrationality and procedural impropriety would be enough grounds for courts to assume jurisdiction and remedy such ills. This is especially true given our unique domestic circumstances, which have demonstrated the need for judicial intervention numerous times. Hence, it would only be the decision making process which would be the subject of judicial enquiry, and not the end result (save as may be necessary to guide determination of the former)."
31. "But merely because the accusations made are against the State or its instrumentalities doesn't mean that an aggrieved person can bypass established civil adjudicatory processes and directly seek writ relief. In determining whether to exercise their discretion, writ courts ought not only confine themselves to the identity of the opposite party but also to the nature of the dispute and of the relief prayed for. Thus, although every wrong has a remedy, depending upon the nature of the wrong there would be different forums for redress."
32. In cases where a constitutional right is infringed, writs would ordinarily be the appropriate remedy. In tender matters, such can be either when a party seeks to hold the State to its duty of treating all persons equally or prohibit it from acting arbitrarily; or when executive actions or legislative instruments are challenged for being in contravention to the freedom of carrying on trade and commerce. However, writs are impermissible when the allegation is solely with regard to violation of a contractual right or duty. Hence, the persons seeking writ relief must also actively satisfy the Court that the right it is seeking is one in public law, and not merely contractual. In doing so, a balance is maintained between the need for commercial freedom and the very real possibility of collusion, illegality and squandering of public resources.
33. "Such a proposition has been noticed by this Court even Waghmare 31 / 35
30.wpst.92861.20a-for correction.doc earlier in Jagdish Mandal v. State of Orissa6 in the following words:
"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully"
and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold."
31. The Petitioner in the present case is seeking a contractual right and not one in public law. Further, the Petitioner is calling upon this Court to test the soundness of the decision of Respondent Nos.1 to 4 in not accepting the bid of the Petitioner. It is Waghmare 32 / 35
30.wpst.92861.20a-for correction.doc clear from the decision of the Supreme Court that such Writs are impermissible and hence there is much substance in the preliminary issue raised by the learned Counsel for Respondent No.5. 32 The decision of the Supreme Court in Vidarbha Irrigation (Supra) which has been relied upon by the Petitioner is on the strict compliance of an essential tender condition. Paragraph 17 of the decision reads as under:-
17. It is clear even on a reading of this judgment that the words used in the tender document cannot be ignored or treated as redundant or superfluous - they must be given meaning and their necessary significance. Given the fact that in the present case, an essential tender condition which had to be strictly complied with was not so complied with, the appellant would have no power to condone lack of such strict compliance. Any such condonation, as has been done in the present case, would amount to perversity in the understanding or appreciation of the terms of the tender conditions, which must be interfered with by a constitutional Court.
33. It is thus clear from this decision that an essential tender condition has to be strictly complied with and that there is no power to condone lack of such strict compliance. In present case, the last extended date and time was made clear to all the bidders and strict compliance of which was called upon by the bidders in submitting their bids before the Waghmare 33 / 35
30.wpst.92861.20a-for correction.doc last extended date and time. Further, clause 2.15 of the Tender Document stipulated the deadline for uploading and submission of bids. The inviter could extend the deadline for uploading of bids under Clause 2.15.2. However, the rights and obligations of the inviter and Promoters / Developers would be subject to such deadline extended. In the present case, the deadline for submission of bids was extended to 6th August, 2020 which was in exercise of clause 2.15.2 and as per that clause the rights and obligations of the inviter of the bids as well as the Promoters / Developers was subject to such deadline. The Petitioner was the only bidder who had failed to submit its bid. In view of these facts, we find no infirmity in the impugned letter dated 14th August, 2020 which had rightly rejected the Petitioner's request for extension of time for submitting its bid through online 34 It is to be noted that the tender is for a public project i.e. Gadnadi Hydro Electric Project. The Tender Document states that it is for the electricity generation in the State of Maharashtra as submitted in the hydro power policy declared on 15th September, 2005. Any further extension of the date of submitting bids would further delay the implementation of the said project. Thus, it would not be in the public interest to quash and / or set aside the impugned letter dated 14th Waghmare 34 / 35
30.wpst.92861.20a-for correction.doc August, 2020 issued by Respondent No.2 rejecting the Petitioner's request for extension of the deadline to submit its bid.
35 We are of the view that no case has been made out by the Petitioner for grant of any relief sought for in the Petition. Accordingly, the Petition requires to be dismissed. Hence the following order:-
a) The Writ Petition is dismissed.
b) There shall be no order as to costs.
36. At this stage, learned Counsel Mr. Ajit Kenjale appearing on behalf of Petitioner submits that, ad-interim relief granted by this Court earlier on 15th March, 2021 be continued for further four weeks. Same is vehemently opposed by the learned Counsel appearing for the Respondents.
37. Considering the submissions made on behalf of learned Counsel for the parties and the issue involved in the Petition, we do not find any reason to accept the request made by learned Counsel for the Petitioner. Hence the request is rejected.
Digitally signed by Waishali S. Waishali S. Waghmare Waghmare [R.I. CHAGLA J.] [K.K. TATED, J.] Date:
2021.03.31 05:26:51 +0530 Waghmare 35 / 35