Central Information Commission
Mr. Chander Shekhar vs Bsnl on 10 November, 2009
Central Information Commission
CIC/AD/A/2009/001366
Dated : November 10 , 2009
Name of the Applicant : Mr. Chander Shekhar
Name of the Public Authority : BSNL
Background
1. The Applicant filed an RTI application on 02.07.09 with the DGM (MIS), BSNL seeking information against four specific points about the Mega Tender floated by BSNL in all four zones for Planning, Engineering, Supply Installation, Testing & Commissioning of Infrastructure for cellular mobile expansion. The Applicant stated that he was one of the shareholders of KEC International Ltd., which was one of the bidders in the said tender. He further held that the financial bid has been opened in February 2009 and evaluation thereof have been finalized, and sought the following specific information pertaining to the bids:
a. Copy of the complete Report of Evaluation of Tender on the Financial Bids received from various bidders against Part 3 of Tender No. IMPCS/PHASE VI/WZ/CGMT-MH/2008-09/1 dated 01.05.2009 opened on 28.02.2009 for West Zone;
b. Copy of the complete Report of Evaluation of Tender on the Financial Bids received from various bidders against Part 3 of Tender No. CTD/IMPCS/TENDER/PHASE VI/2008-09 dated 01.05.2009 opened on 28.02.2009 for East Zone;
c. Copy of the complete Report of Evaluation of Tender on the Financial Bids received from various bidders against Part 3 of Tender No. CMTS/PB/P&D/PHASE VI/25M/TENDER/2008-09 dated 01.05.2009 opened on 28.02.2009 for North Zone;
d. Copy of the complete Report of Evaluation of Tender on the Financial Bids received from various bidders against Part 3 of Tender No. TA/Cellone/SZ/2008/01 dated 01.05.2009 opened on 28.02.2009 for South Zone.
2. The CPIO/DGM (MIS-II) vide his letter No. 18-478/09-RTI dated 30.07.2009 declined the request on the ground that the information sought was of "commercial confidence" in nature seeking exemption from disclosure under Section 8 (1) (d) of the RTI Act 2005.
3. Being denied access to information, the Applicant filed a First Appeal dated 07.08.09 with the Appellate Authority/GM (MIS), BSNL. While reiterating his RTI query, the Applicant stated that information should be disclosed to him since the tenders are open tenders from a Govt of India enterprise viz. BSNL for the work to be done in the interest of public, utilizing Government funds and also because he believed that since the financial bids were already read out to other bidders at the time of opening of the bid, there is nothing 'confidential' in the information. The Applicant further stated that after the opening of the bids, the most important part of the commercial confidentiality that is the Overall Bid Value and item-wise quotes of each bidder is shared among the bidders in any case. Hence it was the contention of the Applicant that the financial bidding process having now attained finality upon even the evaluation process being completed no more 'commercial confidence' remained in the entire process so as to be concealed by the Respondent. The Appellate Authority vide his order dated 08.09.09 while upholding the order of the CPIO informed that the concerned Branch handling the query had confirmed the opinion of the CPIO and stated that BSNL had signed Non Disclosure Agreement with all the participating vendors. Hence disclosure of any information in this regard would result in breach of the said Agreement.
4. Still dissatisfied with the response of the Appellate Authority, the Applicant filed an Appeal before the Central Information Commission on 29.09.2009 giving detailed account of the events leading to the filing of the instant Appeal. The Applicant apart from reiterating his RTI request also clarified that the Non Disclosure Agreement was meant to forbid the parties from disclosing the information to third party which could affect the tender process thereby preventing any third party or party to tender to be unjustly benefited from the information obtained illegally. It was the contention of the Applicant that since in this case, the bids had been opened and even the evaluation process was over hence disclosure of the Report of the Process of Evaluation to public at this stage will neither benefit any party interested in the tender nor will affect the process of tender adversely. In fact since Respondent is a Public Authority and responsible to public at large for all its actions, such disclosure of information involving a financial outlay of approximately Rs. 40,000 crores will only result in reinforcing public faith in the diligent service and protection of public interest by the Respondent. The Applicant also raised an additional query as to seeking the reasons as to why the company which quoted lower prices could not still secure the L1 position after the financial evaluation of the bids in East Zone and how competition denied it better ratings in other zones.
5. The Bench of Mrs. Annapurna Dixit, Information Commissioner, scheduled the hearing for 05 November, 2009.
6. Sh. Joginder Singh, AGM (RTI) & CPIO represented the Public Authority.
7. The Applicant was represented by Mr. Surinder Bir and Mr. Pankaj Agarwal during the hearing.
Decision
8. The Respondents submitted their reply to the Appeal vide communication dated 04.11.2009 reiterating the order passed by the Appellate Authority to the extent that BSNL had signed a Non Disclosure Agreement (NDA) with all the participating vendors. Hence disclosure of information would result in breach of contract. Furthermore, the contention of the Appellate Authority to the effect that the overall bid value is readout as a practice in the presence of representatives of bidders was simply to ensure authenticity of the bids. Copies of two such Non Disclosure Agreements were placed on record and parts thereof reproduced in the submissions as well. The Respondents took the additional plea at this stage, that the matter is sub judice before the Hon'ble Supreme Court and the Appellant alongwith M/s KEC International Ltd were petitioners in the said litigation; hence the requested information could not be supplied.
9. The Appellant on his part has also submitted a Concise Note of his Arguments rebutting each of the contentions of the Respondent. While explaining the background of the case, the Appellant submitted that the bids were to be evaluated in two stages viz. the techno commercial and the financial part. The financial bid was to be opened in respect of only those parties which qualified techno commercial evaluation of the bids. Despite offering the lowest bid from the East Zone as on 28th Feb 2009, KEC's rating was downgraded during subsequent financial evaluation and the bid of another bidder viz. ACME Ltd.,despite being non compliant with the terms of the tender, was evaluated as the lowest. Hence the evaluation process of BSNL was challenged and a Writ Petition to this effect filed in the Calcutta High Court and subsequently the matter reached the Supreme Court. Meanwhile ACME filed a Writ Petition in the Mumbai High Court challenging the technical & financial evaluation of the bids by BSNL and produced before the Mumbai High Court the clandestinely obtained copies of the financial evaluation report and price negotiation report pertaining to the West Zone. Since the source of obtaining the copies of the documents were not made known, it drew stern observation from the Mumbai High Court and the petition was dismissed. However the BSNL did not raise the issue of the Non Disclosure Agreement or Commercial Confidence; nor did it take any action against ACME. Ironically the same documents which had been obtained by ACME surreptitiously had been sought by the Appellant in the form of the RTI application. If the documents were withheld under the garb of the NDA or Commercial confidence from the Appellant, the availability of similar documents with another bidder in another litigation, according to the Appellant, was directly contradictory.
10. It is abundantly clear from the material available on record that the evaluation process being complete, the commercial position of any of the bidders could not be affected, least of all adversely, post the opening and finalization of the tender. Thus the exemption sought under Section 8(1) (d) of the RTI Act 2005 is not maintainable since the information sought by the Appellant is already in public domain after the finalization and completion of the bidding process and evaluation and consequently as discussed hereinabove, cannot pose a threat to the competitive position of any of the bidders, at this stage. In fact it is in larger public interest to disclose such information, as rightly contended by the Appellant, which pertains to an activity undertaken by a Public Authority utilizing public money to the tune of approximately Rs. 40,000 crores for providing services to the public at large. The Non-Disclosure Agreement also is valid only for the Confidentiality Period, which is the period till the bids are opened, as is clearly envisaged in the Agreement itself. It cannot be the case of the Respondent that no information pertaining to such public activity with a huge financial outlay, involving such enormous public exchequer, shall be kept secret. Looking at the issue from a different perspective, the Commission also believes that such a Non- Disclosure Agreement between a Public Authority and any agency, debarring the access to information, thereby disrupting the transparency and accountability of the Public Authority completely, is in direct violation of the very spirit of the RTI Act 2005, and therefore is illegal to that extent, as the RTI Act only allows exemption from disclosure under specific conditions as given under Sections 8(1) and 9. The NDA executed sometime during mid 2008 is illegal per se if it stipulates non disclosure of information even beyond the "Confidentiality Period" i.e. precisely even after the opening of the tender and the finalization of the evaluation process etc. since it is contradictory and conflicts with the provisions of the law I.e the RTI ACT 2005. The public interest in this case any way far outweighs the weak contentions put up by the Respondent to protect the so-called private interests. In so far as the pendency of the Supreme Court case is concerned, firstly it seems like an afterthought on the part of the Respondent, since the ground was not taken earlier. Secondly, since the Supreme Court is not investigating nor sitting at trial over the case, no question of impeding process of investigation arises. The Respondent has simply denied information since the matter is sub judice, whereas there is no such provision of law of denial, under the RTI Act 2005.
11. The Commission is thus of the considered opinion that the information as sought by the Appellant cannot be categorized as exempt since the same is available in public domain after the opening of the bid and finalization of the evaluation process. The Respondent is accordingly directed to furnish the information within 15 days of receipt of this order, under intimation to the Commission.
12. The appeal is accordingly disposed of.
Decision in the matter was reserved and pronounced in open Court on 10, November 2009.
(Annapurna Dixit) Information Commissioner Authenticated true copy:
(G. Subramanian) Asst. Registrar Cc:
1. Sh. Chander Shekhar House No. 194, Sector - 17 Faridabad Haryana - 121 002
2. The CPIO BSNL A - 703, Statesman House B- 148, Barakhamba Road New Delhi
3. The Appellate Authority A - 703, Statesman House B- 148, Barakhamba Road New Delhi
4. Officer incharge, NIC
5. Press E Group, CIC