Andhra Pradesh High Court - Amravati
Vedanta Limited, vs The Board Of Trustees Of Visakhapatnam ... on 3 March, 2022
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HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
WRIT PETITION No.242 of 2022
ORDER :
This Writ Petition is filed by the petitioner questioning their disqualification as a bidder for the work of Mechanization of WQ 7 & 8 berths in the respondent Port Trust and to issue a consequential relief.
This Court has heard Sri P. Veera Reddy, learned senior counsel for the petitioner and Sri Raviteja Padiri, learned standing counsel for Visakhapatnam Port Trust PETITIONER'S SUBMISSIONS:
Learned counsel for the petitioner submits that the petitioner is aggrieved by the action of the respondent dated 17.12.2021 and the disqualification of the petitioners bid on the sole ground that the bid was not filed "online" and was filed physically only.
Learned senior counsel submits that the petitioner participated in a bid for mechanization of WQ 7 and 8 berths. They had purchased the documents (RFQ) on 11.11.2021. They submitted their bid on 30.11.2021. According to the petitioner they were required to submit the bid in the physical form along with a soft copy of all the documents. The case of the petitioner is that they had physically submitted their bid complete in all respects on 30.11.2021. During the course of meeting for opening of bids, they were informed that they were 2 disqualified on the ground that they had not uploaded their bid in the online method in a particular portal https://etenders.gov.in. Learned senior counsel for the petitioner took this Court to various clauses available in the bid documents, which according to him provided for filing of the bid manually and in the physical form only. Learned senior counsel argues that at no point of time that the petitioners were informed that they had to file a bid in the online form. Learned senior counsel drew the attention of this Court to the very notice of the invitation which stated that the documents should be submitted by hand delivery or sent by registered post etc. He also drew the attention of this Court to Clause 2.1.0 of RFQ which states that the respondent has the right to modify the RFQ terms by issuing an addendum. But as per 2.10.2 the addendum this has to be sent in writing to all the applicants. Learned counsel drew the attention of this court to Clause 2.1.3 which mandated that the application should be filed in an envelope which needed to have certain markings, sealing, seals etc. He also drew the attention of this court to Clause 2.1.3 stating that the application submitted by fax, telex or email shall be rejected. Learned senior counsel, therefore, argues that the respondent did not act bona fide or in a manner required as per law. According to him the action of the respondent is per se arbitrary and are therefore this Court must interfere at this stage only. Learned senior counsel relies upon the judgment of the Hon'ble Supreme Court of India in 3 B.S.N.Joshi & Sons Ltd., v Nair Coal Services Ltd., 1to argue that the respondent did not act as required under law and that their action is not fair and that consequently the Writ Petition is to be allowed.
In reply to the stand taken by the respondent that a corrigendum was issued he submits that the same was never communicated to the petitioner. It is also submitted by the learned senior counsel that at no point of time the respondent clarified that the electronic filing is mandatory. Learned senior counsel submitted that they had purchased their bids on 11.11.2021 and the alleged clarification was issued in a meeting purportedly held on 05.11.2021. Learned senior counsel submits that the petitioner did not even purchase the bid papers at that point of time and they were not informed of this so-called mandatory clause.
RESPONDENT SUBMISSIONS:
In reply to this, Sri Raviteja Padiri, learned standing counsel argues in line with what is stated in his counter affidavit. According to him on 05.11.2021 in the pre-
application meeting held some of the bidders raised some queries, as a result of which a corrigendum was issued making online submission of the RFQ mandatory. Learned counsel argues that in this case petitioner merely filed their bid in the manual method but did not file in online method which according to the learned standing counsel is mandatory. He 1 (2006) 11 SCC 548 4 also argues that the bidder should take care to download all the clarifications etc., and to download all the required data.
He relies upon a note which is annexed to the bid which states as follows:
"Note: In case RFQ document is downloaded from VPT's website, the applicant is responsible to download Addendums / Amendments / replies to queries etc., if any issued by the Port"
Learned counsel argues that it is not correct to state that the corrigendum was not noticed by the petitioner as he has a duty to download all the addendums, amendments and reply to queries. In the brief submitted by the learned standing counsel to the Court in a single page he points out that there are 13 corrigendum issued and he highlights the present corrigendum. Therefore, for this reason learned counsel argues that as the petitioner failed to meet the essential condition the rejection of this bid is correct. He relies upon a compendium of case law to argue that the Court should lightly interfere in tender matters etc., that the mandatory condition is not fulfilled and that the decision is rightly taken. COURT:
In the opinion of this Court there is no dispute on facts in this case. It is clear that the petitioner purchased the bid documents and submitted their bid in the manual mode/physically only The petitioner was disqualified as they have not submitted their bid in the online mode also. The disqualification is based on a corrigendum to the tender 5 document which mandated the filing of the bid in the online or electronic form also.
After hearing the learned counsels the questions that arise are about the corrigendum said to have been issued on
12.11.2021:- Whether the same is mandatory and whether it was communicated to the petitioner.
This Court notices that the entire stand of VPT- respondents is based upon the alleged corrigendum which was issued in a meeting dated 12.11.2021. As can be seen from the pleadings, documents etc., the pre-bid meeting that was held on 12.11.2021 was for "EQ7" project (the present case and the present tender relates to WQ7/WQ8). In this pre-bid conference, a corrigendum is said to have been issued, wherein it is stated that the completed application is to be submitted through online CPC portal and also to submit the hard copies.
Hence, the decision making process based on this "corrigendum clause" is being examined by this Court and the conditions in the bid document/tender document that are essential are discussed below.
The first clause that falls for consideration about the manner of filing, is in Ex.P.1. This is the opening page of the document which describes the RFQ etc. "....The completed Application in the required format containing all information requested in RFQ document should be submitted either by hand delivery or sent by Registered Post / Speed Post / Courier to reach the office of the Chief Mechanical Engineer, Administrative Office, Building, 2nd floor, Visakhapatnam Port Trust, 6 Visakhapatnam - 530035 before 14:00 hrs., on 20.11.2021 and will be opened at 15:00 hrs on the same day." (Emphasis supplied) The next clause in the immediate next page is as follows:
"Note: in case an RFQ document is downloaded from VPT's website, the Applicant is responsible to download Addendums / Amendments / Reply to Queries etc., if any issued by the Port (CHIEF MECHANICAL ENGINEER)."
The next important clause is 2.10 -
"2.10 Amendment of RFQ 2.10.1 At any time prior to the deadline for submission of application, the Authority may, for any reason, whether at its own initiative or in response to clarifications requested by an Applicant, modify the RFQ by the issuance of Addenda.
2.10.2 Any Addendum thus issued will be sent in writing to all those who have purchased the RFQ.
2.10.3 In order to afford the Applicants a reasonable time for taking an Addendum into account, or for any other reason, the Authority may, in its sole discretion, extend the Application due date." (Emphasis supplied) Clauses 2.13.1 and 2.13.2 (vii) are also important:
"2.13 Sealing and Marking of Applications 2.13.1 the Applicant shall submit the Application in the format specified at Appendix-I, together with the documents specified in Clause 2.13.2, and seal it in an envelope and mark the envelope as "APPLICATION". The applicant shall seal the original and the copy of the Application, together with their respective enclosures, in separate envelopes duly marking the envelopes as "ORIGINAL" and "COPY". The envelopes shall then be sealed in an outer envelope which shall also be marked in accordance with Clauses 2.13.2 and 2.13.3. .....
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(vii) 2 (two soft copies of the Application on a Compact disc (CD): and ....
....
2.13.5 Applications submitted by fax, telex, telegram or e- mail shall not be entertained and shall be rejected." A conjoint reading of these clauses makes it very clear that (a) RFQ document shall be downloaded from the CPP portal and submitted in the physical form by hand delivery or sent by Registered Post / Speed Post / Courier to reach the office of the Chief Mechanical Engineer-Respondent No.3.
b) these clauses can be amended but Clause 2.10.2 very clearly states that any addendum issued will be sent "in writing" to all those who have purchased the RFQ. It is clear that there is a duty cast upon the respondent Port to send every addendum in writing to all those who have purchased the RFQ. Considering the importance of addendum, Clause 2.10.3 states that the authority can also extend the date of application.
c) Clause 2.13 also assumes importance. It describes in great detail the manner in which the application is to be physically filed. The sealing of the cover, the enclosures to be included, the manner in which the cover is to be marked etc., are spelt out with great clarity in 2.13. Separate envelopes are to be given marking them as Original and Copy. These two envelopes should be kept in an outer envelope which should also be marked in accordance with clause 2.13.2 and 2.13.3. The envelope should also contain two soft copies of the application on a Compact disc.
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c) Clause 2.31.5 assumes even greater significance. It clearly states that an application submitted by fax, telex, telegraph or e-mail shall not be entertained and shall be rejected.
A conjoint reading of all these clauses makes it very clear that as per the original terms of the bid which were purchased by the petitioner the application / bid should be submitted in the physical form only. It is also specified the bid was submitted in online form it will not be entertained and shall be rejected.
This Court also notices that the so called addendum issued on 05.11.2021 is not filed as a document. It is mentioned in a typed note submitted during the hearing and it is as follows:
"There are about 13 Corrigendums issued to the RFQ in the present project. Out of the 13, Corrigendum No.8 relates to Page No.5 Para No.5 of the RFQ Document, by which there is a modification in respect of submitting the RFQ document. As per the modified condition, The completed Application in the required format containing all information requested in RFQ document should be submitted through online in CPP Portal, https://etenders.gov.in and also submit the hard copies by hand delivery or sent by Registered Post / Speed Post / Courier to reach the ......... before 15.00 hrs on 20.11.2021."
It is relied upon in the counter affidavit also. 9 Even if what is stated in the counter affidavit is treated at face value as correct, this Court is of the opinion that the Claus does not indicate that the bid filed in the manual mode / physical mode will be rejected, if the same is not filed in the electronic form also. In the opinion of this court if filing in the electronic mode was mandatory it should have been very specifically clarified in the corrigendum and also informed/communicated in writing in terms of Clause 2.10.2 to every purchaser of the bid documents. The mere fact that such a corrigendum was issued and it was purportedly uploaded on the website does not make it "mandatory". It should have been expressly communicated to all the potential bidders since it is contrary to many of the other clauses. The language used should be clear and categorical, if it leads to such drastic consequences. For example, in Clause 2.13.5 it is very clearly stated that if the application is submitted by e-mail it shall not be entertained and shall be rejected. Such clear and categorical language spelling out the consequences is not visible from the corrigendum. Clauses with potentially serious consequences should be clearly and categorically spelt out in the bid documents more so when they are the result of an amendment or an addendum.
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There is also an issue raised by the petitioner about the portal from which they had downloaded the document. The petitioner before this Court is clearly stating that they have downloaded the RFQ document from the CPP portal but not from the VPT portal. The clause relied upon by the respondent- VPT casting a duty on a bidder to download the addendum is referring only to VTPs website and it is not referred to CPP Portal.
Apart from what is stated above there is no material available before this Court to show that the corrigendum as stated has actually been posted on the website.
Therefore, while being conscious of this Courts limitations while exercising power in tender matters under Article 226 of the Constitution this Court has to hold that the corrigendum relied upon by the respondent does not support their case and the decision taken by the respondent is arbitrary and runs contrary to the law which mandates that every bidder is entitled to fair and equal treatment. In the opinion of this Court, the number of clauses which are reproduced earlier which mandated the filing of the tender document in a particular format (physically) cannot be brushed aside totally. The weight that is to be given to these clauses is very significant in the opinion of this Court. The respondent VPT definitely has a right to modify the clause but they should communicate the same "in writing". Even if the corrigendum as mentioned in the note is taken at its face value and can be said to have been 11 communicated, this Court is of the opinion that it was never specified anywhere that if the bid is also not filed in the electronic mode / offline also it will be rejected. Only if the corrigendum is as per the tender conditions and it specifies that the bids will be rejected if they are not filed both in the physical and electronic mode, can it be said that the mandatory condition was not followed by the petitioner. Needless to say this corrigendum must be communicated clearly to all bidders. In the absence of any such proof and in the light of these clear and categorical directions given to the petitioner how to file a tender this court is of the opinion that the respondent's decision is arbitrary and contrary to their own instructions given at various other places in the tender document.
In addition to all of the above, as mentioned earlier, the tender is still at the stage of evaluation of the pre-bid qualifications. The bidders are being pre -qualified and then invited to file their financial bids etc. Therefore, public interest is also not being hurt in any way nor is any delay likely to be caused to the project itself. The writ petition is itself being decided with the consent of all the learned counsels.
The very purpose of inviting tenders is to ensure that the respondent-VPT gets the service it wishes at the best prices. By widening the scope or by getting more bids the requirements of the respondent would in fact be satisfied. More competitive bidding would result in better services for the respondent-VPT since the project is a long term project.
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In conclusion this Court holds that the respondent VPT which is a state instrumentality should be a model employer. It should not take hyper technical pleas. Transparency, clarity and procedural fairness in action are essential but unwritten conditions in all such tender documents which are incorporated by law. The said procedural fairness aspect is not visible in this case. The corrigendum is not clear enough to eliminate the petitioner. The case law filed by the petitioner is not being adverted to in full. They are the settled law on the subject. The locus classicus is Tata Cellular v Union of India2. In line with para 77 of this famous judgment if the decision making in the present case is examined this Court finds that: the decision making authority exceeded its powers; committed an error of law; reached a conclusion that no reasonable tribunal would reach. The facts taken as a whole cannot logically warrant the conclusion of the respondent VPT. The procedural impropriety is striking and clear. The petitioner was denied the right to equality and fair treatment (Meerut Development Authority v Association of Management Studies3).
For all the above reasons, the Writ Petition is allowed. The action of the respondent No.1 in disqualifying the petitioner at this stage is held to be illegal. The respondents are therefore directed to consider the bid submitted physically 2 (1994) 6 SCC 651 3 (2009) 6 SCC 171 (para 27) 13 by the petitioner and evaluate it strictly on its own merits. There shall be no order as to costs.
Consequently, the Miscellaneous Applications pending, if any, shall stand closed.
__________________________ D.V.S.S.SOMAYAJULU,J Date:03.03.2022 Ssv 14 HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU WRIT PETITION No.242 of 2022 Date:03.03.2022 ssv