Rajasthan High Court - Jodhpur
M/S. K.R. Berwal & Sons vs Bharat Petroleum Corporation Ltd.& Ors on 24 November, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 9293 / 2017
M/s. K.R. Berwal & Sons, Bhinmal-sanchore Road, Arnay Through
Its Proprietor Shri Babu Lal Bishnoi S/o Shri Kishna Ram Bishnoi,
Aged About 55 Years, Resident of Arnay, Sanchore.
----Petitioner
Versus
1. The Bharat Petroleum Corporation Limited, Through Its
Transport Manager, Plot No. 5-6 A, Sector-I, Noida (UP) 201 301.
2. M/s E-procurement Technology Limited Through Its Coordinator,
210/208, Wall Street-II, Opposite Orient Club, Nr-Gujrat College,
Elis Bridge, Ahmedab 380006.
3. The Senior Manager, Transport Retail-north, BPCL, Noida (UP).
4. The Depot Manager-cum-location Incharge, BPCL Salawas,
Jodhpur
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Manoj Bhandari
For Respondent(s) : Mr. Vinay Kothari
_____________________________________________________
HON'BLE MS. JUSTICE NIRMALJIT KAUR
Order 24/11/2017 The petitioner-company herein is seeking permission to allow the petitioner-firm to participate in the tender process initiated by the respondent corporation for transportation of petroleum products X-location Salawas in pursuant to the NIT dated 17 th June, 2017 and accept its offline form and allow the petitioner to take part in the tender process, if it is otherwise eligible.
The respondent invited tender for issuing the NIT for Tank Lorry requirement for Road Transport of bulk petroleum products.
(2 of 5) [CW-9293/2017] The tender document downloading date was uptil 17 th June, 2017 till 05:00 p.m. Tender Closing date was specified as 11 th July, 2017 till 02:00 p.m and the tender opening date was also fixed for 11 th July, 2017 at 02:30 p.m. It is contended that the petitioner being eligible in all respects tried to submit his online application on 10 th July, 2017 but no link was sent by the respondent corporation despite the registration of the petitioner company for submission for applying in pursuance to the NIT in Technical Pre Qualification Bid. The petitioner again tried on 11 th July, 2017 but still he could not get through. The petitioner is stated to have made various efforts to do the needful but he was unsuccessful till at about 1 p.m. At about 1 p.m, the petitioner company was asked by the respondent corporation to follow certain steps by email for submitting the online form. The petitioner company immediately tried again and this time at about 01.30 p.m. the petitioner managed to get the link and he accordingly started uploading the online form. However, the entire form could not be uploaded and at 2:00 pm the link was finally closed. Having failed to submit his online form, the petitioner accordingly filed his offline form, which was not accepted.
The present writ petition was filed on 27/07/2017 for the relief claimed herein. By an interim order passed by this Court on 18/08/2017, the respondents were directed to consider offline form submitted by the petitioner.
Reply has been filed. As per reply, the petitioner participated in the pre bid meeting. The entire idea and intent to conduct the said pre bid meeting was to ensure that the tenderers (3 of 5) [CW-9293/2017] do not face any difficulty in terms of the submission of the online as well as the paper application. The general instructions already provided are said to be elaborated to the extent that the same also advise the tenderers who are not conversant with E- Tendering procedures to start filling up the form much before the due date / time so that there is sufficient time available with them. The petitioner got himself registered to participate in the online process as long as on only on 9 th July, 2017. Further, the link was duly sent by the respondent corporation and, therefore, the submission that the link was sent subsequently is incorrect. It is further submitted that 11 application forms were downloaded. Thus they were 11 participants who were interested in the said tender process. However, only 9 of them furnished their online applications within the given dead line.
Learned counsel for the parties were heard at length. In almost similar set of circumstances, learned Single Judge of this Court at Jaipur Bench, Jaipur in S.B. Civil Writ Petition No. 3405/2016 (GIS Consortium India Pvt. Ltd. vs. State of Rajasthan & Ors., decided on 20/05/2016) dismissed the writ petition wherein the issue too was whether the non- submission of bid within the time was liable to be accepted on the ground that the same was either attributed to the petitioner or the respondents. In the said case, one of the reasons for concluding that there was no fault at the behest of the respondent was that 8 bids were received without any complaint making it evident that there was no glitch whatsoever in the system of the respondent. The appeal filed against the judgment and order of the learned (4 of 5) [CW-9293/2017] Single Judge too stands dismissed. The argument that no prejudice shall be caused to any tenderer or to the respondents and that it only provides beneficial competent environment to respondents was also raised before the learned Division Bench in the case of M/s. GIS Consortium India Pvt Ltd. (supra) which was dismissed.
In the instant case, it is not disputed that the cut off time for the submission of the online form was 02:00 p.m on 11 th July, 2017. It is also not disputed that the petitioner had participated in the pre bid meeting and the entire process of E-Tendering was duly understood. The petitioner having participated in the pre bid meeting was aware of each and every detail and was made conversant with the E-Tendering procedures. This Court finds from the pleadings as well as from the documents placed on record and the arguments that the petitioner has not been able to point out any lapse at the behest of the respondent corporation. The very fact that 9 out of 11 interested participants managed to submit their online form well within time shows that there was no fault on the side of the respondents and there is no reason as to why the petitioner could not succeed in filling the online form like the other applicants. Any failure on the petitioner's end cannot be condoned and no relaxation after the cut off time can be granted in the facts of the present case. Moreover, there is no allegation of malafide or that the respondents in any manner violated the conditions, guidelines or instructions. In the absence of any arbitrariness or malafide, no case for directing the respondents to consider the bid of the petitioner company in pursuance to an offline form which (5 of 5) [CW-9293/2017] was submitted after the cut off time is made out.
At this stage, learned counsel for the petitioner company submitted that the respondents have duly considered their bid in pursuance to the interim order passed by this Court. The petitioner cannot take advantage of the said interim order. Any such interim direction is always subject to the final outcome of the writ petition especially taking into account that the said direction was exparte.
Dismissed accordingly.
(NIRMALJIT KAUR), J.
sanjaysolanki,pa