Gauhati High Court
Ravi Brothers vs The Guwahati Municipal Corporation And ... on 28 May, 2019
Equivalent citations: AIR 2019 GAUHATI 117, AIRONLINE 2019 GAU 256
Author: Ajit Borthakur
Bench: Ajit Borthakur
Page No.# 1/12
GAHC010076062019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA 127/2019
1:RAVI BROTHERS
A REGISTERED PARTNERSHIP FIRM BEING REP. BY ITS PARTNER, SHRI
RAHUL GUPTA, AGED ABOUT 59 YEARS, SHIVA COMMERCIAL COMPLEX,
RUPNAGAR PATH, G.S. ROAD, GUWAHATI- 781007.
VERSUS
1:THE GUWAHATI MUNICIPAL CORPORATION AND 5 ORS
REP. BY THE COMMISSIONER, PANBAZAR, GUWAHATI- 781001, ASSAM.
2:THE COMMISSIONER
GUWAHATI MUNICIPAL CORPORATION
PANBAZAR, GUWAHATI- 781001, ASSAM.
3:CHIEF ENGINEER
GUWAHATI MUNICIPAL CORPORATION
PANBAZAR, GUWAHATI- 781001.
4:THE TENDER EVALUATION COMMITTEE
BEING REP. BY ITS CHAIRMAN
I.E. THE ADDITIONAL COMMISSIONER
GUWAHATI MUNICIPAL CORPORATION
GUWAHATI- 781001.
5:INDUSTRIAL SYSTEMS LLP
KAY M PLAZA
3RD FLOOR, G.S. ROAD
GANESHGURI, NEAR KAR BHAWAN
GUWAHATI- 781006.
6:FLOWTECH SOLUTIONS LLP
HAVING A REGISTERED OFFICE AT- 181/0/49
HORMAZ VILLA
Page No.# 2/12
FAIRY TOWER, SHOP NO. 1B, MADHYAMGRAM
NORTH 24 PARAGANAS, KOLKATA- 70012
Advocate for the Petitioner : MR D DAS
Advocate for the Respondent : MR. D. SAIKIA, MR. D. BARUAH
BEFORE
HON'BLE THE CHIEF JUSTICE (ACTING)
HON'BLE MR. JUSTICE AJIT BORTHAKUR
JUDGEMENT AND ORDER
(ORAL)
Date : 28-05-2019 [A. K. Goswami, C.J.( Acting)] Heard Mr. D. Das, learned Senior counsel, appearing for the appellant. Also heard Mr. D. Saikia, learned Senior counsel, appearing for respondent Nos. 1 to 4 as well as Mr. D. Baruah, learned counsel appearing for respondent No. 5. The respondent No. 6 was notified, but had not contested the proceedings before the learned Single Judge.
2. This intra-court appeal is preferred against the judgement and order dated 06.03.2019, passed by the learned Single Judge in WP(C) 4479/2018 dismissing the writ petition filed by the appellant.
3. A perusal of the prayers made in the writ petition goes to show that the writ petition was filed praying for a writ of certiorari to set aside/quash the Minutes of the Tender Summary Report dated 09.07.2018 and any other consequential orders passed thereto along with a prayer not to award any contract either to respondent No. 5 or respondent No. 6 till opening of the price bid of the writ petitioner and, only thereafter, to take a final decision in the matter.
4. It is to be noted at the very outset that Letter of Acceptance was issued on 11.07.2018 and, thereafter, on 12.07.2018, notice to proceed with the work was also issued.
5. The appellant, respondent No. 5 and respondent No. 6 responded to a Invitation For Bid (for short "IFB") dated 19.06.2018. The IFB was issued in respect of nine projects. In the Page No.# 3/12 present proceedings, the subject-matter of dispute pertains to Group No. SD 17-18/A. The Technical/Evaluation Committee in the meeting held on 09.07.2018 in respect of Group No. SD 17-18/A pertaining to "Supply, installation, testing and commissioning of pump and motor under Satpukhuri Treatment Plant, Panbazar Treatment Plant and Kamakhya Water Supply Scheme" including "Supply, installation, testing and commissioning of different capacity electrical motor driven horizontal centrifugal pump with squirrel cage induction motor under boosting pumping station", while holding the petitioner/appellant to be technically disqualified, had found respondent No. 5 and 6 to be technically qualified. It is in view of the aforesaid decision of the Technical/Evaluation Committee in its meeting held on 09.07.2018, the writ petition was filed with the prayers as have already been noted hereinabove.
6. On the basis of the contentions advanced, the learned Single Judge had formulated three points for determination, which are as follows:
"(a) Whether the GMC authorities were obliged to seek clarification from the petitioner to collect further information in respect of the bid/tender submitted by the petitioner ?
(b) Whether the hard copies of documents submitted physically by the petitioner were liable to be evaluated by respondent Nos. 1 to 4 ?
(c) Whether the rejection of the bid of the petitioner by holding the petitioner to be technically disqualified is liable to be interfered with ?"
7. On consideration of the materials on record and after hearing the learned counsel appearing for the writ petitioner, respondent Nos. 1 to 4 as well as respondent No. 5, the learned Single Judge had answered Points (a) and (b) against the petitioner and, in view of the decision rendered in Points (a) and (b), the learned Single Judge was of the opinion that, necessarily and as a corollary, Point (c) had to be answered against the petitioner.
8. At this juncture, to understand and appreciate the contentions that have been advanced, it will be appropriate to indicate the reasons for which the Technical/Evaluation Committee, in the meeting held on 09.07.2018, had considered the technical bid of the appellant to be deficient. It was recorded as follows:
"M/s Ravi Brothers found technically disqualified as they have not quoted brand of the Page No.# 4/12 motor, MOC (Material of Construction), performance curve and declaration of internal quoting of the pump from manufacture unit, not fulfilled technical data sheet."
9. It must also be noted at this point that during the pendency of the appeal, the appellant filed an Interlocutory Application praying for leave to produce certain documents for appropriate adjudication of the appeal. The said application was registered as I.A. (Civil) 1544/2019 and, this court, by an order dated 09.05.2019, had disposed of the said Interlocutory Application indicating that the appellant be permitted to bring on records the documents produced along with the application as a part of the appeal papers subject to its relevance and the objections to be raised by the respondents.
10. Mr. D. Das, learned Senior counsel for the appellant has submitted that for non- mentioning of the make of the motor, the respondent authorities could not have rejected the tender of the appellant on the ground that the same does not meet the tender conditions. He has, however, not disputed the other grounds mentioned in the minutes of the meeting dated 09.07.2018 but contends that all the required documents could not be uploaded, not because of the fault of the appellant, but because the file size of the documents was limited to 25 MB, which was the permissible limit according to the IFB and, therefore, the appellant had submitted, as required under the IFB, documents in hard copies and, in such circumstances, it was obligatory on the part of the respondents to have considered the same and, in any event, when the appellant had submitted hard copies of the documents required to be submitted, an obligation was cast on the respondents to have invited the appellant for a clarification and having failed to do so, the entire decision making process is vitiated. In the context of the rejection of the bid of the appellant on the ground of non-mentioning of make of pump, he has submitted that the application for bringing on record certain additional documents at the appeal stage was filed to demonstrate that the tender documents submitted by respondent No. 5 disclose that it had not quoted pump name of one single make but it gave the names of two makes, namely, Marathon/CGL and, therefore, applying the principles of fairness and equity, the bid of the respondent No. 5 should also have been rejected. It is submitted that the petitioner came to discover the same at a belated stage and, therefore, the same were not part of the writ proceeding. Mr. Das has submitted that it transpires that the amount quoted by the appellant is less by about Rs. 88 lakhs than the bid Page No.# 5/12 of the respondent No. 5 and, therefore, when the bid of the appellant was rejected on frivolous grounds, having regard to the public interest involved, it is a fit case where the respondents are liable to be directed to consider the bid of the appellant. In support of his contentions, Mr. Das has placed reliance on the decision of the Supreme Court in the case of Central Coalfields Limited vs. SLL-SML (Joint Venture Consortium) and Others, reported in (2016) 8 SCC 622.
11. Mr. D. Saikia, learned Senior counsel appearing for respondent Nos. 1 to 4 has submitted that bid of the tenderers were to be uploaded online and, therefore, the respondent authorities had considered the online bids submitted by the respective tenderers and as the appellant did not upload bid documents, which were noted by the tender committee and which is the admitted position, the respondent authorities were justified in rejecting the tender of appellant. He has submitted that the respective bids of the tenderers were put in public domain by uploading the same and, therefore, plea taken by the appellant that it was not aware of the alleged infirmity of the tender of the respondent No. 5 in respect of mentioning of two makes of motor cannot be accepted and, to that extent, the plea having not been taken in the writ proceeding, may not be entertained at the appellate stage. However, it is his submission that even otherwise the case of respondent No. 5 stands on a different footing than that of the appellant inasmuch as, while the respondent No. 5 had quoted two brand names for the motors, the appellant did not indicate any name in respect of motors, thereby introducing a grave element of uncertainty. It is further elaborated by him that non-mentioning of the name of the brand of motor has got serious consequences inasmuch as one is totally uncertain about what is meant by the appellant to be "reputed brand" and it would be difficult on the part of the respondent authorities to negate the claim of the appellant at a subsequent point of time if, on being held as the successful bidder, it offers a brand which is not at all acceptable to the respondents. That apart, Clause 10 of the Special Instructions to Bidders (SIB) does not restrict the bidders to indicate only one brand of motor. All that is required under the said Clause, according to Mr. Saikia, is that when the tenderers submit their bids, they have to indicate motors and pumps of the same make in respect of the projects of the group and the respondent No. 5 had fulfilled this criterion. It is submitted that the plea taken by the appellant that the full size of the tender documents Page No.# 6/12 exceeded 25 MB as a result of which it was not in a position to upload complete documents is false and this aspect of the matter was duly considered by the learned Single Judge and a finding was recorded that only 12 MBs had been utilized by the appellant in uploading its tender documents. He has also submitted that the appellant, respondent Nos. 5 and 6 had submitted bids online more or less at the same time and, therefore, when the bids of the other tenderers had been successfully uploaded, the plea taken by the appellant that there were some defects in the system cannot be entertained. Mr. Saikia further contends that after the technical bid of the appellant was rejected, it was not possible for the respondent Nos. 1 to 4 to know as to what was the bid offered by the appellant as the price bid got locked and it is not possible to be accessed unless the service provider is taken on board. It is submitted by him that the rate at which the contract has been awarded is below the estimated cost projected by the respondent Nos. 1 to 4. It is contended by him that as the appellant had not submitted the required documents online, therefore, even if an opportunity to clarify regarding the brand name of the motor had been granted to the appellant, the same would have not advanced the case of the appellant as, on other counts, the tender of the respondent No. 5 was technically unresponsive. He has indicated to the court that subsequently the brand "CGL", as offered by the respondent No. 5, has been accepted by the respondent authorities. Though there was no interim order operating at any stage of the writ proceedings and though the work was to be completed within a period of 90 days, the respondent authorities thought that since the matter was sub-judice, it would be appropriate to wait for the outcome of the case. It is only after disposal of the writ petition, approval of drawings, etc., had been given and, by a letter dated 18.04.2019 it is indicated that work should be completed by 31.07.2019. He has also relied on in the case of Central Coalfields Limited (supra).
12. Mr. D. Baruah, learned counsel appearing for the respondent No. 5 has submitted that respondent authorities did not deviate from terms of the IFB and SIB and when the admitted position is that the appellant had not uploaded documents online for which, in any view of the matter, the tender of the appellant is liable to be rejected, the appellant has no locus standi to contend that the tender of the respondent No. 5 also ought to have been rejected on the ground of it having mentioned two names in respect of the motors. While endorsing Page No.# 7/12 the submission of Mr. Saikia, he submits that the appellant, instead of giving any name, had merely mentioned the brand of the motor to be of a "reputed brand". It is submitted by him that it cannot be contended by the appellant that it was not aware of the requirement of giving brand name inasmuch as for the pump it had specifically mentioned the brand name as "Kirloskar." Respondent No. 5 had written a letter dated 29.06.2018 to the GMC indicating "CGL/Marathon" motors to be a bought out item. It is submitted by him that pumps and motors are to be specially manufactured which takes considerable period of time and, therefore, notwithstanding pendency of the litigation, respondent No. 5 had taken steps to have all the pumps and motors manufactured. It had also taken prompt steps for getting the drawings approved by the authorities so that they can proceed with the work and, in this connection, he has drawn the attention of the court to a letter dated 31.07.2018. However, required approval was granted only on 18.04.2019 by the Chief Engineer, Guwahati Municipal Corporation. Steps have been taken to transport the pumps which are expected to reach the sites within a period 10 days and the entire work will be completed much before 31.07.2019, he submits. Mr. Baruah has further submitted that even the hard copy submitted by the appellant is not conforming to the requirement as the Column "Vendor's confirmation" has been left blank in the Technical Data Sheet. In this connection, he has also drawn the attention of the court how the respondent No. 5 had filled up the said column. In support of his submissions, Mr. Baruah has cited the decision of the Hon'ble Supreme Court in the case of Afcons Infrastructure Limited Vs. Nagpur Metro Rail Corporation Limited and Another, reported in (2016) 16 SCC 818.
13. We have considered the submissions of the learned counsel for the parties and have perused the materials on record.
14. There are "Notes" in the IFB dated 19.06.2018. Note 2 indicates that online submission of bids is mandatory and that manual submission of bids will not be accepted. Note 5 requires that a hard copy of the bid submitted online is to be submitted on or before 18.07.2018 making it clear that in case of any discrepancy between the online bid and the hard copy of the bid, the online bid will govern and the same will only be considered for evaluation. Note 6 advises the bidders to scan their technical bid papers at 100 dpl (in black and white mode) in "pdf" format and, in case the number of pages exceeded 25 MB, the Page No.# 8/12 bidders should create multiple files and upload the same in "Upload Additional Document"
stage.
15. Clause 2.0 of the SIB provides for submission of the bid online in two-bid system, i.e., "Un-price bid" and "Price bid". Un-price bid should contain all technical and commercial details other than the price essentially containing the Technical Catalogue, Drawing, Test Certificates, Data Sheets, declaration on Technical/Commercial deviation duly filled in, etc. Clause "B" of Annexure "C" of SIB, amongst others, provides for rejection on technical grounds. The same reads as follows:
"B. Rejection Criteria:
B.1. Technical Rejection Criteria:
The following vital technical conditions should be strictly complied with, failing which the bid will be rejected.
B.1.1. Bid should be complete in all aspects covering entire scope of supply and should conform to the technical specifications indicated in the bid documents both for Horizontal Split Casing Pump, End suction Pump and Multi Stage Pump duly supported with technical catalogues/literatures, Performance curves wherever applicable. Bidder must confirm/fill-up Technical Data Sheet available in the tender against departmental requirements against each pump-set. Incomplete and non-conforming bids will be rejected outright.
(a) The detail Bills of Materials (BOM) need to be submitted for Panel Board.
(b) Offered Pump input power at rated capacity & head should be equal or less than the input power mentioned in the data sheet for each of the pump sets without any internal coating in the pump & pump parts. Bidder must submit a declaration form the pump manufacturer on their letter head duly signed & stamped by the person having company's power of attorney certifying the compliance to the same.
(c) Performance curve each of the pump set (without internal coating in the pump and pump parts) should be submitted along with Data Sheet."
Clause 5.0 provides the grounds on which a tender is liable for rejection. Clause 5(e) of the SIB indicates that a tender is liable to be rejected if the tender is not filled up and duly signed and the required annexure, specifications, etc. are not submitted. Clause 8.0 indicates Page No.# 9/12 that bids will be accepted only through e-tendering portal. It was also made clear that the grounds mentioned in Clause 5.0 are only indicative and not comprehensive.
16. Under the "Bid Evaluation Criteria", at Clause "A" of Annexure "C" of SIB, it is provided that during evaluation of bids, GMC may ask the bidders for declarations/ confirmations/deficient documents of its bids and that such request for clarification should be in writing.
17. Clause 10 of the SIB reads as follows:
"10.0 Submission of bid with multiple make by a bidder:
Bidder should offer pumps and motors from its respective one single manufacturer's product only for all the required pump sets from the list of approved makes. For example, if bidder is offering say 'A' make pumps and 'X' make motor which are appearing from the approved makes, he should offer the same 'A' make pumps and 'X' make motors for all the required pump sets. In case of bidder submitting bid with multiple makes of pumps of motors for different tags, the same shall be out rightly rejected."
18. Though Clause 10 had required the bidders to offer pumps and motors from its respective one single manufacturer from the list of approved makes, there is no dispute at the Bar that such list of approved make was not available for the tenderers to select from such list. But none of the parties had raised any issue with regard to the absence of an approved list. It is not the case of the appellant that because of absence of an approved list it had only indicated that it is going to supply pumps and motors of a reputed brand. Such a stand could, perhaps, been entertained had the appellant not submitted any name of the make in respect of the pumps. The appellant understood Clause 10 to the effect that it is entitled to give a make of its own choice for the purpose of consideration and, accordingly, it had furnished the make in respect of the pumps. However, it did not indicate the make of the motor. Even if it is held that requirement of furnishing name is only an ancillary condition, the appellant would have to overcome other deficiencies. In Afcons Infrastructure Limited (supra), the Supreme Court had observed that the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirement and interpret the documents. It is the stand of the respondent Nos. 1 to 4 that they had opted for Page No.# 10/12 CGL make of the motor out of the two alternatives given by the respondent No. 5. In absence of any categorical prohibition, the respondent Nos. 1 to 4 did not consider it to be a violation of Clause 10 and that is how they interpreted Clause 10. There is no allegation of mala fide or favouritism in awarding the contract. In the circumstances of the case, we are of the opinion that no illegality was committed by the respondent Nos. 1 to 4 in accepting the tender of the respondent No. 5.
19. While dealing with the contention of the appellant as to why it could not submit its bid online in its entirety, the learned Single Judge has recorded that the appellant had uploaded its online bid at 12-46 PM on 03.07.2018 with total size of bid documents of 18.468 MB in 'pdf' format with the file size of technical documents being 12.764 MB. Respondent No. 6 had uploaded their online documents at 12.58 PM on 03.07.2018 with total size of bid documents of 41.020 MB with file size of the technical documents being 33.671 MB. Respondent No. 5 had uploaded its documents at 12.42 PM on 03.07.2018 with total size of bid documents of 24.585 MB with file size of technical documents being 16.238 MB. These findings of the learned Single Judge have not been assailed in this appeal. Even if file size had exceeded 25 MB, there is provision to accommodate additional file size. A perusal of the Technical Data Sheet at page 214 of the Appeal papers would go to show that the appellant had written the following sentence: "kindly refer to the Data Sheet enclosed with our un-priced Technical Bid". Giving the widest berth, if there really was some problem in uploading, it would have been only logical to indicate the problem of uploading at the very first instance, which is conspicuous by its absence.
20. Learned Single Judge, while dealing with Point (a), had opined that defect of non- disclosure of make of motor and consideration of documents, which are not submitted online, could not have been allowed to be incorporated by way of clarification as such procedure was not envisaged under the IFB and SIB.
21. When the tender conditions unequivocally demonstrate that only online bid is to be considered, in our considered opinion, the reasons assigned by the learned Single Judge that hard copies of the documents submitted by the appellant could not have been evaluated by the tendering authority cannot be faulted with. The reliance placed by Mr. Das in the case of Central Coalfields Limited (supra) does not help the case of the appellant. It was held in Page No.# 11/12 Central Coalfields Limited (supra) that acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. It was held that the terms of the tender notice cannot be ignored as being redundant or superfluous and they must be given a meaning and the necessary significance. In the aforesaid case, the question that had fallen for consideration was as to whether the Bank Guarantee submitted by the tenderer, not in the form prescribed by the tendering authority, but in its own form, could be considered as a valid document. It was in this context the Supreme Court had held that when a particular form had been provided, there cannot be any justification for a tenderer to submit a Bank Guarantee devised in its own form. In the instant case, when the bid was not submitted online by the appellant in its entirety, as required under the IFB and SIB, the authority must be held to have rightly rejected the appellant's bid. On the other hand, respondent No. 5, as noticed earlier, had submitted its bid online and the learned Senior counsel for the appellant had only sought to emphasize that because of the respondent No. 5 having indicated two names in respect of the motor, the bid of respondent N. 5 was also liable to be rejected. Apart from the above, no other deficiency in the bid of respondent No. 5 is pointed out by the learned Senior counsel for the appellant.
22. The question of clarification will arise only when the authorities require some clarification or confirmation with regard to some documents or, when though documents are furnished, they require some additional information or additional documents. Clarifications cannot be construed to permit the respondent authorities to allow a particular tenderer to bring in documents which, in the first place, ought to have been made part of the tender documents. When the mode of submission of bid was mandatorily on online mode, the insistence on the part of the appellant that because it had submitted hard copies of the tender documents, the same should have been considered, in our considered opinion, cannot be accepted as it was necessary and obligatory on the part of the appellant to have submitted its bid in the manner prescribed by the tendering authority.
23. On a perusal of the materials on record, we are of the considered opinion that the decision making process relating to the award of contract was bona fide and in public interest and the same is not vitiated.
Page No.# 12/12
24. In view of the above discussion, we are of the opinion that no interference is called for with the conclusion arrived at by the learned Single Judge and, accordingly, the appeal is dismissed at the admission stage without notice to respondent No. 6.
JUDGE CHIEF JUSTICE (ACTING) Comparing Assistant