Punjab-Haryana High Court
Utsav Safety Systems Pvt. Ltd vs State Of Haryana And Others on 30 November, 2011
Author: G.S.Sandhawalia
Bench: Hemant Gupta, G.S.Sandhawalia
Civil Writ Petition No.18725 of 2011 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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Civil Writ Petition No.18725 of 2011
Date of decision: 30.11.2011
Utsav Safety Systems Pvt. Ltd.
...Petitioner
Versus
State of Haryana and others
...Respondents
CORAM: HON'BLE MR.JUSTICE HEMANT GUPTA
HON'BLE MR.JUSTICE G.S.SANDHAWALIA
1. Whether Reporters of local papers may be allowed to see the judgment?
2. Whether to be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
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Present: Mr. Puneet Bali, Advocate for the petitioner.
Mr. Vinod S.Bhardwaj, Addl. Advocate General, Haryana with
Mr. Narender Singh, Deputy Advocate General, Haryana
for respondents no.1 and 2.
Mr. Ashish Chopra, Advocate for respondent No.3.
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G.S.SANDHAWALIA, J.
1. The petitioner in the present case has approached this Court seeking a writ in the nature of mandmaus directing the official respondents not to issue a letter of intent in favour of respondent no.3 for the project of High Security Registration Plates (for short "HSRP") in Haryana and for declaration in the Civil Writ Petition No.18725 of 2011 -2- *** nature of Certiorari against respondent no.3 being declared as L- 1 and further writ in the nature of mandamus directing the respondent to award the said tender in favour of the petitioner and issue a letter of intent in its favour.
2. The case of the petitioner is that it as a lead member of consortium had given the bid for the project of HSRP in Haryana in pursuance of the application invited from interested parties by respondents No.1 and 2. The last date of submission of bids form was 21.7.2007 and the petitioner had submitted its tender on 5.7.2007 and was declared successful in the pre- qualification bid along with other parties. Even in the technical bids which were opened on 11.8.2011, the petitioner and respondent no.3 along with six others were found eligible and declared successful and accordingly, on 14.9.2011, the financial bids were opened and respondent no.3 was declared as L-1 in utter contravention and disregard to the mandatory conditions of the tender document issued by the official respondents.
3. In brief, the case of the petitioner was that the financial bid was to be submitted in two forms i.e. Financial Bid Form I and Financial Bid Form II and as per clause 2.9.2 which was also amended, the bidder was to fill the rates and prices both in figures and words in financial bid. Both the original clause and amended clause read as follows:-
Civil Writ Petition No.18725 of 2011 -3-
*** Original Clause Amended Clause The bidder shall fill in rates and The Bidder shall fill in prices both in figures and rates and prices both in words in Financial bid. The figures and words in bidder shall quote rates in Financial bid. The bidder Financial Bid Form I for supply shall quote rates in and fixing complete set of Financial Bid Form I for Registration Plates, including supply and fixing complete 3rd Registration Plate (where set of Registration Plates, required) and snap lock, for including 3rd Registration each category of vehicles. Item Plate (where required) and wise details of rates shall be snap lock, for each given in Financial Bid Form-II category of vehicles. Item for the purpose of Individual wise details of rates shall Registration plate. The sum be given in Financial Bid total of Financial Bid Form-II Form-II for the purpose of should not be more than the meeting with the piece- rate quoted Form-I. meal requirement of The rates quoted by the Bidder Individual Registration shall be fixed and which can be plate. The sum total of charged from a vehicle owner different items of a for each category of vehicles complete set of and shall be inclusive of all Registration Plate in duties and taxes except the Financial Bid Form-II local taxes, VAT etc. which should not be more than may be charged extra, as the rate quoted in Form-I applicable in the State. for a complete set for different categories of vehicles.
The bidder shall quote the base price of the HSRP and all the taxes, duties and levies separately.
4. Thus the case of the petitioner is that the sum total of Civil Writ Petition No.18725 of 2011 -4- *** different items of the complete set of registration plate in Financial Bid Form II should not be more than the rate quoted in Financial Bid Form I for a complete set for different categories of vehicles and that respondent no.3 had violated this condition in the financial bid and, therefore, could not have been declared as L-1. Against this violation, the petitioner had represented on 20.9.2011 and prayed that declaration of respondent no.3 as a successful bidder was not correct and it was liable to be declared as a successful bidder for L-1. On not getting any response from the official respondents, the petitioner approached this Court and placed Annexures P-4 and P-5 on the record, which is the comparative chart of respondent No.3 and the petitioner in Financial Bid Form I and in Financial Bid Form II to show that there was a violation of the clause on the basis of which the State and the private respondent were called upon to file their replies.
5. The respondent-State has filed a detailed reply giving the background of the tender proceedings and submitted that 9 bidders who had submitted the bids had qualified at the pre- qualification stage but in the technical evaluation one bidder was not found to be qualified and eventually 8 bidders were left in the race. It was the case of the State that the State Government was to select a bidder for supplying and fixing HSRP on the vehicles in the State and a Committee was constituted by the State Government under the chairmanship of the Transport Commissioner with the Director Supplies and Disposal, Additional Civil Writ Petition No.18725 of 2011 -5- *** Transport Commissioner, Joint State Transport Controller (Tech.) and Sh.A.P. Bahadur, ADB, PPP Expert as members to evaluate the bids. That aluminum plates of four different sizes are to be supplied by the selected bidders with one sticker and one pair of snap locks and the lowest bidder has to be selected on the basis of sum total of weighted rates arrived at after multiplying the prices quoted for different types of vehicles with weights i.e. Approximate percentage of vehicles registered during 2009-10 attached to these categories. It was the further case of the State that at the time of opening of the Financial Bids on 14.9.2011, the bidders themselves apprised the Evaluation Committee that the taxes/duties mentioned in Form-I by different bidders may vary and the amount of taxes/duties mentioned by the bidders in their bids may not be supported with documents and, therefore, their correctness may be questioned. The bidders stated that the base price including excise duty may be considered for calculation of the sum total amount to give equal and fair opportunity to all the bidders instead of the price including all taxes/duties. Keeping in view this request, the Committee decided to evaluate the bids on the basis of base price plus excise duty. It was further pleaded by the State that on opening of the financial bids it was found that some of the bidders had not filled up Financial Bid Form I and Financial Bid Form II properly and there were minor deviations and as per the request for proposal document, the bidders were required to mention the price of Civil Writ Petition No.18725 of 2011 -6- *** complete set of registration plates/items for four different categories of vehicles, namely, two wheelers, three wheelers, Light Motor Vehicles/Passenger Cars and Medium/Heavy Commercial Vehicles showing the base price and all the taxes/duties separately. The prices quoted for the individual plates/items in Financial Bid Form II, when added, were to match with the price of the complete set mentioned in the Financial Bid Form I. The purpose of obtaining the bids in Financial Bid Form I was to select the lowest bidder, based on the prices of the complete set of registration plates/items quoted by the bidders and the weights (approximately percentage of vehicles registered during 2009-10) attached to the four different categories of vehicles. The rates to be charged from vehicle owners was, thus, to be arrived at based on the individual plates/items supplied to them.
6. The State in its reply has further clarified that while evaluating the financial bids, it was noticed that respondent no.3 had quoted Rs.214.00 per piece for the plate size of 340 X 200 mm in form II, whereas in form I the price of complete set of plates including the third plate sticker and snap lock had been quoted as Rs.298.53 in respect of category IV vehicles i.e. Medium/Heavy Commercial Vehicles. In Form-II, the said bidder had mentioned the prices inclusive of all taxes/duties whereas in the relevant column of the Form it had been written that the prices was inclusive of excise duty and exclusive of VAT and Civil Writ Petition No.18725 of 2011 -7- *** service tax and after taking into consideration even with taking the higher price quoted in Form-II, the sum total of respondent no.3 on the basis of base price + taxes/duties also showed that respondent no.3 was the lowest bidder. After applying the formula as laid down in Annexure Y of the tender document, the sum total of price of respondent no.3 came to Rs.18415.84, whereas the sum total price of the petitioner came to Rs.26206.60 when calculated on the basis of base price + excise duty. Even while calculating the higher price for plate size 340 X 200 mm, the sum total in case of respondent no.3 was Rs.19812.34. Similarly, the sum total price in respect of respondent no.3 when calculated on the basis of base price + all taxes/duties came to Rs.22311.65, whereas in case of petitioner it came to Rs.29482.43. While taking into consideration the higher price of Rs.214/- for the plate size 340 X 200 mm, the sum total price in case of respondent no.3 again came to Rs.23940.12 and, thus, it was pleaded that respondent no.3 had rightly been declared as L-1 and there was substantial difference between the petitioner who was L-1 and the minor deviations in filling up the financial bids have no material effect. It was also pleaded that clarification had been sought from respondent no.3 regarding price of one plate for medium/heavy commercial vehicles and the said bidder had clarified that the complete plate set would work out at Rs.457.25 in respect of 4th category. In the written statement, the table was also prepared by the State Civil Writ Petition No.18725 of 2011 -8- *** to show the difference in the rates between the petitioner and respondent no.3 and the percentage of the difference which varied from 10.47% to 85.23% and it was stressed that it was the public which was to pay for these registration plates, therefore, it was the duty of the State to select such a bidder who supplies the registration plates to the public at the lowest possible price. Reference was also made to the direction passed by the Hon'ble Apex Court in IA No.10 in Writ Petition (Civil) No.510 of 2005, whereby Government of Haryana had been directed to implement the scheme of the High Security Registration Plates within eight weeks from the date of order i.e. 13.10.2011.
7. In the written statement filed by respondent no.3, stress was laid upon the consent taken by all the eight successful bidders who had crossed the hurdle of the technical bid wherein they had agreed that the weighted price should be calculated on the basis of base price which will include excise duty. It was also mentioned that under Form I, the first category of vehicles two wheelers were mentioned but scooter and motor cycle had number plate of different dimensions. Stress was also laid that Form II did not even form part of the evaluation of the commercial bid criteria for award of contract and that it would have no bearing on the final award of contract since it has been agreed by all the qualified bidders before opening of the financial bids.
Civil Writ Petition No.18725 of 2011 -9-
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8. Replication was also filed to the written statement wherein it was alleged that since there was violation of Clause 2.9.2, the respondent no.3 could not have been declared as L-1 and that he has unfairly been given a chance to reconcile the price and had the petitioner been given similar opportunity it could have also reduced the price.
9. Learned counsel for the petitioner has stressed vehemently since there was a violation of Clause 2.9.2 and as per Clause 2.8.1, the rates to be offered in the financial bid shall be without any assumption and without any condition, qualification or reservation or any variation, both in respect of form and content. Similarly under Clause 2.18.1 price given in the bid form was not to be revealed and if there was a price change due to technical clarification then as per Clause 2.18.2 in such eventuality revised financial bid from all the qualified bidders in separate sealed cover was to be accepted and no modification was permissible as per Clause 2.19.1. The correction of errors was permissible under Clause 2.27.1 but this was only for arithmetic errors and where there was a discrepancy between the amount in figures and in words, the amount in words will govern. The counsel for petitioner also stressed that since there was an admission in the written statement itself that there were deviations in the bid Form I and Form II, therefore, in view of the above Clauses, respondent no.3 could not have been declared as L-1 and his bid was liable to be rejected straightway. In support Civil Writ Petition No.18725 of 2011 -10- *** of his submissions, the petitioner relied upon Ramana Dayaram Shetty Vs. International Airport Authority of India and others (1979) 3 Supreme Court Cases 489, Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation and others (2000) 5 Supreme Court Cases 287, W.B. State Electricity Board Vs. Patel Engineering Co. Ltd. and others (2001) 2 Supreme Court Cases 451, B.S.N. Joshi and sons Ltd. Vs. Nair Coal Services Ltd. and others (2006) 11 Supreme Court Cases 548, Reliance Energy Ltd. and another Vs. Maharashtra State Road Development Corporation Ltd. and others (2007) 8 Supreme Court Cases 1, Siemens Public Communication Networks Private Limited and another Vs. Union of India and others (2008) 16 Supreme Court Cases 215 and Larsen and Toubro Limited and another Vs. Union of India and others (2011) 5 Supreme Court Cases 430. The stress on the change of rules after game had begun and its impermissibility was sought to be driven home by placing reliance upon the judgments quoted above and by arguing that once the stage of financial bids had been reached then if there was any essential condition in the terms of the tender, the same had to be adhered to. It was argued that sum total of the Form II rates could not be more than the rate quoted in Form I for complete set of number plates in different categories of vehicles, therefore, once there was such a difference, the State had no option but to Civil Writ Petition No.18725 of 2011 -11- *** reject the bid of respondent no.3.
10. The State in defence argued that Clause 2.1 was the evaluation process and each bidder had to qualify each stage according to the tender condition to be eligible for evaluation in the next stage and there was a right to seek clarification if required from the bidder while evaluating their bids. It is also argued that a preliminary examination of the bids and determination of responsiveness under Clause 2.26.2 had to be undertaken by the Government and if a bid was not substantially responsive, it was liable to be rejected. Under Clause 2.30, the decision to award contract by the High Power Purchase Committee was to be determined by a substantially responsive bidder to the bid document and having been found eligible for opening of the bid price and criteria for evaluation of the offer received was to be on the basis of lowest sum total of the weighted rate received in the financial bid form calculated by multiplying the weight attached + base price per vehicle and the sum total in Column No.6 was to be considered and stress was laid on the calculation sheet Annexure R-1 wherein a table has been prepared by taking into consideration the price offered by the bidders which has been multiplied with weight attached and the total of the said has been correspondingly matched to declare respondent no.3 as the successful bidder.
11. After hearing rival submissions, we are of the opinion that the present writ petition is liable to be dismissed in view of Civil Writ Petition No.18725 of 2011 -12- *** the peculiar facts and circumstances of the case. The present tender process had been long delayed though the Government of India had issued notification dated 16.10.2001 to introduce the High Security Registration Plates in India for all types of motor vehicles in the States. The Hon'ble Apex Court in Civil Writ Petition (Civil ) No.510 of 2005 vide order dated 13.10.2011 has noticed that the States are not implementing the said scheme which had been introduced keeping in view the safety and security of the citizens and detailed order has been passed on 30.8.2011 whereby the defaulting States have been classified into different categories. Last category was of the States which had been persisting defaulters and had not taken any effective steps to comply with the direction of the Apex Court. Accordingly, the Secretary of Transport and the Commissioner, State Transport Authority of the State of Haryana had been issued notices as why for 7 long years, the State of Haryana had taken no steps to comply with the statutory scheme under the provisions of Rule 50 of the Central Motor Vehicles Rules,1989. In pursuance of the said notices, it was held that the State officials have been guilty of willful disobedience and non compliance of the orders of this Court and exemplary costs had been imposed on them and the State Government had been directed to positively comply with the order and implement the scheme within 8 weeks from the date of order i.e. 13.10.2011. Thus, it would be clear that the State of Haryana was Civil Writ Petition No.18725 of 2011 -13- *** implementing the direction of the Hon'ble Supreme Court and had invited the tenders in pursuance of the said direction.
12. A perusal of the tender document would go to show that the annual registration of all classes of new motor vehicles in the State of Haryana had come to a figure of 4.68 lacs (based on approximation) for the year 2009-10 as per Annexure XV of the bid document as per statistical data. As per terms and conditions in Section 4, the said contract is to be for a period of 10 years. As per the tender notice three sets of plates have to be supplied which include one sticker which is to be affixed on the wind screen and which is not applicable to the two wheelers. The said plates were to be accompanied with snap locks and in Column No.3, the weight was attached, which was based on the number of vehicles which were being registered. Accordingly, the maximum weight i.e. 63.95 has been given to scooters, motor- cycles and mopeds as their grand total sale during the year 2009-10 was 2,99,458, correspondingly the weight attached to the three wheelers is only 2.22 as only 10,393 three wheelers were registered in the year 2009-10 whereas weight attached to Light Motor Vehicle/Passenger Cars is 23.57 as 1,10,356 cars were registered. The weight attached to medium commercial vehicles and heavy commercial vehicles was 10.26 as 48,048 vehicles were registered. This data would be clear from Annexure XV attached with the bid document. The modified financial Form I and II are reproduced below:-
Civil Writ Petition No.18725 of 2011 -14-
*** ANNEXURE -Y SECTION VI FINANCIAL BID FORM -I HIGH SECURITY REGISTRATION PLATE SCHEME
1. NAME OF THE FIRM
2. ADDRESS
3. TENDERED PRICE Sr. Item Weight Unit Base Value Value Value Value Price Total attached Price of of of of Inclusive No. per tax/duty tax/duty tax/duty tax/duty (3X10) vehicle of taxes in 1 2 3 4 duties figure in @___% @___% @___% @___% (5+6+7+ words 8+9) Identify Identify Identify Identify the the the the applic- applic- applic- applic-
able able able able tax/duty tax/duty tax/duty tax/duty ______ ______ ______ ______ 1 2 3 4 5 6 7 8 9 10 11
1. Complete set of 63.95 Set Registration plates inclusive of snap lock and fixing for 2 wheelers-
scooters, motor cycles,
mopeds.
2. Complete set of 2.22 Set
Registration plates
inclusive of snap lock, 3rd
registration plate and
fixing for 3 wheelers and
invalid carriage.
3. Complete set of 23.57 Set
Registration plates
inclusive of snap lock, 3rd
registration plate and
fixing for light Motor
vehicles/Passengers cars.
4. Complete set of 10.26 Set
Registration plates
inclusive of snap lock, 3rd
registration plate and
fixing for Medium
Vehicles/Trailer/
combination/others.
5. Total No. of Vehicles (in 100
ratios)
Sum Total amount.
Note:
1. The above prices are chargeable from vehicles owners and are for providing and fixing High Security Plate on the vehicles.Civil Writ Petition No.18725 of 2011 -15-
***
2. The base prices quoted in column 5 above shall be exclusive of all taxes, duties and levies.
3. The bidder will show the tax/duties in column No.6 to 9 one tax/duty in a column each, identifying each and every tax/duty in the space provided in these columns. The columns may be increased depending upon the number of taxes duties.
4. Weights attached have been arrived at by the department on the basis of approximate percentage of types of vehicles registered in the State during 2009-10.
AUTHORISED SIGNATORY.
ANNEXURE -Z FINANCIAL BID FORM-II HIGH SECURITY REGISTRATION PLATE SCHEME PROVISION FOR SUPPLY OF INDIVIDUAL ITEMS AS REPLACEMENT.
1. NAME OF THE BIDDER
2. ADDRESS
3. BID PRICE Civil Writ Petition No.18725 of 2011 -16- *** Sr.No Item Unit Base price per unit for . providing & affixing the High Security Registration Plate:
In Figures In words.1. 2 3 4
1. Registration Plate size Pc 500 X 120 mm
2. Registration Plate size Pc 340 X 200 mm
3. Registration Plate size Pc 200 X 100 mm
4. Registration Plate size Pc 285 X 45 mm
5. 3rd Registration Plate Pc sticker inclusive of printing
6. Snap Locks Pair Note:
1. The bidder should quote separate rate for each size of plate to cater replacement market, considering that a premium of 20% on the above rates can be charged from the vehicle owner.
2. The above prices are chargeable from vehicle owners and are for providing and affixing High Security Registration Plate on the vehicles. The bidder should quote separate rate for each size of plate/snap lock to cater to the market for piece meal requirement of individual registration plates as different from the requirement of complete sets, considering that a premium of 20% on the above rates can be charged Civil Writ Petition No.18725 of 2011 -17- *** from vehicle owner for piece meal requirement.
3. The base price in column 4 shall be exclusive of all taxes, duties and levies.
13. The Form I and Form II filled by the petitioner and respondent no.3 are reproduced below:-
Form-I Respondent No.3 Petitioner Complete set of JKSDD Utsav Safety plates HSLP (JV) Systems 2 Wheeler 135.69 229.50 3 Wheeler 180.48 256.50 LMV/Car 431.51 414.00 M/HCV 298.53 436.50 Form -II Respondent No.3 Petitioner Complete set of plates JKSDD Utsav Safety Systems HSLP (JV) Plate 500 X 120 mm 188.00 161.00 Plate 340 X 200 mm 214.00 172.00 Plate 200 X 100 mm 75.00 92.00 Plate 285 X 100 mm 53.50 88.00 3rd plate sticker 23.00 20.00 Snap Lock 6.25 24.00 Civil Writ Petition No.18725 of 2011 -18- ***
14. From perusal of the said forms, it would be clear that respondent no.3-JKSDD in all the three categories had quoted substantially lessor price for the number plates of four types of vehicles. The only higher quotation is for the Medium Heavy Commercial Vehicles cars which is Rs.431.51 in comparison to Rs.414.00 quoted by the petitioner. In Form II which basically pertains to the replacement plates, the petitioner has quoted lessor price for plates measuring 500 X 120 mm and plates 340 X 200 mm and for the 3rd plate sticker whereas pricing of respondent no.3 is lower regarding plates measuring 200 x 100 mm and plates measuring 285 X 100 mm. The State has after due deliberations on 14.9.2011 on the basis of total weighted price by taking into account base price + excise duty and base price + taxes prepared two charts and compared the pricing and come to the conclusion that price offered by respondent no.3 is lessor being Rs.18415.84 in comparison to Rs.26206.60 in case of the petitioner. Even if higher rate of plate measuring 340 X 200 mm was taken into consideration then also rate of respondent no.3 came to Rs.19,812.34. Similarly after taking into account all taxes and dues, the rate of respondent no.3 was Rs.22,311.65 in comparison to Rs.29,482.43 in case of the petitioner and in case of the plate measuring 340 X 200 mm for a higher rate, it was only Rs.23,940.12 which would be clear from the chart reproduced below:-Civil Writ Petition No.18725 of 2011 -19-
*** ANNEXURE R-1 CALCULATION SHEET-EVALUATION OF BIDS UNDER HSRP SCHEME CALCULATION OF TOTAL WEIGHTED PRICE ON THE BASIS OF BASE PRICE PLUS EXCISE DUTY AS PER FORM-I. Category of Weight *M/s JKSDD **M/s JKSDD UTSAV SAFETY vehicles attached HSNP (JV) HSNP (JV) SYSTEMS Price of Price X Price of Price X Price of Price X Set weight Set weight Set weight 2-wheelers 63.95 112.00 7162.40 112.00 7162.40 204.00 13045.80 3-wheelers 2.22 148.96 330.69 148.96 330.69 228.00 506.16 LMV/Cars 23.57 356.16 8394.69 356.16 8394.69 368.00 8673.76 M/HCV 10.26 246.40 2528.06 382.51 3924.55 388.00 3980.88 Total 100 18415.85 19812.34 26206.60 (weight) Weighted 184.16 198.12 262.07 price per vehicle Calculation of Total Weighted Price on the basis of base price plus all taxes/duties as per Form-I Category of Weight *M/s JKSDD **M/s JKSDD UTSAV SAFETY vehicles attached HSNP (JV) HSNP (JV) SYSTEMS Price of Price X Price of Price X Price of Price X Set weight Set weight Set weight 2-wheelers 63.95 135.69 8677.38 135.69 8677.38 229.50 14676.53 3-wheelers 2.22 180.48 400.67 180.48 400.67 256.50 569.43 LMV/Cars 23.57 431.51 10170.69 431.51 10170.69 414.00 9757.98 M/HCV 10.26 298.53 3062.92 457.25 4691.39 436.50 4478.49 Total 100 22311.65 23940.12 29482.43 (weight) Weighted 223.12 239.40 294.82 price per vehicle Civil Writ Petition No.18725 of 2011 -20- *** Note: *calculation on the basis of prices mentioned in Form-I. **calculation on the basis of higher price mentioned in Form-II in respect of M/HCV.
15. The chart prepared by the State also goes on to show that difference of rate between the petitioner and respondent no.3 varies from 10.47% to 85.3% and the said chart is reproduced below:-
Type of Plates/Items JKSDD, Utsav Difference vehicle HSLP (JV) Safety in the systems rates Motor 200x100 mm plate 69.00 103.50 +85.23% cycle 285x45 mm plate 49.16 99.00 Snap lock 5.74 27.00 Total 123.90 229.50 3-Wheeler 200X100 mm plate 69.00 103.50 +55.50% 200X100 mm plate 69.00 103.50 Sticker 21.21 22.50 Snap Locks 5.74 27.00 Total 164.95 256.50 Car 500X120 mm plate 172.88 181.12 10.47% 500X120 mm plate 172.88 181.12 Sticker 21.21 22.50 Snap Locks 5.74 27.00 Total 372.21 411.74 Truck 340X200 mm plate 123.78 193.50 + 59.01% 340X200 mm plate 123.78 193.50 Sticker 21.21 22.50 Snap Locks 5.74 27.00 Total 274.51 436.50
16. The difference in rate for motor cycles is 85.23% and as noticed above, it is this set of vehicles which has maximum sale in the State i.e. 2,99,458 two wheelers being being registered in the year 2009-10 and, therefore, it was in the Civil Writ Petition No.18725 of 2011 -21- *** public interest that the State has opted for accepting and treating the respondent no.3 as lowest bidder. The judgments relied upon by the petitioner though do support his case but there is one underlining principle in all these cases which is that where a decision is taken purely in public interest, the Court ordinarily should exercise judicial restraint. In Tata Celluar Vs. Union of India (1994) 6 SCC 651, the Hon'ble Supreme Court held as under:-
"(1)The modern trend points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.Civil Writ Petition No.18725 of 2011 -22-
*** (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."
17. In B.S.N.Joshi & Sons' case, the Hon'ble Apex Court held as under:-
"65. We are not oblivious of the expansive role of the superior courts in judicial review.
66. We are also not shutting our eyes towards the new principles of judicial review which are being developed; but the law as it stands now having regard to the principles laid down in the aforementioned decisions may be summarised as under:
(i) if there are essential conditions, the same must be adhered to;
(ii) if there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of Civil Writ Petition No.18725 of 2011 -23- *** strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully;
(iii) if, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing;
(iv) the parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance with another part of tender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction;
(v) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with;
(vi) the contractors cannot form a cartel. If despite the Civil Writ Petition No.18725 of 2011 -24- *** same, their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given priority;
(vii) where a decision has been taken purely on public interest, the court ordinarily should exercise judicial restraint."
18. The case in hand is one such case where it is general public which have to pay for the cost of High Security Registration Plates and as mentioned above is going to be captive for next ten years as per Clause 4.1 of Section IV of bid document which in the term of the contract and the difference in rate offered by the petitioner for the category of motor cycles, scooters has already been noticed above.
19. There are no allegations of any malafide or bias in the present case against any official and neither there is any allegation that deviation has been made to benefit respondent no.3 by going out of the way. Lapse, if any, is a procedural lapse and it is not in public interest for this Court to exercise its powers of judicial review as it is not sitting in appeal over the decision and there is a need in the facts and circumstances of the case to go through and finalise the process of High Security Registration Plates at the earliest. The petitioner from the charts reproduced above has offered higher price for the main set of plates which every consumer has to buy. The second set of plates which is replacement is not essential requirement and may Civil Writ Petition No.18725 of 2011 -25- *** not be needed by all sets of consumers and for the said set the petitioner has quoted a lower price in Form II.
20. Admittedly, the bidders who had cleared the technical hurdle had apprised the State that the taxes/duties mentioned in Form I may vary and on their suggestion they had been given option to give their base price after including excise duty. Once the petitioner had agreed to this change in the process then it was not open to it to contend that there were not strict adherence to the terms and conditions laid down under Clause 2.9.2 and once he had participated in the process, he could not now turn around and challenge the said process, as there was substantial compliance with the essential conditions which were laid down.
21. The meeting notes dated 14.9.2011 and 10.10.2011 are reproduced below:-
MINUTES NOTE DATED 14.9.2011:
"Representatives of all the 8 bidders who have qualified for opening of the Financial Bids were present. The sealed bids of all the 8 bidders were shown by the Committee to the representatives of the bidders.
The procedure for calculation of the sum total amount for evaluation of financial bids was discussed. The bidders intimated that the taxes/duties mentioned in the Financial Bid Form-I except the excise duty may Civil Writ Petition No.18725 of 2011 -26- *** vary as there may be tax exemptions applicable in certain States. Besides, the amount of taxes/duties mentioned by the bidders in their bids may not be supported with documents and, therefore, the correctness of the same may be questions. They stated that sum total amount may be calculated on the basis of the Base Price including the Excise Duty only, and not on the basis of price including all the taxes/duties. The calculation on the basis of Base Price plus Excise Duty as above will give equal and fair opportunity to all the bidders. The bidders also stated that the base price including excise duty, of the set of plates quoted in Financial Bid Form-I may be considered for calculation of the sum total amount. After detailed discussions, keeping in view the transparency and just & fair opportunity to the bidders, the Committee decided to evaluate the bids in the manner stated above.
The Financial bids of all the 8 valid bidders were opened one by one by the Committee. The comparative statement of the Financial bids is annexed. The following observations are made:-
1. The sum total amount in respect of M/s JKSDD High Security Number Plate (JV), DD House, F- 1/9, Okhla Industrial Phase-I, New Delhi at Civil Writ Petition No.18725 of 2011 -27- *** Rs.18415.84 is the lowest.
2. The price of plate size of 340X200 mm in Form-II has been quoted as Rs.214 per piece by M/s JKSDD, (the lowest bidder), whereas in Form-I, the price of complete set of plates including 3rd plate sticker and snap locks has been quoted as 298.53 in respect of category 4 vehicles. There is inconsistency in the two figures, as based on the price of individual plate of Form-II, the price of the complete set will work out to Rs.457.25 in respect of category 4 i.e. Medium/heavy commercial vehicles/trailers. Therefore, the L1 bidder should be asked to clarify and reduce the price of individual plate of size 340X200 mm correspondingly to match it with the quoted rate for the complete set.
3. In Form-II, it has been mentioned that price of individual plate/items is inclusive of Excise duty and inclusive of Value Added Tax & Service Tax, whereas the total price indicated is actually inclusive of all taxes/duties. This needs to be confirmed from the bidder.
4. The CST and VAT both, have been indicated in the bid by L1 bidder. This does appear to be appropriate as only one of these taxes can be Civil Writ Petition No.18725 of 2011 -28- *** charged from the purchaser.
5. The lowest bidder has included the amount of prescribed royalty (i.e. @ 5%) in the total price which is not correct. Therefore, the price chargeable from the vehicle owners needs to be reduced to that extent.
The clarifications on the above issues need to be obtained from the bidder before taking a view in the matter."
MINUTES NOTE DATED 10.10.2011:
"In the last meeting of the Committee held on 14.9.2011, it was decided to seek clarifications from M/s JKSDD High Security Number Plate (JV), the L1 bidder on certain points. The clarifications submitted by the L1 bidder vide their letter dated 24.9.2011 were perused by the Committee. It has been clarified by the bidder that:-
a) the prices quoted by them in Form-II are inclusive of all duties and taxes for individual items. In the case of item No.2 of Form-II i.e. Plate of size 340X200mm, they shall match the prices quoted by them for complete set as per Sl.
No.4 of Financial Bid Form-I. They shall reduce the base price of one single piece of size 340X200 mm plate to Rs.99.20 excluding duties Civil Writ Petition No.18725 of 2011 -29- *** and taxes etc.
b) they will charge only 13.125% Haryana VAT from the purchaser or as applicable at the time of delivery. The 2% CST as mentioned in the Form will not be charged from the customer.
c) they will not charge extra 5% as royalty from the vehicle owner.
Bifurcation of the price of individual plates/stickers/snap locks i.e. Base price and all taxes and duties separately has been submitted by the bidder in Annexure 'A' submitted along with the reply.
Two representations received from M/s Agros Impex (I) Pvt. Ltd. And M/s Utsav Safety Systems Pvt. Ltd. were also perused by the Committee. M/s Agros Impex (I) have stated that almost all the bidders have violated the tender condition in clause 2.9.2 which says that the sum total of Financial Bid Form II should not be more than the rate quoted in Form-I. Since the item wise rates have not been quoted by the bidders as per the requirement of the department, the department would not be in a position to notify the rates. It is also not possible to fix arbitrary rates which the bidder has not offered to the department nor is it possible for any bidder to submit revised bids as per clause 2.19.1 of the tender document. It has Civil Writ Petition No.18725 of 2011 -30- *** been requested that in the circumstances of the case, the only option left is to cancel the tender process and call for fresh tenders. M/s Utsav Safety Systems Pvt. Ltd. have stated that M/s JKSDD High Security Number Pate (JV) has not complied the clause 2.9 of the tender document as the sum total of financial bid form II is more than the rate quoted in Form-I. Therefore, they being L2 bidder should be declared as L1/successful bidder instead of M/s JKSDD.
The committee considered the representations of the above mentioned bidders. As regards to the manner of filling up Form-I and Form-II by the bidders, the Committee had earlier noted on its own that the financial bids submitted by the bidders did not mention the Excise duty component separately and was included in the base price by all the bidders except M/s JKSDD High Security Number Plate (JV). The Committee had also found other minor deviations in the manner of filling of Form-I and Form-II by the bidders. These deviations were found not to have any material effect on the bids as a whole and were ignorable in the larger interest of vehicle owners. Accordingly, the committee had gone ahead with the evaluation of bids.
As regards to the representation of M/s Utsav Civil Writ Petition No.18725 of 2011 -31- *** Safety Systems Pvt. Ltd., the Committee observed that the financial bids were invited by the department in Form-I and Form-II. The purpose of inviting bids in Form-II was to know the price of individual plates/items. A premium of 20% on the quoted rates in Form-II is allowed to be charged for supplying individual plates in case of piecemeal supplies. In Financial Bid Form-I, price of complete set for four different categories of vehicles was sought from the bidders. Specific weights attached to these four categories of vehicles were made known to the bidders in the tender document. The L1 bidder was to be selected based on the sum total price arrived after adding the price of all the four categories worked out by multiplying the quoted rate with the weight attached to each category. The price charged from the vehicle owner would be the price quoted for individual plates/items as actually supplied to him by the selected bidder.
The rates quoted by M/s JKSDD High Security Number Plate (JV) for complete set in respect of category 4 vehicles i.e. Medium/heavy commercial vehicles, in Form-I is less than the price of individual plates when totaled, mentioned in Form-II. Since, the total of individual plates' price in Form-II should match Civil Writ Petition No.18725 of 2011 -32- *** with the price of complete set in Form-I, it was decided that it would be logical as well as in the interest of the vehicle owners to ask the bidder to match the price of individual plates in respect of category 4 vehicles with the price of complete set, by reducing the price of individual plates in Form-II and to furnish item wise breakup of the cost showing the tax/duties separately. In response, the said bidder has clarified to supply the individual plate of size 340x200 mm @ 99.20 base price plus applicable taxes and duties. At the present rates of Excise Duty (10.3%) and VAT (13.125%) the total price of individual plate of this size works out to Rs.123.78. Thus, the individual plate wise rates clarified by the bidder match the rates quoted by the bidder in Form- II. Thus, the individual rates intimated by the bidder are quite justified.
The Committee, therefore, found that the representation of M/s Agros Impex (I) Pvt. Ltd. and M/s Utsav Safety Systems Pvt. Ltd. did not have any substance. M/s JKSDD High Security Number Plate (JV) remains L1 from every consideration.
The committee also took note of the fact that early implementation of HSRP Scheme is important and the matter is being monitored by Hon'ble Supreme Civil Writ Petition No.18725 of 2011 -33- *** Court of India. Show cause notice to initiate contempt proceedings has also been issued by the Hon'ble Supreme Court of India to certain States including Haryana. The rates quoted by M/s JKSDD High Security Number Plate (JV), L1 bidder are as under:-
Plate/Item Base Excise Duty VAT Total Price @10.3% @13.125%Price 500X120 mm 138.55 14.27 20.06 172.88 340X200 mm 99.20 10.22 14.36 123.78 200X100 mm 55.30 05.70 08.00 69.00 285X45 mm 39.40 04.06 05.70 49.16 3rd Registration plate sticker 17.00 01.75 02.46 21.21 Snap Lock(pair) 04.60 00.47 00.67 05.74 The Committee also observed that the rates applicable in other States where the tenders have been finalized are on a very higher side as compared to the rates quoted by M/s JKSDD High Security Number Plate (JV). In view of the above, the rates quoted by M/s JKSDD High Security Number Plate (JV) appear to be reasonable and, therefore, the Committee recommends that the case may be put up to the competent authority for taking decision in the matter."
22. A perusal of the minutes of the meeting dated 10.10.2011 reproduced above goes on to show that all the Civil Writ Petition No.18725 of 2011 -34- *** factors including the option of cancelling the tender process were taken into account and after taking into consideration the representation of petitioner and other bidders the High Power Committee has come to the conclusion that the discrepancy in the individual plate wise rates quoted in Form II have been clarified by the bidder and there is justification in his clarification and thus, he still would remain L-1 from every consideration even if the higher rate is taken into account. Therefore, keeping in view all the above factors and after examining the decision making process exercised by the official respondents and taking into account the fact that the petitioner company had also participated in the change of criteria to evaluate the bids on the basis of base price plus excise duty and in view of the fact that the decision making process in which no fault can be found is only to be reviewed by this Court and the Government has the discretion of exercising fair play in the joints in the absence of mala-fide and bias, we feel that it is not a fit case for interference in exercise of discretionary powers under Articles 226/227 of the Constitution of India. Accordingly, the writ petition is dismissed without any order as to costs.
(G.S.SANDHAWALIA)
Judge
November 30, 2011 (HEMANT GUPTA)
Pka Judge