Punjab-Haryana High Court
M/S Shyamji Transport Co vs Food Corporation Of India & Ors on 23 December, 2014
Author: Augustine George Masih
Bench: Augustine George Masih
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Writ Petition No. 12046 of 2014
Date of Decision: 23.12.2014
M/s Shyamji Transport Company ..Petitioner
Versus
Food Corporation of India and others ..Respondents
CORAM: HON'BLE MR. JUSTICE S.J.VAZIFDAR, ACTING CHIEF JUSTICE.
HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
Present : Mr. Vivek Suri, Advocate, for the petitioner.
Mr. Sumeet Goel, Advocate, for respondents No.1 to 4.
Mr. Gurminder Singh, Sr. Advocate with
Mr. RPS Bara, Advocate, for respondent No.5.
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S.J.VAZIFDAR A.C.J. (Oral)
1. The petitioner-company has challenged the decision of the respondents rejecting their tender on the ground that their technical bids were non-responsive on account of their failure to comply with the provisions of Clause-8 of the bid document.
2. Admittedly, the tender submitted by the petitioner was not in conformity with Clause-8 which required the bidders to sign each page of the annexures and appendices of the Module Tender Form. It is the signed pages that were to be scanned and uploaded in e-procurement portal. Clause- 8 in so far as it is relevant reads as under:-
8. Submission of tender.
a) The tender shall be submitted online in two parts, viz.
technical bid and price bid.
b) All supporting documents except tender document have to be scanned and uploaded in the Technical bid. Price Bid as RAVINDER SHARMA 2014.12.23 16:12 I attest to the accuracy and authenticity of this document CWP No. 12046 of 2014 2 per Appendix VII provided in part-B, has to be scanned, encrypted and uploaded at the requisite places in the e-Procurement System.
c) The envelope/packet in online containing the technical bid shall include the following:-
i) All the Annexures and Appendices of MTF duly signed on each page by the tenderer should be scanned and uploaded in e-procurement portal.
ii) Earnest Money Deposit details alongwith receipt, if any.
iii) List of scanned copy of documents attached as per the format in Appendix-II duly signed by the Tenderer.
• The tenderer shall quote one uniform percentage below or above the schedule of rates as per Appendix VII (Price Bix). In case separate rates are quotes for Handling and transport operation, total estimated cost of both the operations for the contractual period taking into account the volume of operation is to be worked out on the basis of the tendered rates to arrive at the lowest rate.
d) Tender which do not comply with these instructions shall be summarily rejected."
3. As we have mentioned earlier, each page of all the annexures and appendices were to be signed and then scanned and uploaded. It is of vital importance to note that clause-8(d) itself makes this condition mandatory. Clause 8(d) expressly provides that tenders which do no comply with these instructions 'shall be summarily rejected'. This condition has not RAVINDER SHARMA 2014.12.23 16:12 I attest to the accuracy and authenticity of this document CWP No. 12046 of 2014 3 been challenged. It is mandatory and infact leaves the respondents with no discretion.
4. The judgment of the Supreme Court in Rashmi Metaliks Ltd. and another v. Kolkata Metropolitan Development Authority and others 2013(1) SCC 95 does not support the petitioner's case. Paragraphs No. 2 and 13 of the aforesaid judgment read as under:-
"2. The two terms of the subject 'Invitation to Tender' which are germane to the case in hand are Clauses (i) and (j) thereof, which read thus -
(i) A declaration in the form of Affidavit in a non judicial stamp paper should be submitted stating clearly that the applicant is not barred/delisted/blacklisted by any Government-Department/Government Undertaking/ Statutory Body/Municipality and of the like Government Bodies in DI Pipe-supply tender during last five years and if any such incident is found at any point of time, the tender will be cancelled summarily without assigning any reason whatsoever.
(j) Valid PAN No., VAT No., Copy of acknowledgement of latest Income Tax Return and Professional Tax Return."
xx xx xx
13. So far as Clause (j) of the detailed notice inviting E-tender No. 01/KMDA/MAT/CE/2013-2014 dated 10.5.2013 emanating from the office of the Chief Engineer is concerned, it seems to us that contrary to the conclusion in the impugned judgment, the clause is not an essential element or ingredient or concomitant of the subject NIT. In the course of hearing, the Income Tax Return has been filed by the Appellant-company and scrutinized by us. For the Assessment Year 2011-2012, the gross income of the Appellant-company was Rs. 15,34,05,627, although, for the succeeding Assessment Year 2012-2013, the income tax was NIL, but substantial tax had been deposited. We think that the RAVINDER SHARMA Income Tax Return would have assumed the character of an 2014.12.23 16:12 I attest to the accuracy and authenticity of this document CWP No. 12046 of 2014 4 essential term if one of the qualifications was either the gross income or the net income on which tax was attracted. In many cases this is a salutary stipulation, since it is indicative of the commercial standing and reliability of the tendering entity. This feature being absent, we think that the filing of the latest Income Tax Return was a collateral term, and accordingly the Tendering Authority ought to have brought this discrepancy to the notice of the Appellant-company and if even thereafter no rectification had been carried out, the position may have been appreciably different.
It has been asserted on behalf of the Appellant-company, and not denied by the learned Counsel for the Respondent-Authority, that the financial bid of the Appellant-company is substantially lower than that of the others, and, therefore, pecuniarily preferable."
The Supreme Court held that Clause (j) was not an essential element or ingredient or concomitant of the subject NIT and that it was only a collateral term. In the case before us, clause 8(d) makes it mandatory for the bidders to comply with the conditions stipulated therein. Clause-8, therefore, was an essential condition.
5. In these circumstances, the writ petition is dismissed.
(S.J.VAZIFDAR) ACTING CHIEF JUSTICE (AUGUSTINE GEORGE MASIH) JUDGE 23.12.2014 'ravinder' RAVINDER SHARMA 2014.12.23 16:12 I attest to the accuracy and authenticity of this document