Rajasthan High Court - Jaipur
M/S Gis Consortium India Pvt vs State (Revenu Department)Anr on 20 May, 2016
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR O R D E R IN S.B. CIVIL WRIT PETITION NO.3405/2016 M/s. GIS Consortium India Pvt. Ltd. Vs. State of Rajasthan & Anr. Date of Order : May 20th, 2016 HON'BLE MR. JUSTICE ALOK SHARMA Mr. R.N. Mathur, Sr. Advocate with Mr. Samit Bishnoi, for the petitioner-Company. Mr. Rajendra Prasad, Sr. Advocate & AAG with Mr. Jatin Agarwal, for the respondents. BY THE COURT
The petitioner-Company (hereinafter the petitioner) seeks an appropriate writ, order or direction of this Court to the respondents to consider its bid for Establishment of Ground Control Network, Conducting Survey, Re-Survey and Updation of Survey and Settlement (Records) Operations (hereinafter the works) in Rajasthan in response to the E-bid Notice/Tender notice dated 07.01.2016. The intervention of the Court and directions as prayed for are sought on the ground that for reason of technical error at the end of the respondent's server (E-portal), the technical bid of the petitioner could not be uploaded before the bid closing time of 6:00 PM on 23.02.2016 and in the circumstances non-consideration of the petitioner's bid is wholly arbitrary, discriminatory and against the public interest of maximum participation in the bidding process.
The petitioner claims to be an experienced and established company in the field of GIS service and special data provider for creative solutions in the areas of natural resources management, land information systems, Urban Development & Planning and Geographical Information System applications. It has been submitted that the Chief Executive Officer, RBAAS & Settlement Commissioner, Rajasthan, Jaipur issued tender notice No.F-3(1)/Survey/Re-Survey/Tender/RBAAS/2014-15/Part-II/547 dated 07.01.2016 and E-bid notice No.NIB-CEO RBAAS and SCR/Establishment GCN and Survey/Re-survey/2015-16/2. Online bids were invited for the works described under E-Dharti (NLRMP) Programme from eligible bidders. The bid process included a single stage two envelope bid i.e. technical and financial bid, which were to be submitted online by 6 PM on 23.02.2016 and in hard copy form as well the following day by 11 AM only by those who had made their online bids. Having the requisite eligibility, the petitioner states to have paid bid fee of Rs.10,000/-, bid processing fee of Rs.1,000/- in the form of demand draft and submitted bid security of Rs.202 lakhs through bid guarantee No.4/2016 dated 22.02.2016 issued by Syndicate Bank, Shipra Suncity, Ghaziabad as the petitioner intended to participate for all the notified regions.
The case of the petitioner is that as a bidder, it exercised requisite prudence/diligence and visited the e-portal/website of the Government of Rajasthan relating to e-tendering prior to uploading it's bid documents in response to the E-bid notice dated 07.01.2016 . The concerned website specifically stated that there was no restriction on the size of the bid documents which could be uploaded into the notified E-portal/server identified by the respondent-Department. It was specifically provided under the Special Instructions to the Contractors/Bidders for the submission of online bids through the State Public Procurement Portal (hereinafter special instructions) that there was no limit on the size of the file uploaded at the server end. However, the upload limit was to be decided by the memory available at the client system as well as network bandwidth at the client side at that point of time. And prior to uploading the bid documents, the petitioner by way of abundant caution had successfully uploaded dummy documents of approximately 40-45 MB file size on 23.01.2016 to ensure that if bid could be uploaded without any glitch. It was submitted that the financial bid, bank guarantee for EMD, bid fee and bid processing fee were successfully uploaded on the server of the respondents-Department. However in the course of attempting to upload the technical bid of about 100 MB file size, the server of the respondents-Department is alleged to have not accepted the bid documents instead indicating Java Heap Space Error. The petitioner as advised by the customer service of the notified website / E-portal was advised to reduce the file size to 70 MB but again was confronted with the same error as earlier displayed i.e. Java Heap Space Error. Thereafter the petitioner was further advised to reduce the file size to 20 MB. The petitioner in the circumstances had to re-work the arrangement of its documents to ensure that the size of the documents to be uploaded did not exceed the then recommended maximum size of 20 MB. This exercise however consumed substantial time and when after substantial efforts the technical bid was finally uploaded, before the freeze button, by which the bid could be submitted, could not be pressed, as it was 6:00 PM 23.02.2016 and the time for submission of bid had expired with the bid time out message indicated on the petitioner's computer screen. The case of the petitioner is that vide letter dated 23.02.2016 it sought to submit the hard copy of the bid with the respondents prior to 11 AM the following day but to no avail.
Thus the case of the petitioner is that the non-submission of the technical bid electronically before the bid time was out was attributable to a glitch in the respondent's server/system and on that count it cannot be excluded from consideration of its bid by the respondents at par with others. It has been alleged that the mix up with regard to the size of the bid documents that could be uploaded into the designated portal was relatable to the non-disclosure on the part of the respondents of the specific file size for submitting the bid. This lacunae in the e-bid notice introduced uncertainity for the bidders such as the petitioner to its prejudice despite it being fully qualified and eager to participate in the bidding process for the works in issue. The non-consideration of the petitioner's bid submitted in physical form before 11 AM on 24.02.2016 has, in the circumstances, been impugned as arbitrary, unjust and contrary to the principles of fair play. It has been submitted that the consideration of the petitioner's physical bid submitted before 11:00 AM on 24.02.2016 would not cause any prejudice to the respondents and other bidders but be in the public interest of wider participation for finding the most competitive price for the works in issue.
Reply to the petition has been filed. It has been submitted that the petitioner has an alternative remedy under the Rajasthan Transparency in Public Procurement Act, 2012 (hereinafter the Act of 2012). It could aggrieved of its exclusion file a first appeal before the Principal Secretary, Revenue Department, Secretariate, Jaipur within the prescribed time and thereafter it warranted even a second appeal. It has been submitted that the bidding documents under Clause 13.1 also clearly spelt out this remedy. The petition therefore deserves to be dismissed at the threshold on the ground of availability of alternative remedy. It has been then submitted that even otherwise the writ petition is a mere afterthought inasmuch as the last date for submission of the e-bid was 23.02.2016 and e-bids (technical) as made by the eight other for the work in issue were opened on 24.02.2016. The writ petition has been filed on 08.03.2016 after an unexplained delay of 12 days when the financial bid of those found technically eligible was proposed to be opened on 10.03.2016. In the circumstances, the petition suffers from laches as no explanation has been tendered for the delay in filing the writ petition. On merits, tt has been submitted that on the petitioner's own admission its e-bid was not submitted by the bid close time i.e. 6:00 PM on 23.02.2016. Consequently the attempt to submit hard copy of bid on 24.02.2016 was misdirected as such bids were to be accepted under the tender condition only in respect of those who had successfully made online bids on the e-procurement portal of the respondents. It has been submitted that notification dated 16.09.2015 published in the Rajasthan Gazette on 17.09.2015 makes electronic procurement compulsory for the works having estimated value of Rs.10 lakhs or more. The present bid is for about 400 crore. It has been pointed out that the respondents had earlier also floated a tender for the same work as in the instant case, vide e-bid notice dated 15.10.2015 with the same condition as to size of documents (no limitation). The petitioner had made an e-bid successfully uploading its bid documents on the same portal as in the present bid. The said tender process was however terminated as at the relevant time no bidder was found to be technically eligible. It has been submitted that in the circumstances, the petitioner cannot set up ignorance of the e-bidding process of the respondent-Department and the entire case now set up is only an afterthought to somehow overcome the petitioner's failure to submit its e-bid before the bid closing time of 6:00 PM on 23.02.2016. It has been submitted that the respondents cannot under the Act of 2012 and Rules of 2013 accept any bid the bid closing time on the e-procurement portal. It has been reiterated that there was no maximum size limit of the documents which could be uploaded by the bidders. However, the upload was dependant upon the network bandwidth and the memory available at the client system at the point of time where the e-bid was sought to be uploaded. It has been submitted that the e-procurement portal as an advisory only specified the minimum requirement while uploading documents and as a mere suggestion was made clear that documents be scanned in 75-100 dpi such that clarity was maintained and the file size reduced. Timely uploading of the e-bid remained wholly to the petitioner's (bidder) account and responsibility. It has been submitted that lighter the size of the bidding document the smother it is to get uploaded and the petitioner was aware of the entire process having earlier successfully taken part in the e-bid for the same work. It has been also pointed out that the petitioner had more than a month to upload the bid documents but at its own peril chose to upload them only at the last moment when it admittedly failed to do so within the bid closing time or failed in freezing the allegedly uploaded file before the said time ran out. It has been submitted that the e-portal of the respondents works and was at the relevant time working in full capacity without any glitch as evidenced from the fact that eight other bidders successfully submitted their e-bids to the respondents with regard to the work in issue before the bid close time. Relying on Rule 54 of the Rules of 2013, it has been submitted that the receipt of bids after last date of submission is prohibited and any directions to now consider the petitioner's bid would be contrary to law.
Mr. R.N. Mathur, Sr. Advocate appearing with Mr. Samit Bishnoi, for the petitioner has submitted that the failure to upload the e-bid by the petitioner was not for reason of any problem at the server end of the State Public Procurement Portal. It has been submitted that for uploading the scanned bid documents lodged in its system, the petitioner had to login on the respondent's server/website. This was indeed one while uploading Java Heap Space error was displayed on the petitioner's computer screen. The error was thus clearly attributable to the capacity (in fact lack of it) of the respondent's server, submitted counsel. For this the petitioner cannot thus be held liable for the non-submission of its e-bid despite being a serious bidder fully qualified and eligible and suffer the consequences of non-submission. It has been submitted that during the process of uploading, the petitioner was well-versed with the e-portal/website server. Therefore the client system as referred to in Clause 13 of the Special Instructions essentially and necessarily meant and indicated the respondents' server (e-portal/website). Seeking to explain the whole process of e-bidding, it was submitted that the three entities involved are the bidder, the Department which maintains the E-portal and Procuring Department. Counsel submitted that in this scheme of arrangement, for the department which maintain the E-portal, the Procuring Department is the client whose system has to be duly configured for receipt of e-bids without reference to file size limit as indicated in Clause 13 of the Special Instructions. It was submitted that before uploading bid documents, the same were scanned by the petitioner and stored in its system, which is the process before uploading and therefore there could not be any logic and reason to identify the words client system with the bidder's system because documents were already lying saved in the bidder's system. Counsel submitted that therefore it was the efficiency of the respondents' server which as per Clause 13 of the the Special Instructions was be decisive for completion of upholding process. It has been submitted that in the process of uploading the bid, the bidder only interacts with the server on which the upload is to be made and is driven by the options given by the server and therefore the reference to network bandwidth available at the client system in Clause 13 of the Special Instructions cannot relate to the configuration of the computer machine and the bandwidth available with the bidders.
Mr. R.N. Mathur, Sr. Advocate further submitted in the alternative that Clause 13 of the Special Instructions was self contradictory and hence ambiguous as on the one hand it spelt out that there was no limit on the file size of the e-bids and on the other hand stated that the uphold was limited by network bandwidth speed and defined memory configuration. It was submitted that the ambiguity resulted in the petitioner first trying to upload file size of 100 MB and then with Java Heap Space error display on its computer screen and progressive reduction of the file size first to 70 MB and then to 20 MB on suggestion from customer service of the State Portal, it lost crucial time resulting in the e-bid not being submitted within prescribed time. This ambiguity in Clause 13 of the Special Instructions vitiates the entire bidding process as the resultant outcome was the unintended exclusion from consideration of qualified and eligible bidder.
Mr. Rajendra Prasad, Sr. Advocate and AAG appearing with Mr. Jatin Agarwal, for the respondents has submitted that the matter involved in the petition is of a technical in nature with regard to the file size limit in the submission of an e-bid pursuant to the E-tender in issue. The matter has been considered by the department which maintains the E-Portal/Website for electronic procurement for the State of Rajasthan and has the requisite expertise in the matter of e-bids. No mala fides have been attributed and there being no palpable arbitrariness in the exclusion of the petitioner which admittedly failed to submit its E-tender by the end of bid close time i.e. 6 PM on 23.02.2016, the petition should be dismissed. It has been further submitted that the petitioner had the alternative remedy under Section 38 of the Act of 2012 both by way of first appeal and second appeal but did not avail it and instead approached this Court directly without just cause. The bid documents under Clause 13.1 of the tender conditions also clearly spelt out the said alternative remedy. It has been submitted that the petitioner has not been able to make out any of the well recognized exceptions to alternative remedy such as of lack of jurisdiction, denial of principles of natural justice or breach of fundamental rights and hence the petition be dismissed on this court. It is submitted that in the circumstances, there is no warrant for invoking the extraordinary jurisdiction of this Court as prayed for by the petitioner and directing the consideration of its bid which admittedly was not made within the bid closing timemore particularly in view of Rule 52 of the Rules of 2013 which prohibits the acceptance and consideration of the bids made subsequent to the bid closing time. Mr. Prasad further submitted that the writ petition also appears to an afterthought inasmuch as the petitioner has laid a challenge to the alleged arbitrary non-consideration of its e-bid for reasons allegedly attributable to the respondents after an unexplained delay of over 12 days and just prior to the opening of technical bid of eight successful bidders whose technical bids have been accepted. Mr. Rajendra Prasad submitted that the non-submission of the technical bid by the petitioner was clearly attributable to the poor bandwidth at its end and / or also the apparent limitation of its system/computer hardware. It was submitted that the petitioner's purported innocence of the e-tender process, the purported ambiguity of Clause No.13 of the Special Instructionsand the resultant confusion to its prejudice leading to non-submission of the bid documents by 6:00 PM on 23.02.2016 is simulated and not real inasmuch in an earlier e-bid through under the same process and instructions as provided in respect of NIT dated 07.01.2016, the petitioner had successfully participated and submitted its two part bid financial and technical bid pursuant to e-notice dated 15.10.2015 which however was terminated for reasons of none of the bidders then being found to be technically eligible. Mr. Rajendra Prasad submitted that the case set up on the right to consideration of a hard copy of the bid purportedly submitted before 11:00 AM on 24.02.2016 is completely without foundation as under the terms of NIT hard copies were to be accepted only of those bidders who had successfully made online bids.
Mr. Rajendra Prasad has emphatically submitted that the file size issue agitated by the petitioner is a red herring. There was no maximum file size which could be receipted by the server of the respondents where the e-bid were to be submitted. Yet the uploading of the bid documents by the bidders was dependant upon the memory available at the client system i.e. the petitioner's system as well as Network bandwidth available at its end at the point where e-bid was to be / was being uploaded. He pointed out that the e-procurement portal clearly set out the minimum requirement while uploading a document and not the maximum only advised that the documents be scanned in 75-100 DPI so that clarity be maintained and the size of the file reduced for the reasons that lesser the size of the bid document the smoother and easier is the upload. It was submitted that the copy of the Special Instructions to bidders as well as Frequently asked questions (FAQs) were available on the State Public Procurement Portal and the petitioner ought to have educated itself therewith and ensured technical support at its end such that its e-bid was submitted within the time limit of 6:00 PM on 23.02.2016. It was then pointed out that in any event the failure of the petitioner to submit its e-bid for reason of time for submission of the bid running out was its own doing inasmuch as the petitioner had more than a month to upload the bid documents but chose to upload them at the last moment when it has failed to successfully do so within the stipulated time or press the freeze button of the uploaded file for reasons not attributable to the respondents. It has been prayed that in the circumstances, the petition is without force and liable to be dismissed.
Heard. Considered.
A reading of Rule 52 of the Rules of 2013 indicates that bids were acceptable upto time notified. The contract in issue is for about Rs.400 crores and in terms of the notification dated 07.01.2016 only e-procurement was permissible. Consequently vide NIT/e-bid dated 07.01.2016 e-bids were invited from prospective bidders for the works as described . Rule 52 of the Rules of 2013 is a mandatory provision and no deviation therefrom permissible. In the instant case, it is an admitted fact that the petitioner did not submit its e-bid in respect of work in issue by 6:00 AM on 23.02.2016.
The issue that arises is as to whether the non-submission of e-bid within prescribed time by the petitioner was attributable to it or to the respondents.
Clause 5 of the e-bid notice dated 07.01.2016 provides that the procedure for submission of bids shall be as provided on the State Public Procurement Portal. It is thus evident that instructions provided on the website/e-portal as aforesaid were part of the documents relating to the bid process. In fact the petitioner has itself filed Annexure-4 which are the Special Instructions to contractors/bidders in support of its writ petitionas downloaded from the State Public Procurement Portal. Clause No.13 of the aforesaid Special Instructions states that there was no limit on the file size uploaded at the server end maintained by the Department which maintains the e-portal. It was however clarified that even though there was no limit on the file size upload, the upload itself would be dependant upon the memory available at the client system as well as the network bandwidth available at the client side at that point of time. As an advisory, it was also suggested in the aforesaid Clause No.13 that documents be scanned in 75-100 DPI so that clarity was maintained and the size of the file also got reduced in view of the fact that such reduction of file would help in quick uploading even at very low bandwidth speed. Clause No.14 of the Special Instructions provided that the bidders has to click on the freeze bid button to ensure that the the bid submission process was complete. It was made clear that the bids which were not frozen were to be considered as incomplete/invalid bids and not liable to be considered for evaluation purposes. Aside of the State Public Procurement Portal also included frequently asked question (FAQs) to facilitate understanding of the e-bid process by the perspective bidders. On the question as to what was the requirement of the client machine to access the e-procurement site, it was provided that to access the e-procurement system one indeed a computer system with pentium IV configuration and above along with an internet connection. It was recommended that connection can be a dedicated connection for smooth operation of the system, the browser should be Java enabled (Mozilla Firefox / Google Chrome / Internet Explorer), the Driver for the Digital Signature Certificate (DSC) was to be installed in the system once. The drivers are provided by the DSC providers along with DSC (in CD or can be downloaded). Java Runtime Environment (JRC) should be installed in the client system which would be downloaded from the download links of the e-procurement system. A categorical note made was that the client system should have administrator privilege to install the DSC drivers and JRE. I am of the considered view that the words client system in the aforesaid contextnecessarily refer to the bidder registered with the e-portal for accessing its servers. Another question in the FAQs related to whether the bidders should have anti virus software in my client system. In response theretothe answer on the State Public Procurement Portal provided that all bidders were advised to install and keep an update of the signature of the Anti-virus as bid with virus infected files were likely to be rejected by the e-procurement portal.
A reading of the Special Instructions to the bidders for the submission of bids online through the State Public Procurement Portal as also the FAQ on the aforesaid e-portal indicates that the client system referred to in Clause 13 of the Special Instructions was the contractor/bidders seeking submission of their bid online. It is inconceivable that the FAQs on the State Public Procurement Portal were designed to quell doubts and provide clarification to the procuring Department on whose behalf the e-bids were to be received. It is also important to note that each bidder was required to keep online enrollment on the State Public Procurement Portal and that is why the word client system in Clause 13 necessarily refers to the bidders and not to the procurement entitytechnical matter. It is thus evident that Java Heap Space Error as displayed on the petitioner display screen of the computer of the petitioner in the course of uploading was the result of the over size of the file sought to be uploaded being greater than the memory available with the bidder's system. It is also on record that uploading was taking place on the server on the respondents throughout the day on 23.02.2016 and it was up and running at all times. Mr. Ramdhan Mahawar, Assistant Settlement Officer, Land Settlement Office, Government of Rajasthan, Jaipur in his additional affidavit has submitted that on the respondent's server on 23.02.2016 1467 bid documents were loaded qua various tenders including the tender in question whose total size was 2814.43 MB. In the case of the instant tender itself eight bids were received without any complaint making it evident that there was no glitch of any kind whatsoever in the system of the respondents. Thus the non-submission of the online bid by the petitioner on the last date i.e. 6 PM on 23.02.2016 cannot in any manner whatsoever be attributable to the respondents.
A client is thus the requesting programme or user in a clientserver relationship. The client and the server are at the two ends. They can never be one. The Barron's Business Guide 'Dictionary of Computer and Internet Terms', 10th Edition defines a client as a operating system that enables a computer to access a particular kind of services and server as a computer that provides services to another computer (called 'client'). For example a browser effectively makes client requisite for pages from the servers allover the web. In the course of the e-bid, the server being the State Public Procurement Portal being used by the petitioner to upload the bid, the petitioner was thus the client. Further, the client system referred in Clause 13 of the Special Instructions was the system of the bidder i.e. the petitioner.
The upshot of the aforesaid discussion and conclusion is that the petitioner is not entitled to any relief as prayed for, nor can it be directed that the respondents consider the petitioner's bid which was not submitted before the bid close time. Such a direction would be contrary to Rule 52 of the Rules of 2013.
I therefore find no force in the petition.
Dismissed. Stay application also dismissed.
(ALOK SHARMA), J MS/-