Rajasthan High Court - Jaipur
Rosmerta Technologies Ltd vs State Of Rajasthan, Through Its Chief ... on 30 November, 2018
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 15176/2018
Rosmerta Technologies Ltd., 137, Udyog Vihar, Phase-I,
Gurgaon- 122016 Haryana Through Its Authorized
Representative Ashish Kumar Tiwari S/o Shri Lakhpati Prasad
Tiwari, Aged 27 Years, R/o Plot No. 40 A, Charch Road, Mahatma
Gandhi Nagar, Dcm, Ajmer Road, Jaipur.
----Petitioner
Versus
1. State Of Rajasthan, Through Its Chief Secretary,
Secretariat, Jaipur-302005
2. The Transport Secretary-Cum-Commissioner, Government
Of Rajasthan, Parivahan Bhawan, Sahkar Marg, Jaipur -
302005
3. M/s M-Tech Innovations Ltd., Having Its Registered Office
At, Plot No. P-1/2 Rajiv Gandhi Infotech Park, Phase-I,
Hinjewadi, Pune, Mh - 411057
----Respondents
For Petitioner(s) : Mr. Mukesh Pal Jadoun, Adv. Mr. Suren Uppal, Adv. Mr. Sanjeev Menon, Adv.
For Respondent(s) : Mr. J.M. Saxena, Addl. Advocate General, Mr. Sandeep Pathak, for respondent No. 3, Ms. Vartika Mehra, Adv. Ms. Jaya P. Pathak, Adv.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
Judgment Reserved On : 24th October, 2018
Date of Judgment : 30th November, 2018
REPORTABLE
By the Court-
1. The present writ petition has been filed by the petitioner- company challenging acceptance of technical bid of private respondent-M-Tech Innovations Ltd. for awarding the contract by (2 of 38) [CW-15176/2018] Transport Department of Government of Rajasthan for issuance of Smart Card Based Vehicle Registration Certificate and driving licence.
2. The petitioner-company has made following prayers in the writ petition:-
"(i) quash and set aside the Section VII, particularly Clause 7.1.5 of the RFP to the extend where it provides that the right of first appeal is before the Learned Joint Secretary, Transport Department and the right of second appeal is before the Learned Principal Secretary, Transport Department.
(ii) Set aside the decision dated 29.05.2018 of Respondent No. 2 whereby bid of Respondent No. 3 has been accepted in the Technical Rounds by either overlooking material defects suffered by it or by permitting rectification thereof;
(iii) Direct Respondent No. 2 to re-evaluate technical bids on the basis of bids as they had existed on the last date for submission of bids and by strictly applying material requirement and pre-qualification criteria under the RFP dated 18.10.2017;
(iv) Pass such other Orders or Directions as it may deem fit."
3. This Court on 25.07.2018 after hearing counsel for both the parties came to the conclusion that the appeal provided under the Rajasthan Transparency in Public Procurement Act, 2012 before the Joint Secretary, who is an Officer of subordinate to the Procuring Authority and as such the remedy as available under Clause 7.1.5 of the Request for Proposal (hereinafter referred as "RFP"), was not an efficacious remedy to the petitioner. The Court observed that the issues raised in the writ petition will be (3 of 38) [CW-15176/2018] examined by this Court and as such the prayer (i) of the writ petition need not to be examined in the present petition.
4. This Court had further passed an interim order on 25.07.2018 that no work order was to be issued by the State Government in favour of the respondent No. 3 pursuant to Letter of Intent (LOI).
5. The brief facts of the case are that on 18.10.2017, the Transport Department, Government of Rajasthan issued a Request for Proposal (hereinafter referred as "RFP") for selection of bidder for issuance of smart card based vehicle registration certificate and driving licence in the State of Rajasthan.
6. The RFP laid down several technical criteria and provided that only the bids which qualified the technical/eligibility criteria, shall be eligible for evaluation of financial bids. The RFP provided for submission of quaries by the bidders upto 26.10.2017 and on 27.10.2017, a pre-bid meeting was held in the Office of Transport Commissioner, Government of Rajasthan. The Department subsequent, to pre-bid meeting issued letter/reply to pre-bid quaries and further a corrigendum dt.17.04.2018 issued by the Transport Department to make modifications in the bidding documents. The Department after issuing certain corrigendum postponing the date of submission of the tenders, the final date of tender submission was finalised to be 28.05.2018.
7. The petitioner has pleaded in the writ petition that the four companies M/s Rosmerta Technologies Ltd., M/s M-Tech Innovations Pvt. Ltd., M/s MCT Cards and Technology Pvt. Ltd., M/s Madras Security Printers Pvt. Ltd. and two other consortia comprising of (i) M/s Smartchip Pvt. Ltd. M/s ITI LIMITED (4 of 38) [CW-15176/2018] PALAKKAD and (ii) M/s Silver Touch Technologies Ltd. and M/s E- Smart System Pvt. Ltd. submitted their bids on 28.05.2018.
8. The petitioner has pleaded in the petition that the Bid Evaluation Committee sought clarifications from the bidders under the provisions of Clause 4.4, 4.5 and 4.6 of the RFP and last date of submission by the bidders for clarification was 18.06.2018.
9. The petitioner has pleaded in the petition that on 18.06.2018 the following quaries were sought from the different bidders:-
Sr. Company Clarifications sought No.
1. M/s ITI Ltd. 1. M/s ITI Ltd. was requested to submit a letter from its bank to remove the condition laid down in its Bank Guarantee and provide an amended unconditional Bank Guarantee.
2. Legible copies of GST registration and experience certificate were sought for.
2. M/s 1. GST Registration certificate in the form Rosmerta GST REG- 06 was sought for as the Technologies provisional certificate in the form GST -
Ltd. REG 25 was submitted earlier.
3. M/s M-Tech 1. Fresh Experience Certificates in the Innovations format provided in the RFP were sought. Ltd. 2. Bankers' details which was not earlier provided by it under Appendix -VII were sought.
4. M/s Silver 1. A copy of memorandum of Association Touch of the lead member was sought.
Technologies 2. Bank details of consortium member as Ltd. per Appendix -VII of RFP.
3. CA certificate providing the minimum annual turnover in IT services or IT related activities or in the field of providing smart card enabled services.
4. Non-submission of GST Registration certificate in the State of Rajasthan.
5. Evidence that IDFC foundation which provided its experience certificate is a PSU.
(5 of 38) [CW-15176/2018]
10. The petitioner has pleaded in the petition that by impugned report dt.29.05.2018, the Tender Evaluation Committee declared five out of six bidders as technically qualified and the five bidders found technically qualified are as under:-
(i) M/s MCT cards and Technology Pvt. Ltd.,
(ii) M/s M-Tech Innovations Ltd. (Respondent No. 3),
(iii) M/s Madras Security Printers Pvt. Ltd.,
(iv) M/s Rosmerta Technologies Ltd. (Petitioner),
(v) Consortium comprising of M/s ITI Palakkad Ltd. and M/s Smart Chit Pvt. Ltd.
11. M/s Silver Touch Technologies Ltd. was held to be technically unsound and as such the technical bid submitted by the consortium comprising of M/s Silver Touch Technologies Ltd. and M/s E-Smart System Pvt. Ltd. did not qualify for the financial bid. Copy of report of the Tender Evaluation Committee has been annexed as Annexure-7 with the writ petition.
12. The petitioner has pleaded in the petition that the manner of the evaluation of the technical bid and its subsequent acts, by the official respondents indicate malafide intentions and undue favour towards private respondent No. 3 to clear the technical evaluation round, despite there being serious/material defects in the bid.
13. The petitioner has pleaded in para 12 of the petition that the material defects in the bid submitted by the respondent No. 3 were as under:-
Sr. Material Defects Provision in the RFP No. (6 of 38) [CW-15176/2018]
1. Non submission of Annexure IV of RFP & Sr. No. 3 board resolution of the table provided at Clause 3.7.
2. Non-submission of Sr. No. 3 of the table provided signed copy of at Clause 3.7.
corrigenda
3. Non-submission of E- Clause 3.21 and Sr. No. 2.2 in tendering proceeding the table provided at Clause fee of Rs. 1,000/- in 3.7 of the RFP favour of "Managing Director, RISL
4. Submission of invalid Sr. No. 8 in the Table provided Experience certificate at Clause 3.7
5. Submission of invalid Nr. No. 9 in the table provided satisfactorily at Clause 3.7 working/completion certificate
6. Submission of invalid 3.10 of the RFP Appendix VII (Financial Capacity of the Bidder)
7. Submission of Sr. No. 5 of the table provided incomplete balance at Clause 3.7 sheet of 2016-17
8. Invalid submission of Clause 3.9 and Appendix III of power of attorney the RFP.
9. Non-submission of Sr. No. 20 of the table Self-certificate for not provided at Clause 3.7 being black listed
14. The petitioner has pleaded in the petition that the petitioner and other bidders approached respondent No. 2 raising the issue of material defects in the e-processing fee submitted by the respondent No. 3 and further vide letters dt.28.06.2018 and 03.07.2018, raised the issue rendering respondent No. 3's bid non-responsive and declaring respondent No. 3 as technically not qualified.
15. The petitioner has pleaded in the petition that the respondent/tendering authority, failed to consider the issues in the right perspective and as such feeling aggrieved by decision of the (7 of 38) [CW-15176/2018] Tender Evaluation Committee, the petitioner had filed an appeal before the Learned Joint Secretary, Transport Department on 05.07.2018 and also approached this Court by filing SBCWP No.3599/2018 [Rosmerta Technologies Ltd. & Anr. Vs. State of Rajasthan & Ors.]. The petitioner has pleaded in the petition that this Court vide order dt.16.02.2018, disposed of the writ petition by making observation that the appeal was to be heard by the authority in time bound manner and that financial bid was not to be finalised until the appeal was disposed off. The petitioner has pleaded in the petition that this Court had also found a prima facie case in their favour, yet the Appellate Authority dismissed the appeal, and also imposed costs on the petitioner of Rs.2,00,000/- vide order dt.10.05.2018.
16. The petitioner has pleaded in the petition that the procuring entity allowed the respondent No. 3 to participate in the financial bid and subsequently had choosen it as the lowest bidder on 05.07.2018.
17. The petitioner-company feeling aggrieved against the decision of the Tendering Authority to consider the private respondent as technically qualified, thus has approached this Court by raising grievance.
18. This Court finds that though the several grounds have been taken in the writ petition to question the eligibility of the respondent No. 3 treating it to be wrongly as technically qualified, however learned counsel for the petitioner, during course of arguments has confined his challenge on violation of three criteria and which are as under:-
(8 of 38) [CW-15176/2018]
(i) The respondent No. 3 did not have experience, as
per Sr. No. 8 in the table provided at Clause 3.7 and did not submit the valid working/completion certificate as per Sr. No. 9 in the table provided at Clause 3.7.
(ii) Non-submission of E-tendering processing fee of Rs.
1,000/- in favour of Managing Director, RISL as per Clause 3.21 and Sr. No. 2.2 in the table provided at Clause 3.7 of the RFP.
(iii) Non-submission of Board resolution as per Annexure III of RFP and Sr. No. 15 of the table provided at Clause 3.7.15 of the RPF.
19. The learned counsel has raised no other ground during course of hearing.
20. The respondents No. 1 & 2 have filed reply to the writ petition. In the preliminary objections raised by the respondents challenge the very locus of the petitioner to file writ petition as the petitioner-company itself did not annexe the certificate duly signed by the representative/authorized signatory of the petitioner- company and certificate by CA of the petitioner-company one Sh. Sumit Jain certifying the turnover and networth of the petitioner- company was filed. The Technical Evaluation Committee had not rejected the technical bid of the petitioner inspite of fact that the documents submitted by the petitioner of financial turnover were not verified by the authorized person and as such the petitioner being the beneficiary of the technical evaluation, cannot challenge decision of the Technical Evaluation Committee.
21. The respondents have submitted that in response to the RFP/notice inviting bid, six companies had participated and the Bid Evaluation Committee opened the technical bid on 29.05.2018 in the presence of representative of the bidders. It is asserted that (9 of 38) [CW-15176/2018] on the opening day of bids, the six bidders submitted tender processing fee in the form of Demand Draft (DD). The respondent No. 3-M/s M-Tech Innovations Pvt. Ltd. submitted tender processing fee of Rs.1,000/- in the name of Transport Commissioner instead of Managing Director, RISL and Madras Security Printers Pvt. Ltd. also submitted combined Draft of Rs.26,000/- (25,000/- tender fees + Rs.1,000/- processing fee) in the name of Transport Commissioner.
22. The above matter was discussed by the Bid Evaluation Committee on the same date i.e. 29.05.2018 and a conclusion was drawn that even if the tender processing fee of Rs.1,000/- in the form of DD was given in the name of the Transport Commissioner, the same could not be treated to be a material defect which vitiated the bid process. It is asserted that the Committee decided for such a minor mistake, the two companies could not be ousted from the competition, as the mistake committed was not intentional or which could have prejudiced the right of other bidders to compete in the bid process, as it was not a material defect.
23. The respondents have also referred and quoted Clause 4.6 of RFP "the Bid Evaluation Committee may waive any non- conformities in the bid that do not constitute any material deviation, omission or reservation and the bid shall deemed to be substantially responsive".
24. The respondents have submitted that during evaluation, it was found that certain information was required to be submitted by the bidders though was earlier submitted but certain clarifications/information was required, regarding documents, the (10 of 38) [CW-15176/2018] Bid Evaluation Committee in pursuance of Clause 4.3 and 4.6 of RFP after conducting the preliminary technical evaluation of the bids recommended that the information/clarifications may be sought from the bidders and it was decided by the Committee that the bidders may be asked to submit required clarification/information by 18.06.2018 and in this regard, letter were written by them to following firms/bidders on 13.06.2018 i.e.
1. M/s Rosmerta Technologies Ltd. (Petitioner);
2. M/s ITI Ltd.
3. M/s Silvertouch Technologies Ltd. and
4. M/s M-Tech Innovations Pvt. Ltd. (Respondent No. 3)
25. The respondents have submitted that the information/clarification was submitted by the bidders and in the light of point wise clarification/information submitted by the various bidders, the Committee further evaluated the bids and point wise recommendations were made in tabular format and finally the Committee recommended 5 of the 6 bidders technically responsive as per the requirement of the eligibility criteria laid down under Clause 3.7 of the RFP.
26. The respondents have further submitted that after evaluation of bids, the respective bidders on the basis of their offer submitted, were marked as L1, L2, L3, L4 and L5. The said table is reproduced hereunder:-
Sr. Name of the Bidder Rate/user fee Order of No. quoted (Rs. bids Per card) (Min to Max)
1. M/s M-Tech Innovations Pvt. 51.28 L1 Ltd.
2. M/s Rosmerta Technologies 54.45 L2 Ltd.
(11 of 38) [CW-15176/2018]
3. M/s Madras Security Printers 88.00 L3
Ltd.
4. M/s ITI Ltd. 99.00 L4
5. M/s Manipal Cards and 108.00 L5
Technologies Ltd.
27. The respondents have submitted that after evaluation of M/s M-Tech Innovations Pvt. Ltd.-respondent No. 3 was declared L1 and a successful bidder. The Committee uploaded the recommendation of successful bidder on e-procurement portal on 19.07.2018 and LOI was issued by the Department and uploaded on 20.07.2018.
28. The respondents have submitted that all the bids were evaluated by the Member of the Committee as per technical eligibility criteria as per Clause 3.7 of RFP and certain information and clarification was required from the 4 bidders and details of which has been given in the reply. The petitioner itself was asked to submit copy of GST registration in the form of GST REG-25, as the GST registration submitted by the petitioner, along with tender document, was only provisional and not according to requirement of tender document.
29. The respondents asked the private respondent, the details and particulars with regard to (i) the experience certificate submitted by the bidder, issued by NICSI, for supply of 200 lac SCOSTA bases smart cards in last five financial years till December, 2017. As per RFP, this certificate was required for last three financial years. (ii) the experience certificate submitted by the bidder for the supply SCOSTA based cards, issued by the NICSI was for more than Rs. 90 crore during last five financial years till December, 2017. As per RFP, the requirement was for (12 of 38) [CW-15176/2018] execution of at least one project worth Rs. 15 crore or three projects worth Rs. 5 crore each within last five financial years as on the bid submission date. (iii) Banker's details have not been provided in Appendix-VII of RFP by the bidder.
30. The respondents have referred to Clause 4.3 of the RFP where the Bid Evaluation Committee may seek clarification of the bids, and further Clause 4.5 of the RFP where the Bid Evaluation Committee has to examine the technical aspects of the bid in particular to confirm that all requirements have been met without any material deviation, reservation, omission as provided under Clause 4.5.1 and under Clause 4.5.2 of RFP.
31. The respondents have submitted that clarifications sought from different bidders by the Bid Evaluation Committee, was only to the extent of providing opportunity to make clarifications, which could have been done so under the relevant provisions of RFP. The respondents have refuted the allegation of the petitioner that the respondents had given chance to make corrections in the bids submitted to overcome the deficiency. The respondents have submitted that there was total transparency in the process and it was a fair and competitive process, wherein every bidder was given chance to prove eligibility and entitlement of his company and equal opportunity was provided to every bidder.
32. The respondents have submitted that the allegation of the petitioner that there was a material defect of non-submission of the Board resolution, appendix III is said to be relevant with regard to power of attorney authorizing signatory for signing of bid. It is submitted that power of attorney was submitted by the (13 of 38) [CW-15176/2018] respondent No. 3 and there was no such provision where the Board resolution was required to in fact. It is alleged that petitioner-company has misread the appendix III and the note appended to it.
33. The respondents have further submitted that e-tendering processing fee in the name of Transport Commissioner was not a material deviation. The respondents have further submitted that the Bid Evaluation Committee had considered the eligibility certificate of the respondents No.3 as it submitted the experience certificate at the time submission of bid but the Bid Evaluation Committee found certain information/clarification while invoking Clause 4.3.7 and as such the respondent No. 3 was asked to provide information/clarification and same cannot be treated to be material deviation. The Bid Evaluation Committee found that the respondent No. 3 had submitted date wise NIC of the last three financial years and as such the respondent No. 3 was not technically disqualified on this ground.
34. The respondents have further submitted that the conduct of the petitioner does not deserve indulgence from this Court as the office of Additional Transport Commissioner, Mumbai Maharashtra, had served a notice upon the petitioner-company with regard to submitting of fake performance of bank guarantee for the project of Smart Card in the State of Maharashtra.
35. The respondent No. 3 has filed separate reply and has raised preliminary objection about maintainability of the writ petition as the petitioner has raised disputed question of facts. The respondent has raised objection that the petitioner himself being a beneficiary of the technical evaluation cannot file petition as the (14 of 38) [CW-15176/2018] petitioner-company had not filed certificate as required to be signed or verified by the representative/authorized signatory of the petitioner-company, yet Technical Evaluation Committee considered it technically qualified.
36. The respondent has submitted that the petitioner has tried to mislead to this Court by alleging certain defects in the bid submitting by respondent No. 3 and "Material Defects" do not actually exists. The respondent has submitted that it holds adequate experience as required under the conditions of RPB and certificate for experience was issued by an officer of the Bank of DGM (NICSI), who is second Officer in seniority in National Informatics Services Inc. (NICSI). The respondent has asserted that power of attorney as per the provisions of law has been submitted in the bid document in the prescribed format. The respondents submitted that the amount of processing fee to the tune of Rs.25,000/- and Rs.1,000/- was paid by different Demand Drafts and same was realized by the State Government. It is submitted that the Demand Draft of Rs.1,000/- was made in the name of the Transport Commissioner instead of RISL and this bonafide error was even committed by another bidder namely; M/s Madras Security Printers Pvt. Ltd and no fault was found by the department and equal treatment has been given to all bidders.
37. The respondent has further submitted that the financial capacity and turnover have been fulfilled by it as per the conditions of RPB. The respondent No. 3 has submitted that the clarifications were sought not only from the respondent No. 3 but from three other bidders including the petitioner and the (15 of 38) [CW-15176/2018] clarifications were submitted with regard to financial capacities, turnover and past experience by all such bidders.
38. The respondent has submitted parawise reply with respect to alleged material defects pointed out by the petitioner, in the petition and the same with regard to Sr. No. 2, 3, 4 & 5 (under challenge in writ petition) are as under:-
Sr. Material Relevant Explanation/submissi No. Defect Provision ons pointed out by in RPB, in the petitioner any
2. Non-submission Not A bare perusal of the RPF of Board applicable makes it evident that the Resolution board resolution was never a mandatorily required. Furthermore, a perusal of condition 3.7 (3) of the RBP, makes it evident that only MOA, AOA, Certificate of Incorporation were required and the same has been duly submitted.
3. Non-submission Section 1 of It is submitted that the of E-tender Fee RBP demand draft of of Rs.1,000/- in Rs.1,000/- was made in the name of the name of Transport "RISL" Commissioner instead of RISL. This bonafide error was even committed by another bidder namely;
Madras Security Printers Pvt. Ltd. and respondent No. 2 has considered that since the adequate amount was paid by the bidders to the Government, therefore, the compliance of condition with regard to payment of fee cannot be termed as incomplete.
4. Submission of Condition It is submitted that the (16 of 38) [CW-15176/2018] Invalid 3.7.8of answering respondent Experience RBP duly submitted a valid Certificate experience certificate issued by NICSI for 5 years along with bid.
However, respondent
No.2 in pursuance of the
said certificate sought
the clarification
regarding number of
smart card sold in the
past 3 years and the
same was submitted was
duly clarified by NICSI
vide its clarification order
dated 14.06.2018.
5. Submission of Condition It is submitted that the
invalid 3.7.9 of answering respondent
satisfactory RBP duly submitted a valid
working/comple satisfactory
tion certificate working/completion
certificate issued by
NICSI for 5 years along
with bid. However,
respondent No. 2 in
pursuance of the said
certificate sought the
clarification regarding
details of year
wise/project wise work
executed and the same
was submitted was duly
clarified by NICSI vide its
clarification order dated
14.06.2018.
39. The respondent has pleaded that the conduct of the petitioner-company does not make it entitled for any relief and the petition is to be treated as wholly frivolous, filed on wrong facts.
40. Learned counsel for the petitioner has urged following submissions before this Court:-
(17 of 38) [CW-15176/2018] (i) Whether the Tendering Authority is obliged to strictly
adhere to the standards and requirements laid down by it?
(ii) Whether the Tendering Authority is bound to reject a bid in case it suffers from one or more Material Defects?
(iii) What is the scope of rectification of defective bids under the Rajasthan Transparency in Public Procurement Act, 2012?
(iv) How are material defects identified?
(v) Whether the principle of limited judicial intervention into matters of Government Contracts and Government tender process would continue to apply after the passing of the Rajasthan Transparency in Public Procurement Act, 2012?
(vi) Whether the omissions and defects in Respondent No.3 are material in nature? Whether the said omissions and defects can/could have been rectified?
(vii) Whether the conduct of the Tendering Authority has been fair, transparent and unbiased?"
41. Learned counsel for the petitioner has placed reliance on the following cases [Ramana Dayaram Shetty Vs. International Airport Authority of India & Ors.] reported in AIR (1979) SC 1628, [Larsen and Toubro Ltd. & Anr. Vs. Union of India] reported in (2011) 5 SCC 430 [Poddar Steel Corporation Vs. Ganesh Engineering Works & Ors. reported in (1991) 3 SCC 273, [Ramky Infrastructures Ltd. Vs. Lakshmi Metal Industries and Constructions & Ors.] reported in 2005(1) ALD 49, [Indwell Construction Pvt. Ltd. Vs. Rail Vikas Nigam Ltd., passed by the Delhi High Court in WP (C) No. 7622/2017 decided on 10.10.2017, [P.L.R. Projects Pvt. Ltd. Vs. The Government of Andhra (18 of 38) [CW-15176/2018] Pradesh & Ors.] reported in 2012(4) ALD 474, [Finacus Solutions Pvt. Ltd., Mumbai Vs. State of Andhra Pradesh] passed by the Andhra Pradesh High Court in Writ Petition No. 22382/2018 decided on 01.10.2015, [Dale and Carrington Invt. (P) Ltd. & Ors. Vs. P.K. Prathapan & Ors.] reported in (2005) 1 SCC 212, [Shubh Shanti Services Ltd. Vs. Manjula S. Agarwalla & Ors.] reported in (2005) 5 SCC 30, [Agro Impex (I) Pvt. Ltd. Vs. State of Himachal Pradesh] passed by the Himachal Pradesh High Court in CWP No. 5662/2012-G decided on 10.12.2012, [Mohinder Singh Gill & Ors. Vs. The Chief Election Commissioner, New Delhi & Ors.] reported in (1978) 1 SCC 405.
42. This Court, before dealing with the rival contentions of the parties, deems it appropriate to quote the relevant Clauses of the Request for Proposal:-
SECTION I: INVITATION FOR BIDS (IFB) & INVITING BID (NIB): "Competitive bidding for selection of vendor for issuance of Smart Card Based Vehicle Registration Certificate & Driving Licence."
1 Name & Address of Name: Transport Commissioner, . the Procuring Government of Rajasthan Entity Address: Parivahan Bhawan, Sahakar Marg, Jaipur (Raj.)-302005 2 Bid Procedure Single-stage Bidding: two part . (envelop) open competitive e-Bid procurement https://eproc.rajasthan.gov.in 3 Fees Fees in the favour of "Transport . Commissioner" payable at Jaipur (Rajasthan) Bidding document fee: Rs.
25000 (Rupees twenty five
thousand only) in form of
Demand Draft/Banker's
(19 of 38) [CW-15176/2018]
Cheque.
RISL Processing Fee:
Rs.1000/-(Rupees One
thousand only) in form of
Demand Draft/Banker'
EMD: Rs. 300 lakhs (Three Hundred
Lakhs) in Demand Draft/Banker's
Cheque/BG.
4 Estimated Tender INR 150 Crore (One Hundred and
. Value Fifty Crore only).
[Note: 1. Bidder (authorised signatory) shall submit their offer on-line in Electronic formats both for technical and financial proposal. However, DD for Tender Fees, RISL Processing Fees and EMD should be submitted physically at the office of Procuring authority/entity on or before opening of technical bid and scanned copy of same should also be uploaded along with technical Bid/cover.]
2. In case, any of the bidders fails to physically submits the Banker's Cheque/Demand Draft for Tender Fee, EMD (also in BG), and RISL Processing Fee as per timelines mentioned in NIB, its Bid shall be rejected. The Banker's Cheque/Demand Draft for Bidding document fee, EMD should be drawn in favour of "Transport Commissioner, Government of Rajasthan" and the processing fees should be drawn in favour of "Managing Director" RISL payable at "Jaipur" from any Scheduled Commercial Bank.
Section III Introduction to bidders 3.2 Sale of Bidding/Tender Documents 3.2.1 The sale of bidding documents shall commence from the date of publication of Notice Inviting Bids (NIB) and shall be stopped one day prior to the date of opening of Bid. The complete bidding document shall also be placed on the State Public Procurement Portal and e-Procurement portal. The prospective bidders shall download the bidding document from the websites and will require to pay, a sum of Rs.25,000 (Rupees Twenty Five Thousand only) in the form of Pay Order or Demand Draft in favour of Transport Commissioner, Government of Rajasthan" payable at Jaipur as the cost of the Bidding Process and Bidding Documents and a sum of Rs.1,000 (Rupees One Thousand only) in the form of Pay Order or Demand draft in favour of Managing Director, RISL payable at Jaipur to the procuring entity/authority.
(20 of 38) [CW-15176/2018] 3.2.2 The bid shall summarily be rejected if it is not accompanied with the sum of money referred above in clause 3.2.1.
3.3. Pre-bid Meeting/Clarifications 3.3.1 Any prospective bidder may, in writing, seek clarifications from the procuring authority/entity in respect of the bidding documents. The clarification sought by the bidder should specifically refer the clause on which clarification is being sought by the bidder. The interested bidder should send the queries as per the following format:
Bidder's Request for Clarification Name of Organization Name of position of Address of submitting request person submitting Organization request: including phone, fax, email points of contract Sr. Bidding Content of RFP Points of NO. Document requiring Clarification (1) Reference clarification required (Clause/page) (3) (4) (2) 1 2 3 3.7 Technical/Eligibility Criteria A bidder participating in the bid shall possess the following minimum technical/eligibility criteria. Only those bids which qualify the Technical/Eligibility Criteria shall be eligible for evaluation of financial bids. The term "bidder" used herein would apply to both a single entity or consortium.
Sr. Document type Document Format
No. (2) (3)
(1)
5. The bidder/lead bidder or Audited balance sheet and
consortium partner must profit and loss account along
have minimum annual with all its schedules for the
turnover of Rs.30 Crore years and a Certificate from
(thirty crore) in any two its Statutory auditor
of the immediately wherever the same is
preceding three financial required as mentioned in
years in the IT related corresponding column
activities or IT services or number (2). The information in the field of providing regarding financial capacity (21 of 38) [CW-15176/2018] Smart Card enabled of the bidder is also to be services as per the provided in the format in audited accounts for the Appendix-VII of the RFP.
financial years (2014-15, 2016-16, 2016-17). The turnover in activities other than the above will not be taken for consideration for accounting for this turnover criterion.
In case the breakup of
turnover is not separately
reflected in the audited
financial statements
submitted with the bid
documents the
bidder/lead
bidder/consortium
partner shall submit a
certificate from statutory
auditor/CA of bidder/lead
bidder/consortium
partner specifying the
turnover in IT related
activities or IT services or
in the filed of providing
Smart Card enabled
services.
8. The bidder/lead or The certificate of experience
consortium partner must should be from the Client
have issued at least 50 Department should be signed
lacs SCOSTA cards or by an officer not inferior to
must have processed at the rank of Joint
least 75 lacs Smart Cards Commissioner or equivalent.
for IT based Citizen
Services
(Delivery/Facilitation)
applications for any
state/central
government/PSU in India
in last 3 financial years
as on bid submission
date. The cards
issued/proposed shall be
the total number of cards
issued during the
financial year 2014-15,
(22 of 38) [CW-15176/2018]
2015-16 and 2016-17.
9. The bidder/lead bidder or A satisfactory
consortium partner working/completion
should have experience certificate issued by client or
in the field of IT as a along with the certificate
System issued by the client towards
Integrator/Operation with work in progress for more
at least one project of than one years. The name
worth 15 crore or 3 and contact information
projects of worth 5 crore (address, telephone number,
each within the last 3 fax, email id, website) of the
years as on the bid client contact person must
submission date. The also be provided.
experience of
State/Central
Government/PSU in India
shall only be considered.
15. Power of Attorney (PoA) In the format at Appendix III
authorizing signatory for
signing of the bid.
4.2 Selection Method:
The bids shall be evaluated in terms of the technical criteria laid down in clause 3.7 of the bid. Bidder found eligible in technical evaluation shall only be considered for financial evaluation. Qualifying bidders shall be subsequently evaluated on the basis of financial bid submitted by them. The bidder who offers the minimum "user fees" shall be selected for award of contract. The L1 bidder shall be evaluated on the basis of the minimum user fees offered for the execution of the project by the bidder for the project period. Here the execution of the project shall means the installation, operation and maintenance of the project as provided in RFP.
4.3 Clarification of Bids
(i) To assist in the examination, evaluation, comparison and qualification of the Bids, the bid evaluation committee may, at its discretion, ask any bidder for a clarification regarding its Bid. The committee's request for clarification and the response of the bidder shall be through the e- Procuring portal.
(ii) Any clarification submitted by a bidder with regard to its Bid that is not in response to a request by the committee shall not be considered.
(23 of 38) [CW-15176/2018]
(iii) No change in the prices or substance of the Bid shall be sought, offered, or permitted, except to confirm the correction of arithmetic errors discovered by the committee in the evaluation of the financial Bids.
(iv) No substantive change to qualification information or to a submission, including changes aimed at making an unqualified bidder, qualified or an unresponsive submission, responsive shall be sought, offered or permitted.
(v) Document submitted during the clarification should not be of a date beyond the bid submission date.
4.4 Evaluation & Tabulation of Technical Bids 4.4.1 Determination of Responsiveness The bid evaluation committee shall determine the responsiveness of a Bid. Only those bids which qualify the Technical/Eligibility Criteria shall be eligible for evaluation for financial bids.
4.4.2 A responsive Bid is one that meets the requirement of the bidding document without any material deviation, reservation, or omission where:-
(i) "deviation" is a departure from the requirements specified in the bidding document;
(ii) "reservation" is the setting of limiting conditions or withholding from complete acceptance of the requirement specified in the bidding document; and
(iii) "Omission" is the failure to submit part or all of the information or documentation required in the bidding document.
4.5 A material deviation, reservation, or omission is one that, if accepted, shall:-
(i) affect in any substantial way the scope, quality, or performance of the subject matter of procurement specified in the bidding documents; or
(ii) limits in any substantial way, inconsistent with the bidding documents, the procuring entity's/authority's rights or the bidder's obligations under the proposed contract; or
(iii) if rectified, shall unfairly affect the competitive position of other bidders presenting responsive Bids.
4.6 Non-material Non-conformities in Bids
(i) The bid evaluation committee may waive any non-
conformities in the Bid that do not constitute a material deviation, reservation or omission, the Bid shall be deemed to be substantially responsive.
(24 of 38) [CW-15176/2018]
(ii) The bid evaluation committee may request the bidder to submit the necessary information or document like audited statement of accounts/ CA Certificate, Registration Certificate, ISO/CMMI Certificates, etc. within a reasonable period of time. Failure of the bidder to comply with the request may result in the rejection of its Bid. However, document submitted by the bidder, shall not belong to the date after the last day of bid submission date.
(iii) The bid evaluation committee may rectify non-material non-conformities or omissions on the basis of the information or documentation received from the bidder under clause 4.6(ii) above.
4.7 Methodology & Criteria for evaluation 4.7.1 Technical Bid 4.7.1.1 Procuring Authority will form an evaluation Committee which will evaluate the proposals submitted by the bidders for a detailed scrutiny. During evaluation of proposals, committee, may, at its discretion, ask the bidders for clarification of their Technical Proposals. 4.7.1.2 Technical Bids shall be tabulated by the bid evaluation committee in the form of a comparative statement to evaluate the qualification of the bidders against the criteria for qualification set out in the bidding document. Every page of Technical Compliance Sheet will be signed by Bidder without overwriting. Whenever required the proof for every commitment has to be submitted, Technical brochures should be attached where ever available).
43. This Court, deems it proper to quote Sections 4, 22 and 23 the relevant provision under the Rajasthan Transparency In Public Procurement Act, 2012 and Rules 59, 60 and 61 of the Rules, 2013:-
"4. Fundamental Principles of Public Procurement:- (1) In relation to a public procurement, the procuring entity shall have the responsibility an accountability to-
(a) ensure efficiency, economy and transparency;
(b) provide fair and equitable treatment to bidders;
(c) promote competition; and
(d) put in place mechanisms to prevent corrupt practices.
(25 of 38) [CW-15176/2018] (2) Subject to the provision of sub-section (3) of section 3, every procuring entity shall carry out its procurement in accordance with the provisions of this Act and the rules and guidelines made thereunder.
22. Pre-bid clarification (1). Any bidder may, in writing, seek clarifications from the procuring entity in respect of the bidding documents.
(2) The period within the bidders may seek clarifications under sub-section (1) and the period within which the procuring entity shall respond to such requests for clarifications shall be specified in the bidding documents. (3) All requests for clarifications and responses thereto shall be intimated to all bidders and where applicable, shall be published on the State Public Procurement Portal.
(4) A procuring entity may hold a pre-bid conference to clarify doubts of potential bidders in respect of a particular procurement and the records of such conference shall be intimated to all bidders and where applicable, shall be published on the State Public Procurement Portal.
23. Change to bidding documents.- (1) In case any modification is made to the bidding documents or any clarification is issued which materially affects the terms contained in the bidding documents, the procuring entity shall publish such modification or clarification in the same manner as the publication of the initial bidding documents.
(2) In case a clarification or modification is issued to the bidding documents, the procuring entity may prior to the last date for submission of bids, extend such time limit in order to allow the bidders sufficient time to take into account the clarification or modification, as the case may be, while submitting their bids.
(3) Any bidder who has submitted his bid in response to the original invitation shall have the opportunity to modify or re-submit it, as the case may be, within the period of time originally allotted or such extended time as may be allowed for submission of bids, when changes are made to the bidding documents by the procuring entity:
Provided that the bid last submitted or the bid as modified by the bidder shall be considered for evaluation."
Rules of 2013:-
"59. Determination of responsiveness.- (1) The bid evaluation committee shall determine the (26 of 38) [CW-15176/2018] responsiveness of a bid on the basis of bidding documents and the provisions of sub-section (2) of section 7.
(2) A responsive bid is one that meets the requirements of bidding documents without material deviation, reservation, or omission where:-
(a) "deviation" is a departure from the requirements specified in the bidding documents;
(b) "reservation" is the setting of limiting conditions or withholding from complete acceptance of the requirements specified in the bidding documents; and
(c) "Omission" is the failure to submit part or all of the information or documentation required in the bidding documents.
(3) A material deviation, reservation, or omission is one that,
(a) if accepted, shall:-
(i) affect in any substantial way the scope, quality, or performance of the subject matter of procurement specified in the bidding documents; or
(ii) limits in any substantial way, inconsistent with the bidding documents, the procuring entity's rights or the bidder's obligations under the proposed contract; or
(b) if rectified, shall unfairly affect the competitive position of other bidders presenting responsive bids. (4) The bid evaluation committee shall examine the technical aspects of the bid in particular, to confirm that all requirements of bidding documents have been met without any material deviation, reservation or omission.
(5) The procuring entity shall regard a bid as responsive if it conforms to all requirements set out in the bidding documents, or it contains minor deviations that do not materially alter or depart from the characteristics, terms, conditions and other requirements set out in the bidding documents, or if it contains errors or oversights that can be corrected without touching on the substance of the bid.
60. Clarification of bids.- (1) To assist in the examination, evaluation, comparison and qualification of the bids, the bid evaluation committee may, at its discretion, ask any bidder for a clarification regarding its bid. The committee's request for clarification and the response of the bidder shall be in writing.
(27 of 38) [CW-15176/2018] (2) Any clarification submitted by a bidder with regard to its bid that is not in response to a request by the committee shall not be considered. (3) No change in the prices or substance of the bid shall be sought, offered, or permitted, except to confirm the correction of arithmetic errors discovered by the committee in the evaluation of the financial bids.
(4) No substantive change to qualification information or to a submission, including changes aimed at making an unqualified bidder, qualified or an unresponsive submission, responsive shall be sought, offered or permitted.
(5) All communications generated under this rule shall be included in the record of the procurement proceedings.
61. Non-material Non-conformities in bids.- (1) The bid evaluation committee may waive any nonconformities in the bid that do not constitute a material deviation, reservation or omission, the bid shall be deemed to be substantially responsive. (2) The bid evaluation committee may request the bidder to submit the necessary information or document like audited statement of accounts, VAT clearance certificate, PAN etc. within a reasonable period of time. Failure of the bidder to comply with the request may result in the rejection of its bid. (3) The bid evaluation committee may rectify non-
material nonconformities or omission on the basis of the information or documentation received from the bidder under sub-rule (2)".
44. The first objection about ineligibility of private respondent is with regard to not following the technical/eligibility criteria as provided under Clause 3.7.5, 3.7.8 and 3.7.9 of RFP. This Court finds that initially the respondent No. 3 had filed one certificate dt.26.04.2018 wherein it was certified that the respondent No. 3 had supplied/personalized SCOSTA based Smart Cards of worth of more than Rs. 90 crores and more than 200 Lakhs quantity in last five financial years till December, 2017. The certificate dt.26.04.2018 is quoted hereunder:-
(28 of 38) [CW-15176/2018] "TO WHOMSOEVER IT MAY CONCERN This is to certify that M-Tech Innovations Limited, Plot no. 1-2 Rajiv Gandhi infotech Park, Hinjewadi, Pune is provide and installed all the required hardware and software, trained man power and required smart cards, consumables for the smart card based DL/RC project in Rajasthan, Uttar Pradesh, Chandigarh and Andaman Nicobar. It is also certified that, M-tech Innovations Ltd. have supplied/personalized SCOSTA based Smart Cards of worth of more than Rs. 90 Crores & more than 200 Lakhs Qty in last five financial years till December 2017. This request is issued on the request of M/s M-Tech innovation Ltd.
For National Informatics Centre Services incorporated SD (Sanjay Mahendru) DGM, NICSI"
45. This Court further finds that after clarification being sought, respondent No. 3 produced a certificate dt.14.06.2018 showing smart cards supplied in last three financial years and the details were given for three financial years 2014-15, 2015-16 and 2016-17. The said certificate dt.14.06.2018 is also reproduced hereunder:-
"TO WHOMSOEVER IT MAY BE CONCERN This is to certify that M-Tech innovations Ltd. Plot No.P-1/2 Rajiv Gandhi Infotech Park, Hinjewadi, Pune is provide and installed all the required hardware and software, trained man power and required smart cards, consumable for the smart card based DL/RC project in Rajasthan and Uttar Pradesh.
(29 of 38) [CW-15176/2018] It is also certified that M-tech innovations Ltd., have supplied/personalized SCOSTA based smart cards of worth of more than 75 Lakhs Qty. in last three financial years.
Quantity wise card issued
Year Rajasthan Project Uttar Pradesh
Project
2014-15 1642548 1305000
2015-16 1701332 1339325
2016-17 1698412 1482767
Total 5042292 4127092
The total SCOSTA cards Quantity supplied in last three years is about 916384.
SD (Sanjay Mahendru) DGM, NICSI"
46. The respondent No. 3 produced another certificate dt.14.06.2018 with regard to turnover in last three financial years. The said certificate is reproduced hereunder:-
"TO WHOMSOEVER IT MAY BE CONCERN This is to certify that M-Tech innovations Ltd. Plot No.P-1/2 Rajiv Gandhi Infotech Park, Hinjewadi, Pune is provide and installed all the required hardware and software, trained man power and required smart cards, consumable for the smart card based DL/RC project in Rajasthan and Uttar Pradesh.
It is also certified that M-tech innovations Ltd., have supplied/personalized SCOSTA based smart cards of worth of more than 15 Crore in last three financial years.
Rajasthan Project wise financial value Year Qty. Rate Net Volume Tax (Rs.) Gross Value Supplied (Rs.) (Rs.) (Rs.) 2014-15 1642548 33.8 55518122.4 9438080.808 64956203.21 2015-16 1701332 33.8 57505021.6 9775853.672 67280875.27 2016-17 1698412 33.8 57406325.6 9759075.352 67165400.95 Total 5042292 33.8 170429469.6 28973009.83 199402479.4 (30 of 38) [CW-15176/2018] M-Tech have supplied SCOSTA cards to Rajasthan almost worth of Rs.199402479 in last three financial years.
SD (Sanjay Mahendru) DGM, NICSI"
47. This Court finds that the respondents had considered certificate submitted by the respondent No. 3 of last five financial years, however, certificate was required for last three financial years and further the initial experience certificate was submitted by private respondent of worth of Rs.50 crore during last financial years but the requirement for clarification of last project of worth Rs.15 crore or three projects worth of Rs.5 crore each, within the last five financial years, on the bid submission date was required to be given. This Court finds that the clarification which was sought by the respondents was provided by the private respondent No. 3 and as such it cannot be said that the respondent No.3 was lacking in respect of supplying required number of quantity Smart Cards.
48. This Court finds that perusal of certificates dt.14.06.2018 fulfill the condition as prescribed under Clause 3.7.5 of annual turnover, fulfilment of condition 3.7.8 of issuance of at least 50 lacs SCOSTA cards and as per Clause 3.7.9 the respondent No.3 had experience of one project worth of Rs.15 crore or three projects worth of Rs.5 crore each within the last three years as on the bid submission date. This Court finds that the allegation of the petitioner-company of not fulfilling the technical/eligibility criteria on account of experience, turnover is totally baseless.
(31 of 38) [CW-15176/2018]
49. The second challenge of counsel for the petitioner with regard to not paying the processing fee as per requirement of bid document, this Court finds that apart from respondent No. 3 there was one more bidder who had not paid fees in the name of RSIL. This Court finds that the Technical Evaluation Committee found that the said inadvertent mistake committed by the respondent was a human error, on that count, any bidder or respondent No. 3 for that matter cannot be technically disqualified.
50. This Court finds that when the respondent No. 3 had paid processing fee of Rs.1,000/- by preparing Demand Draft in favour of the Transport Commissioner not in favour of RISL, the said breach of condition of Clause of note-2 appended in Section I of inviting for bids IFB (NIB) cannot be considered to be material deviation and the wrong nomenclature mentioned in processing fee, may not result into cancellation of the bid itself.
51. The third objection with regard to power of attorney (PoA) authorizing signatory for signing the bid as per format as appendix III is concerned, this Court finds that power of attorney was submitted by the respondent No. 3 and there is no such provision where the Board resolution is required as per the note appended to appendix III which provides a clear stipulation "wherever required, the bidder should submit for verification the extract of the charter, documents such as a board or shareholders resolution/power of attorney in favour of person executing this power of attorney for the delegation of power"
52. This Court finds that objection of the petitioner is baseless and as such there was no requirement of resolution of (32 of 38) [CW-15176/2018] Board of Director for submitting the bid by authorized signatory on behalf of private respondents.
53. The legal question which has been raised by learned counsel for the petitioner is with regard to material deviation in the bid of respondent No. 3 and Bid Evaluation Committee is alleged to have wrongly determined the responsiveness of bid of respondent No. 3 as treating it to be technically qualified.
54. This Court on reading of Rule 59 of the Rules, 2013 finds that the responsive bid should meet the requirements of the bidding documents without material deviation and "deviation" is a departure from the requirements specified in the bidding documents. Material deviation if accepted, should not affect in any substantial way the scope, quality, or performance of the subject matter of procurement. Material deviation if accepted, should not be inconsistent with the bidding documents, the procuring entity's rights or the bidder's obligations under the proposed contract.
55. This Court finds that from the reading of Rule 59 (3)(b) of the Rules, 2013 that the material deviation if rectified, should not unfairly affect the competitive position of other bidders presenting responsive bids.
56. Learned counsel for the petitioner has tried to impress upon this Court that the rectification in the bid of respondent No. 3 by permitting material deviation has affected competitiveness of the petitioner. This Court finds that by seeking clarification as provided under Rule 60 of the Rules, 2013 the Bid Evaluation Committee has not deviated from the requirement as per tender document. The purpose of clarification from the different bidders is with the intention to seek elaborate and detailed information (33 of 38) [CW-15176/2018] which could not have been supplied at the initial time while submitting the bid. The chance to rectify or to fill the gaps by changing the norms of the tender condition is one aspect of the matter and eliciting further information/clarification in continuation of earlier information, is a different aspect.
57. This Court finds that none of the alleged violations/non fulfilment of technical criteria as alleged by the petitioner, would come within the scope of "material deviation" on the basis of which action of the official respondents can be termed to be violating the provisions of the Rajasthan Transparency In Public Procurement Act, 2012 and Rules, 2013.
58. The submission of learned counsel for the petitioner that the Tendering Authority is oblized strictly to adhere to standard and requirements laid down by it, there is no quarrel on the proposition of law that the Tendering Authority is required to ask for compliance of standard and requirements as per the tender document.
59. The submission of learned counsel for the petitioner that the Tendering Authority is required to reject bid if it suffers one or material defects, this Court finds that if the bid does not meet the requirement of the bidding document and there is material deviation, reservation or omission, such bid cannot be held to be responsive bid. This Court finds that for defining the material defects, the definition given in the Act of 2012 will determine nature of defects.
60. This Court finds that the Rule 61 of the Rules, 2013 provides that Bid Evaluation Committee may waive any non- conformities in the bid that do not constitute a material deviation, (34 of 38) [CW-15176/2018] reservation or omission and such bid shall be deemed to be substantially responsive. The Sub-rule (3) of the Rule 61 further gives power to the Bid Evaluation Committee to rectify non- conformities or omission on the basis of information or documents received from the bidders. This Court finds that under Sub-rule (2) of the Rule 61, Bid Evaluation Committee may ask the bidder to submit necessary information or certain documents like audited statements of accounts, VAT clearance certificate, PAN etc. within a reasonable period of time.
61. The first part of Sub-rule (2) of the Rule 61 gives power to the Bid Evaluation Committee to ask necessary information and in pursuance of such power conferred, if any information is sought, it cannot be inferred that material deviation is sought to be rectified. The second part of Sub-rule (2) of Rule 61 provides for submitting certain documents and definition of documents as per the Sub-rule (2) of the Rule 61 is illustrative as word etc. has also been used after quoting certain documents to be submitted on the request of the Bid Evaluation Committee.
62. This Court finds that if some information or document is sought by way of clarification by the Bidding Evaluation Committee, the same cannot be termed as an opportunity to rectify the material deviation.
63. This Court finds that the Rule 60 of the Rules, 2013 gives power to the Bid Evaluation Committee to ask any bidder for clarification regarding its bid. Sub-rule (4) of the Rule 60 puts a rider that no substantive change to qualification information or to a submission, including changes aimed at making an unqualified bidder, qualified or an unresponsive submission, responsive shall (35 of 38) [CW-15176/2018] be sought, offered or permitted. The emphasis again is on the substantive changes which are not permissible in the ambit of clarification of bids.
64. The Apex Court in the case of [Central Coalfields Ltd. & Ors. Vs. SLL-SML (Joint Venture Consortium) & Ors.] reported in 2016 8 SCC 622 has held that whether a term of NIT is essential or not, is a decision taken by the Procuring Entity which should be respected. The Apex Court has further held that even if the NIT term is essential, the employer has the inherent authority to deviate from it provided deviation is made applicable to all the bidders and potential bidders.
65. The relevant para 47, 48 and 49 of the said judgment is quoted hereunder:-
"The result of this discussion is that the issue of the 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. As held in Ramana Dayaram Shetty the terms of NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata cellular there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone or a decision "that no responsible authority acting reasonably and in accordance with relevant law could have reached" as held in Jagdish Mandal followed in Michigan Rubber.
Therefore, whether a term of NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is essential, the employer has the inherent authority to deviate from it provided the (36 of 38) [CW-15176/2018] deviation is made applicable to all bidders and potential bidders as held in Ramana Dayaram Shetty. However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. The lawfulness of that decision can be questioned on very limited grounds, as mentioned in the various decisions discussed above, but the soundness of the decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot.
Again, looked at from the point of view of the employer if the courts take over the decision- making function of the employer and make a distinction between essential and non-essential terms contrary to the intention of the employer and thereby rewrite the arrangement, it could lead to all sorts of problems including the one that we are grappling with. For example, the GTC that we are concerned with specifically states in Clause 15.2 that "Any bid not accompanied by an acceptable Bid Security/EMD shall be rejected by the employer as non-responsive". Surely, CCL ex facie intended this term to be mandatory, yet the High Court held that the bank guarantee in a format not prescribed by it ought to be accepted since that requirement was a non-essential term of the GTC. From the point of view of CCL, the GTC has been impermissibly rewritten by the High Court."
66. The judgment cited by the learned counsel for the petitioner in the case of [Ramana Dayaram Shetty Vs. Internation Airport Authority of India & Ors. and Larsen and Toubro Ltd. & Anr. Vs. Union of India (supra) has laid down the law that the standard of eligibility laid down in the notice for tender could not be changed arbitrarily and has to be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards.
(37 of 38) [CW-15176/2018]
67. The reliance on the judgment of Poddar Steel
Corporation Vs. Ganesh Engineering Works & Ors. (supra), the Apex Court has classified requirements in a tender notice into two categories. (i) essential conditions of eligibility. (ii) ancillary or subsidiary condition.
68. The essential condition of eligibility, are required to be complied with and the authorities cannot be permitted to deviate from the same.
69. This Court finds that the petitioner-company was declared technically qualified and was permitted to participate in the second stage of tender and its financial bids was considered and private respondent No. 3 was found L1. The petitioner- company itself has been beneficiary/the right given to it to give clarification as it had not submitted the GST in the form of REG-25 and later on it submitted the same certificate after clarification.
70. The petitioner-company while filing the instant petition, had also filed stay application and this Court on 25.07.2018 passed interim order that no work order was to be issued by the State Government in favour of the respondent No. 3 pursuant to LOI. This Court finds that the tender was issued in respect of supplying Smart Card Based Vehicle Registration Certificate and driving licence and the Procuring Entity was prevented from awarding the contract and the work order could not be issued due to filing of present frivolous writ petition. The public at large has also suffered and further there has been loss of State exchequer as well.
71. This Court finds that the filing of such frivolous writ petition, needs to be deprecated. The writ petition is dismissed (38 of 38) [CW-15176/2018] with a cost of Rs.10,00,000/- imposed upon the petitioner and cost would be deposited in the Office of Rajasthan State Legal Services Authority, Jaipur. The cost if not paid within a period of four weeks, the same would be recovered from the petitioner as arrears of land revenue.
72. Accordingly, the present writ petition is dismissed with the aforesaid cost.
(ASHOK KUMAR GAUR),J A.Kumar/ Powered by TCPDF (www.tcpdf.org)