Gujarat High Court
P Kavitha vs State Of Gujarat & 5 on 21 June, 2017
Bench: M.R. Shah, B.N. Karia
C/SCA/4731/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4731 of 2017
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/
and
HONOURABLE MR.JUSTICE B.N. KARIA Sd/
=============================================
1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
=============================================
P KAVITHA....Petitioner(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
=============================================
Appearance:
MR RR MARSHALL, SENIOR ADVOCATE with MR MRUGEN K PUROHIT, ADVOCATE for the
Petitioner
MR DHAWAN JAYSWAL, ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1
MR KAMAL TRIVEDI, SENIOR ADVOCATE with MR DHAVAL G NANAVATI, ADVOCATE for the
Respondent(s) No.2 & 3
MR SHALIN MEHTA, SENIOR ADVOCATE with MR NEERAJ J VASU, Advocate for the
Respondent(s) No. 6
Mr SP MAJMUDAR, Advocate for the Respondent(s) No. 5
Mr YATIN SONI, Advocate for the Respondent(s) No. 4
=============================================
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 21/06/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] By way of this petition under Article 226 of the Constitution of India the petitioner one of the bidder who had submitted her bid for the tender work for Door to Door Refuse Garbage Collection and Page 1 of 24 HC-NIC Page 1 of 24 Created On Mon Aug 14 02:54:26 IST 2017 C/SCA/4731/2017 CAV JUDGMENT Transportation using close body of vehicles model of 2015 RTO passing, with Tipping Arrangement including labours in accordance with Municipal Solid Waste (Management and Handling) Rules, 2016 for the period of 5 years for all seven (East, West, SouthWest, SouthEast, North, South and Central) Zones of Surat City has prayed for an appropriate writ, direction and order quashing and setting aside the action of the respondent - Surat Municipal Corporation (hereinafter referred to as "SMC") in considernig the bid submitted by M/s. Western Imaginary Transcon Pvt. Ltd. as well as the bid submitted by Om Swachatha Corporation as qualified for the Tender Notice No.PHD/DCHH/19/201617 issued by the SMC for Door to Door Refuse Garbage Collection and Transportation using close body of vehicles model of 2015 RTO passing, with Tipping Arrangement including labours in accordance with Municipal Solid Waste (Management and Handling) Rules, 2016 for the period of 5 years. The petitioner has also further prayed for an appropriate writ, direction and order directing the respondent authorities to consider the price bid submitted by the petitioner for the aforesaid tender for awarding the contract in western zone.
[2.0] The facts leading to the present Special Civil Application in nut shell are as under:
[2.1] That on 08.07.2016, SMC issued etender notice calling online tender for Door to Door Refuse Garbage Collection and Transportation using close body of vehicles model of 2015 RTO passing, with Tipping Arrangement including labours in accordance with Municipal Solid Waste (Management and Handling) Rules, 2016 (hereinafter referred to as "Rules, 2016") for the period of 5 years. That for the aforesaid, Surat City was divided into 7 zones viz. East, West, SouthWest, SouthEast, Page 2 of 24 HC-NIC Page 2 of 24 Created On Mon Aug 14 02:54:26 IST 2017 C/SCA/4731/2017 CAV JUDGMENT North, South and Central. That pursuant to the said etender notice the petitioner had also participated in the said tender proceedings. That the petitioner had submitted the bid for West Zone. It appears that pursuant to the aforesaid tender notice, respondent Nos.5 and 6 herein and other contractors submitted their bids. It appears that the respondent No.5 Om Swachatha Corporation submitted the bids in respect of 3 zones viz. West Zone, SouthEast Zone and South Zone. It appears that respondent No.6 herein - Western Imaginary Transcon Pvt. Ltd. also submitted its bid. That 12.12.2016 was the last date for online submission, which was subsequently extended firstly till 19.12.2016, secondly till 26.12.2016, thirdly till 30.12.2016 and lastly it was extended till 16.01.2017. The aforesaid dates were extended from time to time by different corrigendums. That as per the tender notice the last date of submission of demand draft of tender fees, EMD in physical form was between 14.12.2016 to 19.12.2016. However, the same was extended to 21.01.2017. The respective bidders submitted theirs bids. That the work of scrutiny of tender notice was given to an independent agency i.e. Facile Maven Private Limited. It appears that the SMC divided the tender process in three parts i.e. (1) opening of prequalification bid (wherein EMD aspect, tender fees was required to be verified); (2) technical bid will be opened. That after stage 1 and stage 2 the financial price bid was to be opened by the SMC. That after scrutiny the techincal bids of all the contractors came to be opened and evaluated wherein alongwith the petitioner respondent Nos.4 to 6 herein are also held and/or considered technically qualified.
[2.2] Feeling aggrieved and dissatisfied with the impugned action of the respondent Authority SMC in treating the bid submitted by the respondent Nos.4 to 6 more particularly respondent Nos.5 and 6 being technically qualified, the petitioner has preferred the present Special Page 3 of 24 HC-NIC Page 3 of 24 Created On Mon Aug 14 02:54:26 IST 2017 C/SCA/4731/2017 CAV JUDGMENT Civil Application.
[3.0] Shri R.R. Marshall, learned Senior Advocate has appeared on behalf of the petitioner and Shri Kamal Trivedi, learned Senior Advocate has appeared on behalf of the Surat Municipal Corporation. Shri Shalin Mehta, learned Senior Advocate has appeared on behalf of respondent No.6, Shri S.P. Majmudar, learned Advocate has appeared on behalf of respondent No.5 and Shri Yatin Soni, learned Advocate has appeared on behalf of respondent No.4.
[4.0] Shri Marshall, learned Counsel appearing on behalf of the petitioner has vehemently submitted that action of the respondent Authority SMC in treating / considering respondent Nos.5 and 6 as technically qualified is absolutely illegal, arbitrary and malafide to favour respondent Nos.5 and 6 who as such were ineligible inasmuch as they did not fulfill the eligibility criteria mentioned as per the tender notice and thereby they were required to be declared as technically disqualified.
[4.1] Now, so far as the allegation with respect to respondent No.6 is concerned, it is the case on behalf of the petitioner that respondent No.6 was required to be declared technically disqualified on the following grounds.
(1) That the respondent No.6 was a Joint Venture (2) That the respondent No.6 did not submit all the documents in English language (3) That the respondent No.6 did not submit the required copy of agreementin support of the turnover and experience In support of his above submissions, Shri Marshall, learned Counsel appearing on behalf of the petitioner has submitted that as per the special notes to the postqualification criteria and evaluation Page 4 of 24 HC-NIC Page 4 of 24 Created On Mon Aug 14 02:54:26 IST 2017 C/SCA/4731/2017 CAV JUDGMENT procedure, the bid submitted by the Joint Venture shall not be considered. It is submitted that in the present case the respondent No.6 being a Joint Venture was disqualified to submit the bid and therefore, its bid was liable to be rejected. It is submitted that despite the above the respondent No.6 is held to be technically qualified.
[4.2] It is further submitted by Shri Marshall, learned Counsel appearing on behalf of the petitioner that as per Clause 25 of Important Instructions to the Contracts / Tenderers / general terms and conditions and disqualification clause, if the tender is in a language other than the English or English translation in case of other language, such a tender shall be disqualified and need not be taken for consideration. It is submitted that in the present case the tender documents submitted by the petitioner such as the experience certificate of agreement are not in English but are in vernacular language and therefore, the bid submitted by the respondent No.6 was liable to be rejected and the respondent No.6 was liable to be declared disqualified.
[4.3] It is further submitted by Shri Marshall, learned Counsel appearing on behalf of the petitioner that even otherwise considering the work completion certificate produced by the respondent No.6 and the experience of the respondent No.6, it cannot be said that the respondent No.6 can be said to have the requisite experience of door to door refuse garbage collection and transportation. It is submitted that therefore when the respondent No.6 was disqualified on the aforesaid grounds the bid submitted by the respondent No.6 was not required to be considered at all. It is submitted that the respondent No.6 is found to be L1 and the respondent No.5 is found to be L2 and the petitioner is L3. It is submitted that therefore if the respondent Nos.5 and 6 would have been considered technically disqualified and their bids are not considered in Page 5 of 24 HC-NIC Page 5 of 24 Created On Mon Aug 14 02:54:26 IST 2017 C/SCA/4731/2017 CAV JUDGMENT that case the petitioner would be L1. Therefore, it is requested to quash and set aside the action of the respondent SMC in considering the respondent No.6 as technically qualified and to consider its bids.
[4.4] Now, so far as the allegation against the respondent No.5 is concerned, it is vehemently submitted that the respondent No.5 being Joint Venture was required to be declared disqualified and its bid was liable to be rejected on that ground. It is submitted that in the work completion certificate and Agreements, the respondent No.5 is stated to be Joint Venture. It is submitted that therefore considering para 4 of the postqualification criteria and evaluation procedure and as per the terms and conditions of the tender notice the bids submitted by the Joint Venture shall not be considered. It is submitted that therefore, the action of the respondent in holding and/or considering the respondent No.5 as technically qualified and to consider its bids is absolutely illegal, most arbitrary and biased which deserves to be quashed and set aside.
[4.5] It is further submitted by Shri Marshall, learned Counsel appearing on behalf of the petitioner that even the respondent No.5 did not submit the full EMD on or before the date of submission of the EMD i.e. on or before 21.01.2017. It is submitted that it is an admitted position that when the petitioner submitted the EMD for three zones for which the bids were submitted, the full amount of EMD were not submitted. It is submitted that as per the terms and conditions of the tender notice the bidder was required to furnish separate EMD for each zone. It is submitted that as per the general terms and conditions the demand draft towards tender documents fees can be submitted alongwith the EMD before the due date. It is submitted that as per the general terms and conditions the same should be as per the details given online and it should be drawn before last date of uploading of the Page 6 of 24 HC-NIC Page 6 of 24 Created On Mon Aug 14 02:54:26 IST 2017 C/SCA/4731/2017 CAV JUDGMENT tender. It is submitted that last date for submitting the EMD was 21.01.2017. It is submitted that as respondent No.5 did not deposit the full amount of EMD on or before 21.01.2017, the respondent No.5 was required to be treated and/or considered as technically disqualified and therefore, its bid was not required to be opened. It is submitted that as per Clause 25 - disqualification clause in Important Instructions to Contractors / Tenderers, tenderer shall be disqualified and will not be taken for consideration if the EMD is not deposited in full and in the manner as specified. It is submitted that as per the terms and conditions of postqualification bid, the bidder shall submit separate EMD for each zone and accummulated amount of EMD for more than one zone shall not be taken into consideration. It is submitted that in the present case as the petitioner did not submit the full EMD before the specified date, its bid was liable to be rejected.
[4.6] It is further submitted by Shri Marshall, learned Counsel appearing on behalf of the petitioner that as per Clause 25 of Important Instructions to the Contracts / Tenderers / general terms and conditions and disqualification clause, if the tender is in a language other than the English or English translation in case of other language, such a tender shall be disqualified and need not be taken for consideration. It is submitted that in the present case the tender documents submitted by the petitioner such as the experience certificate of agreement are not in English but are in vernacular language and therefore, the bid submitted by the respondent No.5 was liable to be rejected and the respondent No.5 was liable to be declared disqualified.
Making above submissions it is requested to allow the present petition and quash and set aside the action of the respondent SMC in considering and holding the respondent No.5 as technically qualified and consequently to consider bid of the respondent No.5.
Page 7 of 24HC-NIC Page 7 of 24 Created On Mon Aug 14 02:54:26 IST 2017 C/SCA/4731/2017 CAV JUDGMENT Making above submissions and relying upon the decision of the Hon'ble Supreme Court in the case of Bakshi Security and Personnel Services Private Limited vs. Devkishan Computed Private Limited and Others reported in (2016) 8 SCC 446 it is requested to allow the present petition.
[5.0] Present petition is vehemently opposed by Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of SMC, Shri Shalin Mehta, learned Senior Advocate appearing on behalf of the respondent No.6, Shri S.P. Majmudar, learned Advocate appearing on behalf of respondent No.5 and Shri Yatin Soni, learned Advocate appearing on behalf of respondent No.4.
[6.0] Shri Kamal Trivedi, learned Counsel appearing on behalf of SMC has submitted that in the facts and circumstances of the case and considering the fact that there is substantial compliance of the terms and conditions of the tender agreements / documents, the respondent Nos.5 and 6 are rightly held to be technically qualified and therefore, their bids are rightly opened.
[6.1] Now, so far as the allegation made against respondent Nos.5 and 6 that their bids were required to be rejected and/or they were required to be declared / considered technically disqualified on the ground that the bid submitted by the Joint Ventures are not required to be considered is concerned, it is vehemently submitted by Shri Trivedi, learned Counsel appearing on behalf of SMC that as such both, respondent Nos.5 and 6 have submitted their tenders / bids in their individual capacity and not as Joint Ventures. It is further submitted that even otherwise considering the terms and conditions of the tender notice and the tender documents earlier experience as a Joint Venture cannot be said to be a disqualification. It is submitted that as per the Page 8 of 24 HC-NIC Page 8 of 24 Created On Mon Aug 14 02:54:26 IST 2017 C/SCA/4731/2017 CAV JUDGMENT Corrigendum 3, the Joint Venture shall not be considered, however experience of Joint Venture partners shall be considered for evaluation and the experience shall be calculated as per their stake value in the Joint Venture partnership. It is submitted that accordingly the experience of respondent Nos.5 and 6 have been considered for evaluation. It is submitted that it was got confirmed by the General Evaluation Committee that respondent No.5 is a proprietary firm. It is submitted that therefore when both respondent Nos.5 and 6 have submitted their bids in their individual capacity and not as Joint Ventures, their bids are rightly held to be technically qualified.
[6.2] Now, so far as the submission on behalf of the petitioner that as some of the tender documents produced along with the tender / bid are not in English language and therefore, the bids were liable to be rejected is concerned, it is submitted by Shri Trivedi, learned Counsel appearing on behalf of SMC that as such there is a difference between tender and tender documents. It is submitted that in the tender notice more particularly Clause 25 of Important Instructions to the Contractors / Tenderers - Volume II of Technical Bid, only in a case where the tender is in a language other than English or English translation in case of other language preparation then and then only the tender shall be liable to be disqualified. It is submitted that it does not provide that tender documents are required to be supplied / submitted in English or English translation. It is submitted that therefore there is a substantial compliance and therefore, the bids of the respondent Nos.5 and 6 are rightly considered.
[6.3] Now, so far as the submission on behalf of the petitioner that as respondent No.5 did not submit the full EMD on or before the specified date i.e. 21.01.2017 and therefore, as per the terms and conditions of Page 9 of 24 HC-NIC Page 9 of 24 Created On Mon Aug 14 02:54:26 IST 2017 C/SCA/4731/2017 CAV JUDGMENT the tender notice / documents, its tender was liable to be disqualified is concerned, it is submitted by Shri Trivedi, learned Counsel appearing on behalf of SMC that as such respondent No.5 Om Swachatha Corporation submitted the bids for West, SouthEast and South Zone respectively and submitted EMD amounting to (1) Rs.3,42,300/; (2) Rs.2,99,680/ and (3) Rs.2,81,530/ respectively. It is submitted and so stated in the affidavit in reply on behalf of SMC, Om Swachatha Corporation requested by its letter dated 27.01.2017 for settlement of the EMD paid for South Zone for and in respect of other two zones i.e. West Zone and SouthEast Zone. It is submitted that the Department recommended its case and referred the subject matter to Tender Evaluation Committee for further process. It is submitted that the request received from Om Swachatha Corporation for adjustment of their EMD was prior in time much prior to opening of the bid document and the Tender Evaluation Committee after examining and scrutinizing the case accorded its approval to Om Swachatha Corporation for adjusting the EMD paid in two zones i.e. West Zone and SouthEast Zone. It is submitted that thereafter the Technical Evaluation Committee qualified the respondent No.5 - Om Swachatha Corporation for two zones only i.e. West Zone and SouthEast Zone after technically evaluating the documents submitted by it. It is submitted that the same is in line with the tender process and accepted by the Tender Evaluation Committee.
[6.4] It is further submitted by Shri Trivedi, learned Counsel appearing on behalf of SMC that both, respondent Nos.5 and 6 are fulfilling the requisite eligibility criteria including the experience in Door to Door Refuse Garbage Collection and Transportation. It is submitted that respondent No.6 has submitted the bids for two zones i.e. West Zone and SouthEast Zone. As per the work completion certificate of Door to Door Refuse Garbage Collection work carried in SMC which is Page 10 of 24 HC-NIC Page 10 of 24 Created On Mon Aug 14 02:54:26 IST 2017 C/SCA/4731/2017 CAV JUDGMENT considered for qualification, the respondent No.6 is found to be technically qualified.
[6.5] It is submitted by Shri Trivedi, learned Counsel appearing on behalf of the petitioner that as there is a substantial compliance of terms and conditions by the respondent Nos.5 and 6, the Tender Evaluation Committee have rightly considered respondent Nos.5 and 6 as technically qualified and therefore, it is requested to dismiss the present petition.
[6.6] Shri Trivedi, learned Counsel appearing on behalf of SMC has relied upon the following decisions of the Hon'ble Supreme Court in support of his prayer to dismiss the present petition.
1. Poddar Steel Corporation v. Ganesh Engineering Works (1991) 3 SCC 272
2. Tejas Constructions & Infrastructure Pvt. Ltd. vs. Municipal Council, Sendhwa & Anr.
(2012) 6 SCC 464
3. Jal Mahal Resorts Private Limited vs. K.P. Sharma and Ors. (2014) 8 SCC 804
4. Bakshi Security and Personnel Services Private Limited vs. Devkishan Computed Private Limited and Others (2016) 8 SCC 446 [6.7] It is further submitted by Shri Trivedi, learned Counsel appearing on behalf of SMC that as such bids are not finalized and a final decision is yet to be taken which could not be taken because of the adinterim relief granted by this Court in other proceedings.
Making above submissions and relying upon above decisions it is requested to dismiss the present petition.
[7.0] Present petition is also opposed by Shri Shalin Mehta, learned Page 11 of 24 HC-NIC Page 11 of 24 Created On Mon Aug 14 02:54:26 IST 2017 C/SCA/4731/2017 CAV JUDGMENT Counsel appearing on behalf of respondent No.6.
[7.1] It is vehemently submitted by Shri Mehta, learned Counsel appearing on behalf of respondent No.6 that as such there are no allegations and/or averments in the petition against the respondent No.6 that as the respondent No.6 is a Joint Venture, its bid is liable to be rejected. It is submitted that therefore in absence of any such pleadings in the petition no such oral submissions can be permitted to be made.
[7.2] It is submitted that even otherwise the bids submitted by the respondent No.6 is in its individual capacity and not as a Joint Venture. It is submitted that its past experience as a Joint Venture is required to be considered as submitted by Shri Trivedi, learned Counsel appearing for SMC. It is further submitted by Shri Mehta, learned Counsel appearing on behalf of respondent No.6 that considering the work completion certificates issued by the Bombay Municipal Corporation and SMC, it cannot be said that the respondent No.6 is not having any experience in the field of Door to Door Refuse Garbage Collection and Transportation. It is submitted that so far as the work completion certificate issued by the Tender Evaluation Committee is concerned, respodnent No.6 is having requisite experience in the field of Door to Door Refuse Garbage Collection and Transportation.
[7.3] Now, so far as the tender documents not in English and submission made by the learned Counsel appearing on behalf of the petitioner that therefore their bids were liable to be rejected is concerned, Shri Mehta, learned Counsel appearing on behalf of respondent No.6 has adopted the submissions made by Shri Trivedi, learned Counsel appearing on behalf of SMC.
Making above submissions it is requested to dismiss the present petition.
Page 12 of 24HC-NIC Page 12 of 24 Created On Mon Aug 14 02:54:26 IST 2017 C/SCA/4731/2017 CAV JUDGMENT [8.0] Present petition is also opposed by Shri S.P. Majmudar, learned Advocate appearing on behalf of respondent No.5. It is submitted by Shri Majmudar, learned Advocate appearing on behalf of respondent No.5 that as such respondent No.5 Om Swachatha Corporation submitted the bids for West, SouthEast and South Zone respectively and submitted EMD amounting to (1) Rs.3,42,300/; (2) Rs.2,99,680/ and (3) Rs.2,81,530/ respectively. It is submitted and so stated in the affidavit in reply on behalf of SMC, Om Swachatha Corporation requested by its letter dated 27.01.2017 for settlement of the EMD paid for South Zone for and in respect of other two zones i.e. West Zone and SouthEast Zone. It is submitted that the Department recommended its case and referred the subject matter to Tender Evaluation Committee for further process. It is submitted that the request received from Om Swachatha Corporation for adjustment of their EMD was prior in time much prior to opening of the bid document and the Tender Evaluation Committee after examining and scrutinizing the case accorded its approval to Om Swachatha Corporation for adjusting the EMD paid in two zones i.e. West Zone and SouthEast Zone. It is submitted that thereafter the Technical Evaluation Committee qualified the respondent No.5 - Om Swachatha Corporation for two zones only i.e. West Zone and South East Zone after technically evaluating the documents submitted by it. It is submitted that the same is in line with the tender process and accepted by the Tender Evaluation Committee.
[8.1] It is submitted that there was a bonafide error on the part of the respondent No.5 in not submitting the EMD of the full amount and the respondent No.5 submitted the EMD of the amount as per the original tender notice but not as per the corrigendum by which the amount of EMD was increased. It is submitted that therefore as there was a bonafide error, the respondent No.5 requested to adjust their EMD with Page 13 of 24 HC-NIC Page 13 of 24 Created On Mon Aug 14 02:54:26 IST 2017 C/SCA/4731/2017 CAV JUDGMENT respect to South Zone for and in respect of other two zones i.e. West Zone and SouthEast Zone, which has rightly been accepted by the Tender Evaluation Committee / SMC. It is submitted that therefore when there is a substantial compliance of the terms and conditions of the tender notice as per the tender notice documents, the respondent No.5 is rightly held to be technically qualified. On other submissions made by Shri Marshall, learned Counsel appearing on behalf of the petitioner, Shri Majmudar, learned Advocate appearing for respondent No.5 has adopted the submissions made by Shri Trivedi, learned Counsel appearing on behalf of SMC.
Making above submissions it is requested to dismiss the present petition.
[9.0] In rejoinder to the submissions made by Shri Trivedi, learned Counsel appearing for SMC and Shri Majmudar, learned Advocate appearing for respondent No.5, Shri Marshall, learned Counsel appearing on behalf of the petitioner has vehemently submitted that nonsubmission of the EMD of full amount before the specified date mentioned in the tender notice / corrigendum can be said to be non compliance of the important terms and conditions. It is submitted that submitting and/or adjusting the EMD submitted in respect to one zone, subsequently and after the specified date, cannot be said to be substantial compliance of the terms and conditions. It is submitted that as such the action of the respondent Corporation in accepting the requesting made by respondent No.5 to adjust the EMD of South Zone with respect to other two zones i.e. West Zone and SouthEast Zone, that itself is absolutely illegal, arbitrary and nothing but to favour the respondent No.5. It is submitted that as such for each bid there shall be a separate EMD and that too they were required to be submitted on or before the specified date mentioned in the tender notice / corrigendum Page 14 of 24 HC-NIC Page 14 of 24 Created On Mon Aug 14 02:54:26 IST 2017 C/SCA/4731/2017 CAV JUDGMENT i.e. 21.01.2017. It is submitted that even the request was made to adjust EMD of South Zone with respect to other zones was made after 7 days of the specified date to submit the EMD. It is submitted that even such a request to adjust their EMD of South Zone in case of other zones was not made before the specified date.
[9.1] It is further submitted by Shri Marshall, learned Counsel appearing on behalf of the petitioner that even otherwise adjustment of EMD in case of one zone with respect to the EMD of other zones is not permissible. It is submitted that as such as per the terms and conditions of the Volume II of the technical bid (Clause 16 - withdrawal of tenders) even during the tender validity period, the tenderer withdraw its tender, the tender security / earnest money shall be forfeited. It is submitted that therefore even if the respondent No.5 withdrew its bid for South Zone in that case also the said EMD stands forfeited and in that case there was no amount of EMD available for adjustment. It is submitted that therefore the action of the respondent SMC in considering the bid as technically qualified and considering the bid of respondent No.5 is absolutely illegal and arbitrary which deserves to be quashed and set aside.
[10.0] Heard learned Counsel appearing for respective parties at length.
At the outset it is required to be noted that in the present petition the petitioner has prayed for an appropriate writ, direction and order to quash and set aside the action of SMC in considering the bids submitted by respondent Nos.5 and 6 as qualified.
At the outset it is required to be noted that as such even according to the petitioner also the petitioner is found to be L3, respondent No.5 is found to be L2 and respondent No.6 is found to be L1. Even as per Page 15 of 24 HC-NIC Page 15 of 24 Created On Mon Aug 14 02:54:26 IST 2017 C/SCA/4731/2017 CAV JUDGMENT the petitioner, respondent No.6 has offered Rs.1089 per Metric Ton, respondent No.5 has submitted the offer for Rs.1169 per Metric Ton and the petitioner has submitted the bid / offer for Rs.1175 per Metric Ton. As per the tender notice, the requirement is minimum 125 Metric Ton per day. The contract is for 5 years. Therefore, the offer submitted by respondent No.6 as such is much much lower than the offer submitted by the petitioner. There shall be a difference of approximately Rs.1,96,00,000/ between the offer submitted by the respondent No.6 and the offer submitted by the petitioner. However, it is the case on behalf of the petitioner that if the bids of respondent Nos.5 and 6 are considered as technically disqualified / disqualified and both of them are held to be ineligible in that case the offer submitted by the petitioner is required to be considered as L1.
[10.1] It is the case on behalf of the petitioner that as the respondent Nos.5 and 6 are having the experience as Joint Venture and/or they are Joint Ventures and therefore, as per the terms and conditions of the tender notice, their bids were required to be disqualified. The aforesaid has no substance. At the outset it is required to be noted that as such respondent Nos.5 and 6 have submitted their bids in their individual capacity and not as Joint Ventures. They have submitted the work completion certificates and have shown their past experience as Joint Ventures. As per the terms and conditions of the tender notice, only the bid submitted by the Joint Ventures shall not be considered. Even as per the clarification in the Addenda and Corrigendum and not to the bidder, Joint Venture shall not be considered. However, experience of Joint Venture partners shall be considered for evaluation and experience shall be calculated as per their stake value in Joint Venture partnership. Therefore, the experience of the respondent Nos.5 and 6 as Joint Ventures is required to be Page 16 of 24 HC-NIC Page 16 of 24 Created On Mon Aug 14 02:54:26 IST 2017 C/SCA/4731/2017 CAV JUDGMENT considered accordingly and has been considered accordingly.
[10.2] At this stage it is required to be noted that as such there are no averments / pleadings in the petition that the respondent No.6 is a Joint Venture and therefore, its bid was liable to be disqualified. So far as the respondent No.5 is concerned, it is categorically mentioned in the affidavit in reply filed by the SMC that they got verified from the Ahmedabad Municipal Corporation that respondent No.5 is a proprietary firm. Under the circumstances, the submission on behalf of the petitioner that as Joint Ventures, the bids of respondent Nos.5 and 6 are required to be declared disqualified, cannot be accepted.
[10.3] Now, so far as the submission on behalf of the petitioner that as some of the tender documents produced alongwith the tender submitted by respondent Nos.5 and 6 were not in English and therefore, their bids are liable to be disqualified is concerned, it is required to be noted that as per the requirement in the tender notice, only tender is required to be submitted in English and/or English translation. There is no such requirement to submit the tender documents and/or the documents alongwith the tender in English. The aforesaid is uniformally followed and/or complied by SMC with respect to all the bidders. It cannot be disputed that there is a distinction and difference between tender and the documents (documents produced alongwith the tender). Therefore, the submission on behalf of the petitioner that as some of the documents / agreements / work orders submitted by the respondent Nos.5 and 6 alongwith the tender were not in English and therefore, their bids were liable to be disqualified is concerned, the same has no substance and cannot be accepted.
[10.4] Now, so far as the submission on behalf of the petitioner that considering the work completion certificates produced by Page 17 of 24 HC-NIC Page 17 of 24 Created On Mon Aug 14 02:54:26 IST 2017 C/SCA/4731/2017 CAV JUDGMENT respondent No.6, it cannot be said that the respondent No.6 is having the requisite eligibility criteria / experience in Door to Door Refuse Garbage Collection and Transportation is concerned, from the work completion certificate issued by SMC, it can safely be said that the respondent No.6 is fulfilling the requisite eligibility criteria of Door to Door Refuse Garbage Collection and Transportation. As per the affidavit in reply filed on behalf of SMC, the work completion certificate issued by SMC for the work carried out by respondent No.6 of Door to Door Refuse Garbage Collection and Transportation has been considered. It is also required to be noted that even from the work completion certificate issued by the Municipal Corporation of Greater Bombay and the contract agreement, it appears that the respondent No.6 completed the contract for the work of "Hire of vehicle for collection of municipal solid waster inlcuding the materials removed from the slums". As per the definition of "Door to Door Garbage Collection" mentioned in the tender notice, collection of solid waste / garbage from slums also can be said to be "door to door collection". Under the circumstances, the submission on behalf of the petitioner that respondent No.6 was not fulfilling the requisite eligibility criteria and/or was not having the experience in Door to Door Refuse Garbage Collection and therefore, its bid was liable to be disqualified, cannot be accepted.
[10.5] However, at the same time the petitioner is justified in making the grievance that as the respondent No.5 herein - Om Swachatha Corporation did not fulfill and/or comply with the essential condition of not submitting the full EMD before the specified date i.e. before 21.01.2017 and therefore, its bid was liable to be technically disqualified. It is an admitted position that by 3rd Corrigendum dated 22.12.2016 not only the time to submit the EMD in electronic form through onlien and physical form was extended to 30.12.2016 and Page 18 of 24 HC-NIC Page 18 of 24 Created On Mon Aug 14 02:54:26 IST 2017 C/SCA/4731/2017 CAV JUDGMENT 04.01.2017 respectively. Even by the said corrigendum the EMD amount also came to be revised for the respective zones, including West Zone, SouthEast Zone and South Zone as under:
(i) West Zone Rs.3,42,300/ to Rs.3,70,580/
(ii) SouthEast Zone Rs.2,99,680/ to Rs.3,26,740/
(iii) South Zone Rs.2,81,530/ to Rs.3,04,750/
[10.6] That by the 4th Corrigendum dated 28.12.2016, the dates
were further extended for submission of EMD in electronic form through online and in physical form to 16.01.2017 and 21.01.2017 respectively. Under the circumstances, as such the last date to submit the EMD of the amount as stated hereinabove (revised) in physical form was 21.01.2017. It is an admitted position that Om Swachatha Corporation bidded for three zones i.e. West Zone, SouthEast Zone and South Zone. It is also an admitted position that the respondent No.5 - Om Swachatha Corporation submitted EMD of Rs.3,42,300/, Rs.2,99,680/ and Rs.2,81,530/ respectively. As observed hereinabove, for West Zone, the EMD of Rs.3,70,580/ was required to be submitted for West Zone; EMD of Rs.3,26,740/ was required to be submitted for SouthEast Zone and the EMD of Rs.3,04,750/ was required to be submitted for South Zone. Thus, when the respondent No.5 submitted the EMDs, the EMDs were not of full amount. Therefore, considering the terms and conditions of the tender agreement / general terms and conditions more particularly Clause 25 of Volume II of Technical Bid (Disqualification Clause), a tender shall be disqualified and will not be taken for consideration if the earnest money deposit is not deposited in full and in the manner as specified. As per the terms and conditions the bidder was required to submit separate EMD for each zone. However, despite the above, respondent No.5 is not considered technically disqualified. The reason given by the respondent SMC in its affidavit in reply (Para 21) and also Page 19 of 24 HC-NIC Page 19 of 24 Created On Mon Aug 14 02:54:26 IST 2017 C/SCA/4731/2017 CAV JUDGMENT by the respondent No.5 in its affidavit in reply is that subsequently i.e. by letter dated 27.01.2017, respondent No.5 - Om Swachatha Corporation requested for settlement of EMD paid for South Zone for and in respect of other two zones i.e. West Zone and SouthEast Zone. That by the said letter the respondent No.5 - Om Swachatha Corporation submitted that its bid for South Zone be treated to have been withdrawn and the EMD deposit for South Zone be adjusted against the EMD to be deposited for West Zone and SouthEast Zone. It appears that same came to be accepted and consequently after adjusting the EMD submitted for South Zone and in respect of other two Zones i.e. West Zone and SouthEast Zone, the respondent No.5 is held eligible and/or technically qualified. The aforesaid is absolutely illegal and contrary to the terms and conditions of the tender notice etc. more particularly clauses referred to hereinabove. Firstly, such an adjustment of EMD submitted for one zone could not have been adjusted against the EMD of other zones. As observed hereinabove, for each zone a bidder was reuqired to submit different EMDs. Consequently, such adjustment is not permissible at all. Such adjustment as per terms and conditions of the general notice is not permissible. There is no provision to adjust EMD paid / submitted for one zone against EMD of other zones and that too after permitting the bidder to withdraw from one zone. Thirdly, such a request of adjustment was after 21.01.2017 more particularly on 27.01.2017 by which the last date to submit the EMD of full amount had gone. As observed hereinabove, the last date for submitting the EMD of full amount in physical form was 21.01.2017. As observed hereinabove and as per the terms and conditions of the tender notice and other PartI and PartII more particularly Clause 25 of Volume II of technical bid (disqualification) a tender shall be disqualified and will not be taken for consideration if the earnest money deposit is not deposited in full and in the manner as specified. Fourthly, as per Clause 16 of Volume II of Page 20 of 24 HC-NIC Page 20 of 24 Created On Mon Aug 14 02:54:26 IST 2017 C/SCA/4731/2017 CAV JUDGMENT technical bid, during the tender validity period if tenderer withdraw his tender, tender security / earnest money shall be forfeited. Therefore, on withdrawal of the tender / bid for South Zone even the earnest money deposit of South Zone was liable to be forfeited.
[10.7] Considering the aforesaid facts and circumstances, condition of depositing the EMD of full amount before the specified date as mentioned in the tender notice / corrigendum can be said to be essential condition, noncompliance of the same shall render the bid submitted by such bidder technically disqualified. Relying upon the decisions of the Hon'ble Supreme Court referred to hereinabove, learned Counsel appearing on behalf of the Corporation and the respondent No.5 have submitted that as there was a substantial compliance of the condition of deposit of EMD the bid submitted by the respondent No.5 was not required to be declared technically disqualified is concerned, the aforesaid cannot be accepted. Firstly, the terms and conditions of the deposit of EMD of full amount before the specified date can be said to be essential condition and the same is required to be complied with strictly. Nondeposit of the full amount of EMD before the specified date and subsequently submitting the EMD of the balance amount even by adjustment of EMD of other zone cannot be said to be substantial compliance.
[10.8] Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Poddar Steel Corporation Ltd. by Shri Trivedi, learned Counsel appearing on behalf of the SMC is concerned, on considering the facts in the said case, we are of the opinion that the said decision shall not be applicable to the facts of the case on hand. In the said case the Hon'ble Supreme Court specifically found that there was a sufficient compliance of the terms and conditions.
Page 21 of 24HC-NIC Page 21 of 24 Created On Mon Aug 14 02:54:26 IST 2017 C/SCA/4731/2017 CAV JUDGMENT As per the terms of the tender notice the tender was required to be accompanied by earnest money by cheque of the State Bank. Instead the tender was submitted accompanied by the cheque of Union Bank of India and therefore, the bid was canceled and to that the Hon'ble Supreme Court observed that it can be said to be a substantial compliance of the terms and conditions. Therefore, the aforesaid decision shall not be applicable to the facts of the case on hand.
[10.9] Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Tejas Constructions & Infrastructure Pvt. Ltd. (Supra) by the learned Counsel appearing on behalf of SMC is concerned, on considering the same we are of the opinion that the said decision also shall not be applicable to the facts of the case on hand. In the said decision also the documents submitted by the bidder were found to be substantial compliance and on facts it was held that the said bidder was not ineligible or can be said to have committed deliberated default in producing the requisite documents to establish its eligibility to offer the bid. Similarly, on facts the decision of the Hon'ble Supreme Court in the case of Bakshi Security and Personnel Services Private Limited (Supra) also shall not be applicable to the facts of the case on hand. On the contrary the said decision may help the petitioner. In para 14, after considering the decision of the Hon'ble Supreme Court in the case of Poddar Steel Corporation Ltd. (Supra) and in the case of B.S.N. Joshi and Sons Ltd. v. Nair Coal Services Ltd. and Another reported in (2006)11 SCC 548, it is specifically observed and held by the Hon'ble Supreme Court that the essential condition of a tender has to be strictly complied with. It is further observed that if there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for the parties to comply with all such conditions fully.
Page 22 of 24HC-NIC Page 22 of 24 Created On Mon Aug 14 02:54:26 IST 2017 C/SCA/4731/2017 CAV JUDGMENT [11.0] In view of the above and for the reasons stated above, the impugned action of the respondent SMC in considering the bid submitted by respondent No.5 as technically qualified and thereby to consider its offer on merits cannot be sustained and the same deserves to be quashed and set aside.
[12.0] However, even after quashing and setting aside the impugned action of the respondent SMC in considering the bid submitted by the respondent No.5 as technically qualified and thereby to consider the bid submitted by the respondent No.5 on merits, in that case also, the petitioner shall not be entitled to any relief directing the respondent Corporation to consider and accept the price bid submitted by the petitioner as even according to the petitioner, respondent No.6 - Western Imaginary Transcon Pvt. Ltd. is held to be L1 and the petitioner is found to be L3. Even if the bid submitted by the respondent No.5, who is found to be L2, is excluded, in that case also, being L3 (L2) still the respondent No.6 shall be L1. As observed hereinabove, the action of the respondent - Surat Municipal Corporation in considering the bid submitted by the respondent No.6 on merits after holding it as technically qualified is just and proper and legal. As observed hereinabove, in the bid submitted by the respondent No.6, the respondent No.6 had offered Rs.1089 per Metric Ton and while submitting the bid the petitioner had offered Rs.1175 per Metric Ton. As per the SMC, per day the minimum quantity would be 125 Metric Ton per day. Therefore, the offer submitted by the respondent No.6 can be said to be of Rs.1,36,125/ per day and so far as the petitioner is concerned, it is Rs.1,46,875/ per day. The contract is of 5 years. Therefore, it can be said that there has been difference of approximately Rs.1,96,00,000/ between the offer submitted by the respondent No.6 and the offer submitted by the petitioner. Therefore, if the bid submitted Page 23 of 24 HC-NIC Page 23 of 24 Created On Mon Aug 14 02:54:26 IST 2017 C/SCA/4731/2017 CAV JUDGMENT by the petitioner is accepted, in that case, there would be a loss of Rs.1,96,00,000/ to the public exchequer.
[13.0] In view of the above and for the reasons stated above, petition succeeds in part. Impugned action of the respondent - Surat Municipal Corporation in considering the bid submitted by the respondent No.5 as technically qualified and consequently to consider the bid submitted by the respondent No.5 is hereby quashed and set aside. Impugned action of the respondent - Surat Municipal Corporation in considering the bid submitted by the respondent No.6 as technically qualified and thereby to consider the bid submitted by the respondent No.6 on merits is hereby confirmed. The prayer made by the petitioner to consider the bid of the petitioner and to award the contract to the petitioner is hereby rejected. Therefore, the present petition qua relief in terms of para 2 of the prayer clause is hereby allowed. However, the present petition qua prayer in terms of paras 1 and 3 of the prayer clause is hereby rejected. Rule is made absolute to the aforesaid extent only qua prayer in terms of para 2 of the prayer clause and the Rule is discharged qua prayer in terms of paras 1 and 3 of prayer clause. No costs.
Sd/ (M.R. SHAH, J.) Sd/ (B.N. KARIA, J.) Ajay Page 24 of 24 HC-NIC Page 24 of 24 Created On Mon Aug 14 02:54:26 IST 2017