Chattisgarh High Court
M/S Ashtech India Pvt. Ltd vs N.T.P.C. Limited on 25 August, 2023
Author: Ramesh Sinha
Bench: Ramesh Sinha
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPC No. 3812 of 2023
M/s Ashtech India Pvt. Ltd Through Its Director And Authorised
Representative, Mr. Sanjay Mandhania, Having Office At 9th Floor,
Ashford Centre, Opp. Peninsula Corporate Park, Lower Parel (W),
Mumbai 400013, Maharashtra.
---- Petitioner
Versus
NTPC Limited Through S.M. / A.G.M. (Contracts And Materials)
Unified Shared Service Centre, Central Procurement Group-1,
Western Region-II Head Quarter, Plot No. - 87, Sector-24, Atal
Nagar Nava Raipur, Raipur, Chhattisgarh-492101.
---- Respondent
(Cause-title taken from Case Information System) For Petitioner : Mr. Mateen Siddiqui, Advocate along with Mr. Pranav Jain, Advocate and Ms. Diksha Gouraha, Advocate.
For Respondent : Mr. B.D. Guru, Advocate.
Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri N.K. Chandravanshi, Judge Order on Board Per Ramesh Sinha, Chief Justice 25.08.2023
1. Heard Mr. Mateen Siddiqui, Advocate assisted by Mr. Pranav Jain, Advocate and Ms. Diksha Gouraha, Advocate for the petitioner. Also heard Mr. B.D. Guru, learned counsel appearing for the respondent.
2. The present writ petition has been filed by the petitioner with the following prayers:
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"10.1 The Hon'ble Court may kindly be pleased to issue an appropriate writ, order or direction, including in the nature of certiorari, to quash the respondent's decision dated 03.08.2023 (Annexure P/1) and 05.08.2023 (Annexure P/2) and 07.08.2023 (Annexure P/3) to reject as non-responsive the bid submitted by petitioner and all related, consequential and subsequent steps taken by the respondent in pursuance thereof;
10.2 The Hon'ble Court may kindly be pleased to issue an appropriate writ, order or direction, including in the nature of mandamus, to direct the respondent to consider the bid submitted by petitioner as responsive and allow the petitioner to participate in the bidding process, in accordance with the terms of the bid document issued by the respondent;
10.3 The Hon'ble Court may kindly be pleased to grant any other relief which this Hon'ble Court deems fit and proper in favor of the petitioner as per the facts & circumstances of the present case, in the interest of justice."
3. Learned counsel for the petitioner submits that the petitioner is a company duly registered under the Companies Act, 1956, having its registered Officer at : Floor 2, 30, Ashtech House, Popatwadi Kalbadevi Road, Mumbai - 400002, Maharashtra. The petitioner is a 3 leading processor, distributor, manufacture, importer and exporter of building material such as Fly Ash Ultra Fine Fly Ash (P500), Cement, Gypsum Powder, Ready Mix Plaster, Solid Concrete Blocks, Uni Pavers and Ready Mix Concrete etc.
4. Learned counsel for the petitioner submits that the Respondent, NTPC Ltd., is a Government of India ("GoI") enterprise, having its registered head office at NTPC Bhawan, SCOPE Complex, 7 Institutional Area, Lodi Road, New Delhi 110003. NTPC is India's largest energy conglomerate with roots planted way back in 1975 to accelerate power development in India. Since then it has established itself as the dominant power major with presence in the entire value chain of the power generation business.
5. Learned counsel further submits that the petitioner is carrying out similar projects with NTPC and with other such big companies like Reliance Industries, Reliance Power, Vedanta, Hindalco etc. for a long time. The petitioner is enlisted with NTPC to carry out execution of work with a capability of Rs. 50 crores. In fact, in two of the NTPC's Projects for which bidding was held recently, the petitioner had submitted identical Bank Guarantees with a similar clause and the same were accepted by the respondent. On 25.04.2023, NTPC issued bid document GEM/2023/B/3359265 ("Bid Document") on the Government e-Marketplace (GeM) portal inviting bids from companies for Excavation & Loading of pond ash at NTPC Singrauli Project Ash Dyke, transporting pond ash by mechanical means in closed containers/dumpers (covered with tarpaulin) with an 4 arrangement to avoid spillage/flying of ash and unloading at construction site of road projects of NHAI and other Central or State Government Road construction department / Authority/ PMGSY Road Project. The Terms and Conditions of the Bid Document contains the Notice Inviting Tender ("NIT"), Instruction to Bidders ("ITB"), GCC, SCC etc. ("Terms and Conditions") (collectively referred as "Bid Document").
6. It is further submitted by the learned counsel for the petitioner that the aggregate base value of the Singrauli Project is Rs.300 Crores and the rate contract will be finalized with a maximum of six (6) bidders. The Bid Document inter alia sets out the various relevant details pertaining to the bid process initiated by NTPC, including the instructions to bidders for submission of bids, the various steps and timeline to be followed in the bid process and the technical and financial eligibility criteria for bidders. As per the provisions of the Bid Document, bidders submitting bids are to be shortlisted through a Single Stage Two Envelope Bidding basis (Envelope-I: Techno- commercial Bid & Envelope-II: Price Bid).
7. Learned counsel for the petitioner submits that the Technical Bid (First Envelope) was required to contain the documents related to the Qualification Requirements specified in Clause V of the NIT. The Financial Bid (Second Envelope) was required to contain the tariff bid. In addition, as per Clause IV of the NIT, the bidders were required to submit Bid Security, Power of Attorney and Integrity Pact in a physical form.
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8. Learned counsel for the petitioner further submits that bidders are required to quote "Accepted % of base value" against the tender price. The bidder can quote a premium or discount to the tender price. The evaluated bid price of the bidders is ranked in ascending order as L-1, L-2 and so on based on the Accepted % of base value, with L-1 being the bidder who has quoted the maximum discount to the tender price. The L-2, L-3 and so on bidders may also become eligible for award of contract in case they agree to match the finalized L-1 bid price. In response to the bid document, the petitioner participated in the bid process and on 16.05.2023 submitted its bid, in due compliance with the provisions of the bid document. He also submits that the petitioner requested IndusInd Bank, a scheduled Indian Bank as approved by NTPC and mentioned in the bid document, to issue a Bank Guarantee to the NTPC as required and in the prescribed format under the bid document. IndusInd Bank, accordingly, issued a Bank Guarantee OGT0283230081414 dated 12.05.2023 of Rs. 50,00,000/- in favour of NTPC. The Bank Guarantee was verbatim to the format prescribed under the bid document. As standard Banking practice and in order to give a more strong and favourable Bank Guarantee in favour of NTPC, IndusInd Bank added the following guidelines to the Bank Guarantee:
"This Bank Guarantee is subject to the ICC Uniform Rules for Demand Guarantees (ICC publication No.
758) and shall be governed by and construed in all respects, in accordance with the Laws of India 6 ("URDG")."
9. Learned counsel for the petitioner further argued that in another similar Project of NTPC where the Petitioner had submitted a similar bid with a similar Bank Guarantee, on 25.07.2023, the Technical Bid of the Potitioner in that Project was rejected on the following purported ground, without any other reasons or justification:
"EMD Bank Guarantee does not compare verbatim with the format provided in the documents."
10. Learned counsel for the petitioner further argued that before the Technical Bid was to be opened in the present Project, by way of abundant caution and for the reason that the Bank Guarantee was rejected in the other Project, on 25.07.2023 itself, the Petitioner tried to submit an amended Bank Guarantee along with a representation dated 25.07.2023, informing them that the EMD Bank Guarantee is verbatim with just an addition of URDG clause. The Petitioner further informed that the URDG clause in no way dilutes the Bank Guarantee and the rights of NTPC in invocation of the Bank Guarantee as EMD during the tender evaluation process remains. Further, as way of abundant caution and to remove any doubts, the Petitioner had already obtained an amended Bank Guarantee with removal of the URDG clause and submitted the same to the NTPC along with the letter. However, the same was not accepted physically by the NTPC officials even though the Bid Document provided for the Bank Guarantee to be submitted physically. Thereafter, the Petitioner sent the same representation 7 along with the amended Bank Guarantee vide Email dated 29.07.2023 to the Respondent. Further, the bank vindicated the stand of the Petitioner and vide email dt. 02.08.2023 informed the Petitioner that additional clause of application of URDG does not in any way dilute the rights of the Respondent in invoking the Bank Guarantee. However, as a way of abundant caution, the bank also issued an amended bank guarantee removing the said clause.
11. Learned counsel for the petitioner further submits that even though the Technical Bid was not open, the Respondent vide email dated 03.08.2023 refused to take the amended Bank Guarantee on the ground that the Bank Guarantee as submitted earlier has an additional clause and not as per standard format. Further, NTPC held that as per Clause 23.1.1.3, the Petitioner's bid accordingly is not substantially responsive and that the Petitioner cannot submit an amended bank guarantee. Therefore, in effect, without opening the Technical Bid, the Respondent rejected the bid of the Petitioner, and the same is arbitrary and illegal.
12. Learned counsel for the petitioner further contended that the Petitioner received an email dated 05.08.2023 at 2:04 PM from the Respondent, stating that the technical evaluation of the bid has been completed and the results of the same are available on the GeM portal. Further, the Respondent stated that all the disqualified bidders can make a one-time representation to the Respondent challenging the rejection. The Petitioner logged in to the GeM portal and found out that without seeking any clarification or granting any opportunity to the Petitioner, the Technical Bid of the Petitioner was 8 rejected on the following purported ground without any reasons or justifications:
"The EMD BG is not acceptable. The submitted EMD BG (at the time of bid opening) is having material deviation "This Bank Guarantee is subject to the ICC Uniform Rules for Demand Guarantees (ICC publication No.758) and shall be governed by and construed in all respects, in accordance with the Laws of India," hence EMD BG is not acceptable so the bid has been rejected""
13. Learned counsel for the petitioner submits that as provided for on the GeM portal, the Petitioner immediately made a representation on the GeM portal on 06.08.2023, challenging the disqualification, and informed them that the EMD Bank Guarantee is verbatim with just an addition of URDG clause. The Petitioner further informed that the URDG clause in no way dilutes the Bank Guarantee and the rights of NTPC in invocation of the Bank Guarantee as EMD during the tender evaluation process remains. Further, as way of abundant caution and to remove any doubts, the Petitioner had already obtained an amended Bank Guarantee with removal of the URDG clause and submitted the same to the NTPC along with the letter. However, the Respondent on 07.08.2023 rejected the Petitioner's appeal on the same grounds as stated in its email dated 03.08.2023. The Impugned Decision is illegal and arbitrary being contrary to the terms of the Bid Document. In this regard, it is stated that Clause 14 of the ITB sets out the Bid Security required 9 to be furnished for Earnest Money by the Bidders. The relevant provision of the ITB has been excerpted below for convenient perusal:
"14.1 The Bidder shall furnish, as part of its Bid, a Bid Security in a separate sealed envelope for the amount and currency as stipulated in the NOTICE INVITING TENDER (NIT).
14.2 The format of the Bank Guarantee shall be as per GeM Portal or in accordance with the form of bank guarantee towards bid security included in the Bidding Documents(Section-VII). Bid Security shall remain valid for a period of forty-five (45) days beyond the original Bid validity period and beyond any extension of bid validity subsequently requested under relevant clause of ITB."
14.4 Any bid not accompanied by an acceptable bid security in a separate sealed envelope shall be rejected by the employer as being non-responsive and shall not be opened."
14. Learned counsel for the petitioner further argued that the Book 3 of Bidding Documents provides for forms and procedures. Form-1 provides for the Proforma for Bank Guarantee for Bid Security and Form-2 provides for the checklist to be submitted along with the Bank Guarantee. The relevant Form 2 checklist along with the Petitioner's compliance of the same has been excerpted below for 10 convenient perusal:
Sl.No. Details of Checks Yes/No 1. Is the BG on Non-judicial stamp paper/ e-stamp Yes
paper of appropriate value, as per Stamp Act?
2. Whether date, purpose of purchase of stamp Yes paper and name of the purchaser are indicated on the stamp paper?
(The date of purchase of stamp paper should be of any date on or before the date of execution of BG and the stamp paper should be purchased either in the name of the executing Bank or the Bidder on whose behalf the BG has been issued. The stamp paper (other than e-stamp paper) should be duly signed by the stamp vendor).
3. In case of BGs from Banks abroad, has the BG NA been executed on Letter Head of the Bank?
4. Has the executing officer of BG indicated his Yes name, designation and Power of Attorney No./Signing Power No. etc. on the BG?
5. Is each page of BG duly signed/initialed by Yes executant and whether stamp of Bank is affixed thereon? Whether the last page is signed with full particulars under seal of Bank as required in the prescribed proforma?
6. Does the Bank Guarantee compare verbatim Yes with the Proforma prescribed in the Bid (Only Documents? URDG clause added)
7. Are the factual details such as Bidding Yes Documents No./ Specification No., Amount of BG, validity of BG correctly mentioned in the BG?
8. Whether overwriting/ cutting, if any on the BG NA have been properly authenticated under signature & seal of executant?
9. Whether BG has been issued by a Bank in line Yes with the provisions of Bidding Documents?
10. In case BG has been issued by a Bank other NA than those specified in Bidding Document, is the BG confirmed by a Bank in India acceptable as per Bidding Document?
11From a plain reading of the above-mentioned clauses and requirements, Petitioner's Bank Guarantee qualifies as an "acceptable bid security" as it meets all the requirements and is in the Proforma provided for in the Bid Document.
15. Learned counsel for the petitioner submits that the Bank Guarantee submitted by the Petitioner is verbatim the Proforma with the only addition being the clause of URDG. In this regard, reference may be had to the table below which compares the Proforma Bank Guarantee as provided for in Form 1 with the Bank Guarantee submitted by the Petitioner along with the Bid:
Format of Bank Guarantee as per Bank Guarantee as submitted by the Bid Document the Petitioner Dear Sir, Dear Sir, In accordance with Invitation for In accordance with Invitation for Bids under your Bid Document No. Bids under your Bid Document GEM/2023/B/3359265, M/s No.............. M/s.................... ASHTECH (INDIA) PVT. LTD. Having its Registered/Head office having its Registered/Head Office at ............................. at ASHFORD CENTRE, 9TH (hereinafter called the "Bidder") FLOOR, OPP. PENINSULA PARK, wish to participate in the said bid LOWER PAREL (WEST), MUMBAI- for [Name of Package] 400013 (hereinafter called the ................................ "Bidder") wish to participate in the said bid for Transportation of Pond Ash of NTPC LIMITED.
As an irrevocable Bank Guarantee As an irrevocable Bank Guarantee against Bid Security for an amount against Bid Security for an amount of.............. valid for............ days of Rs. 50,00,000/- (Rupees Fifty from........... required to be Lacs only) valid for 180 days from submitted by the Bidder as a 04.05.2023 required to be condition precedent for submitted by the Bidder as a participation in the said bid which condition precedent for participation amount is liable to be forfeited on in the said bid which amount is the happening of any contingencies liable to be forfeited on the mentioned in the Bidding happening of any contingencies Documents. mentioned in the Bidding Documents.
We, the [name and address of the We, IndusInd Bank Limited, a 12 Bank] having our Head Office banking company incorporated and at .................. Guarantee and registered under Companies Act undertake to pay immediately on 1956 and having license to carry on demand by [name of the Employer] banking business under the (hereinafter called the "Employer") Banking Regulation Act, 1949, the amount of without any having its Registered Office at reservation, protest, demand and 2401, General Thimmayya Road, recourse. Any such demand made Cantonment, Pune-411991 and its by the 'Employer' shall be Corporate Office at 8th floor, Tower- conclusive and binding on us 1, One India Bulls Centre, 841, S.B. irrespective of any dispute or Marg, Elphinstone Road, Mumbai- difference raised by the Bidder. 400013 and its one Branch Office at Dr. Gopal Das Bhawan 28 Barakhamba Road, New Delhi-
110001 (hereinafter referred to as 'the Bank') guarantee and undertake to pay immediately on demand by NTPC Limited (hereinafter called the "Employer") the amount of Rs. 50,00,000/-
(Rupees Fifty Lacs Only) without any reservation, protest, demur and recourse. Any such demand made by the 'Employer shall be conclusive and binding on us irrespective of any dispute or difference raised by the Bidder.
This guarantee shall be irrevocable This guarantee shall be irrevocable and shall remain valid and shall remain valid upto upto.............. If any further 11.11.2023. If any further extension extension of this guarantee of this guarantee is required, the required, the same shall be same may be extended to such extended to such period (not period (not exceeding one year) on exceeding one year) on receiving receiving instructions from M/s instructions from M/s [Bidder's Ashtech India Pvt. Ltd. on whose name] on whose behalf this behalf this guarantee is issued. guarantee is issued.
Notwithstanding anything to the contrary contained in these presents, a. Our liability under this Bank Guarantee shall not exceed Rs.
50,00,000/- (Rupees Fifty Lacs only).
b. This Bank Guarantee shall be valid upto 11.11.2023 (Expiry Date) only;
c. We shall be liable to pay you the 13 guaranteed amount or any part thereof under this Bank Guarantee pay upon receipt of written demand on or before 26.12.2023 (the claim expiry date) d. In case no demand is made before the claim expiry date.
specified in Clause-c above, the Bank shall stand discharged from its liabilities under this Bank Guarantee, irrespective of the fact whether the original Bank Guarantee is returned back to us or not; and e. Any disputes or claims arising out of this Bank Guarantee are necessarily required to be enforced before the competent court of law within one (1) year from the date of demand, provided that such demand is received by the Bank before the claim expiry date specified in Clause c above.
This Bank Guarantee is subject to the ICC Uniform Rules for Demand Guarantees (ICC Publication No.
758) and shall be governed by and construed in all respects, in accordance with the Laws of India.
In witness whereof the Bank In witness whereof the Bank through its authorised officer, has through its authorised officer, has set its hand and stamp on this.... set its hand and stamp on this 12th Day of..... 20... at......... day of May 2023 at New Delhi. Signature Signature
16. Learned counsel for the petitioner submits that the clause that the guarantee is subject to the URDG does not dilute the guarantee or make it conditional. URDG cannot cause any prejudice to the NTPC, being beneficiary of the Bank Guarantee. The Uniform Rules for Demand Guarantees (URDG) 758 is a set of voluntary contractual rules, published by the International Chamber of 14 Commerce (ICC) with the aim of regularising and creating a set standard of international banking practice on demand guarantees and counter demand guarantees. Guarantees issued by guarantors and counter-guarantors, which incorporate the URDG, are entirely subject to their own terms, while incorporating beneficial terms of the URDG.
17. Learned counsel for the petitioner submits that the Petitioner's bid met all the other criteria and requirements and was responsive but the bid was incorrectly declared non-responsive solely on the ground that the Bank Guarantee had an additional clause of URDG. Impugned Decision is Arbitrary as Petitioner has submitted an amended Bank Guarantee without the URDG clause before opening the Technical Bid. Without prejudice to the above, it is submitted that even though the Petitioner submitted an amended Bank Guarantee before rejection of the Technical Bid, the Respondent illegally and erroneously refused to accept the amended Bank Guarantee by incorrectly relying on Clause 23.1.1.3 of the ITB. The relevant provision of the ITB has been excerpted below for convenient perusal (emphasis supplied):
23.1.1.1 The Employer will initially determine whether each Techno-Commercial bid is of acceptable quality, is generally complete and is substantially responsive to the Bidding Documents. For purposes of this determination, a substantially responsive bid is one that conforms to all the terms, conditions and specifications of the Bidding Documents without 15 material deviations, objections, conditionalities or reservations. A material deviation. objection, conditionality or reservation is one (1) that affects in any substantial way the scope, quality or performance of the contract: or (ii) that limits in any substantial way, inconsistent with the Bidding Documents, the Employer's rights or the Bidder's obligations under the contract; or (ii) whose rectification would unfairly affect the competitive position of other Bidders who are presenting substantially responsive bids. 23.1.1.3 The Employer's determination of a bid's responsiveness is to be based on the contents of the bid itself without recourse to extrinsic evidence, if a bid is not substantially responsive, it will be rejected by the Employer, and may not subsequently be made responsive by the Bidder by correction of the nonconformity."
18. Learned counsel for the petitioner submits that the Respondent, without application of mind and arbitrarily gave the same reasons for not accepting the amended Bank Guarantee as it gave in the rejection of the Petitioner's other bid in the Respondent's other Project, namely NTPC Vindhyachal. It is submitted that the Petitioner's Technical Bid was rejected by the Respondent without affording any opportunity to the Petitioner to rectify the purported infirmity in the Bank Guarantee. In this regard, Clause 23.1.7 of the ITB has been excerpted below for convenient perusal: 16
"23.1.7 Post Bid Discussions:
The Employer, at its discretion, may hold post bid discussions with any one or all the bidders at a mutually suitable date & time. However, it will not be construed from invitation/ holding of post bid discussions that the bidders have been considered eligible for opening of their Price Bid. The discussion will cover all the aspects of bidder's offer in the Techno- commercial proposal."
19. Learned counsel for the petitioner submits that the Petitioner, even though the Bank Guarantee submitted earlier was an acceptable bid security, before rejection of the Technical Bid, submitted to the Respondent an amended Bank Guarantee along with the letter dated 25.07.2023, which was verbatim to the Proforma in the Bid Documents and without the URDG clause. As such, the Petitioner's bid was substantially responsive and there was no material deviation. Therefore, the Respondent's refusal to accept the amended Bank Guarantee was arbitrary and unreasonable.
Impugned Decision is Arbitrary as NTPC has earlier accepted similar Bank Guarantee for a different project having same requirements.
20. Learned counsel for the petitioner submits that notably, the NTPC in a recent similar project being Bid Document dated 27.12.2022 being GEM/2023/2912457 for "Rate contract for Pond Ash Transportation from NTPC Barh ash dyke to road construction sites" ("NTPC Barh") had identical requirement for Bid Security 17 Bank Guarantee. The Petitioner submitted an identical Bank Guarantee containing the URDG clause which was accepted by the Respondent and subsequently the Petitioner was also issued Letter of Award and Contract for the said project, being the successful bidder.
21. Learned counsel for the petitioner submits that in another recent similar project by NTPC being Bid Document GEM/2022/B/2877993 dated 27.12.2023 for "Rate contract for Excavation & Loading of Pond Aal at NTPC NABINAGAR Ash Dyke" ("NTPC Nabinagar") having identical requirements, the Petitioner submitted an identical Bank Guarantee containing the URDG clause which was accepted by the Respondent and the Technical Bid of the Petitioner was held responsive, and the Petitioner was allowed to participate in the Financial Bidding Process.
23. Learned counsel for the petitioner submits that in light of the aforesaid, the Impugned Decision is patently erroneous, arbitrary and unjust, and the Respondent is barred by estoppel in rejecting the Bank Guarantee of the Petitioner. It is submitted that NTPC opened the financial bids submitted by bidders whose Bids were found to be responsive on 07.08.2023. As per the Bid Document, the bidders have to match the price quoted by the lowest bidder and to the best of the knowledge of the Petitioner, no LOA has been issued yet to any of the Six (6) lowest matching bidders.
24. Learned counsel for the petitioner submits that irreparable loss will be caused to Petitioner if the Petitioner's Technical Bid is not accepted and the Petitioner is not allowed to participate in the 18 bidding process further. It is reiterated that since its bid is erroneously being treated an non-responsive, Petitioner is not allowed to participate in allotment. It is submitted that irreparable loss will be caused to Petitioner if the LOA's are issued by NTPC without the participation of Petitioner, as NTPC may issue LOAs to the successful bidders to the exclusion of Petitioner. In view of the aforesaid facts and circumstances, Petitioner prays for urgent intervention of this Hon'ble Court, failing which irreparable injury will be caused to Petitioner.
25. Learned counsel appearing for the respondent submits that the NTPC has rejected the bid of the petitioner as non-responsive because the EMD Bank guarantee submitted by the petitioner was not in accordance with the format of Bank guarantee towards bid security included in the bidding documents. He further submits that the Clause 23.1.1.3 of the Instruction to the Bid is very specific which says that "the Employer's determination of a bid's responsiveness is to be based on the contents of the bid itself without recourse to extrinsic evidence. If a bid is not substantially responsive, it will be rejected by the employer and may not subsequently be made responsive by the bidder by correction of the non-conformity". It means the responsiveness is to be decided based on the bid as well as the documents submitted along with the bid at the time of Techno commercial bid opening. It is further submitted by him that the Clause IV of the NIT stipulated as under:
"All bids must be accompanied by Bid Security, Power of Attorney and Integrity Pact. Integrity Pact shall be 19 submitted as per instruction mentioned in ITB/BDS. Bid Security shall be submitted in a sealed envelope separately in physical form by the stipulated bid submission closing date and time at the address given below.
ANY BID NOT ACCOMPANIED BY AN ACCEPTABLE BID SECURITY AND INTEGRITY PACT SHALL BE REJECTED BY THE EMPLOYER AS BEING NON-
RESPONSIVE AND SHALL NOT BE OPENED."
26. He further submits that the Clause 14.2 of Section-II of Instruction to bidders stipulates as under:
"The format of the Bank Guarantee shall be as per GeM Portal or in accordance with the form ob Bank Guarantee towards bid security included in the bidding documents......"
27. In addition to aforesaid Clause, Notes 4 of Form 1 (Proforma for Bank Guarantee for bid security) of Book 3 of 3 of Forms and Procedures is stipulated as under:
"While getting the Bank Guarantee issued, Bidders are required to ensure compliance to the points mentioned in Bank Guarantee Verification Check List in the bidding documents. Bidders are required to fill up this Check List and enclose the same along with the Bank Guarantee."20
28. In addition to above, Sl.No. 6 of BG Verification checklist at Form 2 of Book 3 of 3 of forms and procedures is stipulated as under:
Sl.No. Details of Checks Yes/No
6 Does the Bank Guarantee compare
verbatim with the proforma
prescribed in the Bid Documents ?
29. Learned counsel appearing for the respondent submits that in view of the above, it is clear that bidder has to submit the EMD BD in verbatim with the proforma prescribed in the bid documents. However, EMD BG submitted by the petitioner contained the additional clause which is not as per the standard format provided in the bidding documents. Subsequently, the technical bid of the petitioner was rejected on 31.07.2023 and 03.08.2023 as EMD Bank Guarantee does not compare verbatim with the format provided in the bid document. The price bids of other technically qualified bidders were opened on 07.08.2023 as per the terms and conditions of the tender document awarded on 17.08.2023. Thereafter, petitioner had submitted representation on GeM portal through e-mail challenging the disqualification. NTPC has replied to the said representation on GeM portal, which is reads as under:
"On perusal of the verbatim of the aforesaid BG, it has been noted that the following clause has been mentioned in the BG which is not as per the standard format provided in the tender documents. This Bank Guarantee is subject to the ICC Uniform Rules for Demand Guarantees (ICC publication No. 758) and 21 shall be governed by and construed in all respects, in accordance with the Laws of India. Cl.14.2 of Section-II of Instruction to Bidders stipulates that "The format of the Bank Guarantee shall be as per GeM Portal or in accordance with the form of bank guarantee towards bid security included in the Bidding Documents......."
Cl.14.4 of Section-II of Instruction to bidders stipulates that "Any bid not accompanied by an acceptable bid security in a separate sealed envelope shall be rejected by the employer as being non-responsive and shall not be opened." Note 4 of PROFORMA FOR BANK GUARANTEE FOR BID SECURITY under Section VIII Book 3 of 3 stipulates that "While getting the Bank Guarantee issued, Bidders are required to ensure compliance to the points mentioned in Bank Guarantee Verification Check List in the Bidding Documents." As the EMD Bank Guarantee submitted by M/s. ASHTECH (INDIA) PRIVATE LIMITED in not in accordance with the form of bank guarantee towards bid security included in the Bidding Document, therefore, bid has been considered non-responsive and rejected as per provisions of bidding document."
30. Learned counsel appearing for the respondent submits that the other bidders are also participated in the bid following the instruction in a strict manner, one can not be permitted to waive the same, otherwise 22 the other bidders also question the bid procedure. Even the law is also well settled that where a statue provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and as far as the petitioner contention that, the same addition to the BG has been permitted in other projects is concerned, it is submitted that if a wrong committed earlier, the same cannot be allowed to be perpetuated.
31. We have heard learned counsel for the parties and perused the prayers and the pleadings made in the present petition.
32. The facts and issue involved in this petition is identical to the one which was dismissed by this Bench on 24.08.2023 being WPC No. 3779 of 2023 (M/s Ashtech India Pvt. Ltd. v. NTPC Limited) and as such no interference is called for by this Court in exercise of its extraordinary power under Article 226 of the Constitution of India for the relief claimed by the petitioner.
33. In view of the above, this writ petition also stands dismissed in terms of the order dated 24.08.2023 passed in WPC No. 3779 of 2023 (M/s Ashtech India Pvt. Ltd. v. NTPC Limited).
Sd/- Sd/-
(N.K. Chandravanshi) (Ramesh Sinha)
Judge Chief Justice
ved