Orissa High Court
M/S. Swan Desilting Private Limited vs Metal Scrap Trade Corporation Limited on 2 November, 2020
Equivalent citations: AIRONLINE 2020 ORI 152
Author: S.K. Mishra
Bench: S. K. Mishra
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No. 4513 of 2020
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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M/s. Swan Desilting Private Limited,
having its registered Office at 6,
Feltham House, 2nd Floor,
10 J.N. Heredia Marg, Ballard Estate,
Mumbai-400001, Srinivas Vemparla,
aged about 36 years,
S/o. Dakshinnamurthy Sambasivasastry,
Authorised Officer. ...... Petitioner
-Versus-
Metal Scrap Trade Corporation Limited,
having its registered office at 225-C,
A.J.C. Bose Road, Kolkata-700020,
Bhubaneswar Office at 8th Floor,
IDCO Tower, Janpath, Unit-9,
Bhubaneswar-751022, Odisha and others ...... Opp. Parties
For Petitioner : Mr. Sourya Sundar Das, Sr. Adv.,
Rajen Mahapatra, A. Dash, S. Modi,
S. Das, S.R. Mohapatra and
S.D. Das.
For Opp. Parties : Mr. Ashok Ku. Parija,
learned Advocate General (for O.P.-3).
Mr. Gautam Mishra, Sr. Adv., (O.P.-1)
Mr. Anupam Dash, Jyoti Ranjan
Deo, Asim Kumar Dash (for O.P.1).
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PRESENT:
THE HONOURABLE SHRI JUSTICE S. K. MISHRA
AND
THE HONOURABLE DR. JUSTICE A.K. MISHRA
Date of hearing - 06.02.2020 : Date of judgment - 02.11.2020
S.K. MISHRA, J. By filing this writ application, the petitioner-Company has
prayed to quash the Email dated 4th February, 2020 sent at 06.18. P.M. by
the opposite party no.1 to the petitioner-Company intimating the petitioner-
Company that as the petitioner-Company had uploaded the documents and
attached the file with library folder instead of attaching the same with a
specific mineral block(s), the same would not be considered for evaluation
of the Technical Bid. The petitioner- Company has further prayed to issue
writ in the nature of mandamus directing the opposite party nos.1 and 3 to
allow the petitioner-Company to take part in the second stage of e-tender
scheduled to be held on 5th February, 2020 and to direct the opposite party
nos.1 and 3 to withhold the declaration of result pending final hearing and
order of the writ application.
02. This matter was taken up for hearing on 06.02.2020. As all the
opposite parties appeared, the matter was taken up for hearing on the
question of maintainability and merit at the same time.
03. Mr. S.S. Das, learned Senior Advocate appearing for the
petitioner-Company relying upon different Annexures and affidavits filed in
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Court on that date i.e. on 06.02.2020 submitted that the petitioner-
Company had successfully submitted online Technical Bid in all
respects which obviously includes the "attachment of all the documents as
required under Law/ Bid documents and further the same had been duly
acknowledged, following which an email dated 02.01.2020, at 10.47 P.M.
(Annexure-4 (Colly)) was received by the petitioner-Company from the
opposite party no.1 in acknowledgement of the submission of the Bid. It
was further submitted that the said email acknowledgement specifically
states that the submission of the bid was for Jiling- Langalota Iron Ore
Block. The email correspondences further clear that the acknowledgement
in the system is valid, only if the petitioner does not withdraw or delete its
bid, which the petitioner never did. Therefore, the above acknowledgement
makes the Stage-I complete in all aspects, as the Tender Document under
Annexure-1 at page 81 envisages that upon successful submission of initial
price offer, the Bidder shall receive a bid acknowledgement from the system
automatically, which, therefore, establishes that all the three phases of
Stage-I was complete in all aspects. At page 161 under Annexure-4 (Colly),
the petitioner-Company had uploaded the required documents viz. (i) Bid
letter, (ii) Bank Guarantee and (iii) Power of Attorney, Affidavit, Board
Resolution, which are as per Annexures-I, II, III and IV respectively.
Following the Stage-I of Technical-cum-Initial Price Offer, the final bid was
successfully submitted on 2nd June, 2020 at 10.48.15 P.M. This aspect
gets reflected at page 162 under Annexure-5 as the petitioner never bid for
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any other mine, and the document under Annexure-5 further made it
abundantly clear that the bid was only for Jiling- Langalota Iron Ore
Block, which is in consonance with the Tender Document under Annexure-
1 at page 55, which says that a bidder shall submit only one bid for a
particular Mineral Block. It was further submitted that Annexure-5 makes
it abundantly clear that the petitioner has submitted its Technical Bid,
Initial Price Offer and the bid status reflected as "Bid submitted". The said
document further left an option with the petitioner-Company to either
withdraw bid or delete bid, as reflected in the electronic acknowledgement
receipt at page 160, received from the opposite party no.1. Since the
petitioner-Company never chose to withdraw bid/ delete bid, the Technical
Bid remained valid.
Relying upon a decision of the Hon‟ble Supreme Court in the
case of Om Prakash Sharma -vrs.- Ramesh Chand Prashar and Ors.:
reported in AIR 2016 SC 2570, learned counsel for the petitioner-Company
submitted that as the petitioner-Company has received such an
acknowledgement, the only presumption that can be drawn that it has
successfully submitted its Technical Bid, thereby qualifying the petitioner-
Company to be a "Technically Qualified Bidder" for the second round of e-
auction and, therefore, the petitioner-Company could not have been left out
halfway of the bid process, especially when it has satisfactory complied with
all the requirements. It was further submitted that the above stand gets
further fortified by the fact that the petitioner-Company never received any
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communication from the opposite party nos.1 and 3 showing any deficiency
in the documents from the date of submission of bid i.e. 02.01.2020 till
03.02.2020 to cure any defect.
04. Mr. A. Dash, learned counsel for the opposite party no.1, on
the other hand, submitted that the petitioner in this writ application has
pleaded that due to technical glitches on the website of MSTC-opposite
party no.1, the required documents regarding technical bid could not be
attached online in the particular folder vis-à-vis „Jilling- Langalota Iron Ore
Block‟ as required under the terms of the Tender. It was further submitted
that such averments are completely wrong and denied. It was specifically
stated that there was no technical glitch in the website of MSTC- opposite
party no.1. With respect to the present Tender for „Jilling-Langalota Iron
Ore Block‟, the total number of bids submitted was eighteen including the
petitioner-Company. Out of the same, seventeen bidders faced any
technical issues with regard to uploading of documents online in the
particular folder as required under the tender conditions for this particular
mine. The assertion of the petitioner-Company that there was a technical
glitch in the website of MSTC- opposite party no.1 is stoutly denied. This
aspect regarding non-uploading of the relevant documents in the concerned
folder has been double checked by MSTC-opposite party no.1.
It was further submitted that the auction with regard to several
mines in the State of Odisha is going on at the present moment, out of
which four mines have already been auctioned. The bidders who
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participated in the biding process of the four earlier mines never
complained of any technical glitch in the website of MSTC-opposite
party no.1. Hence, the allegation of the petitioner- Company that there was
technical glitch in the website of MSTC-opposite party no.1 is absolutely
without any basis.
It was also submitted that the decision with regard to
qualification and non-qualification of any bidder is taken by the Director of
Mines-opposite party no.4. The opposite party no.1 does not take any
decision with regard to qualification and non-qualification of any bidder.
The limited role of the MSTC-opposite party no.1 in the present case is that
of a facilitator wherein various intending bidders submit their bids in the
website of MSTC-opposite party no.1. It is relevant to mention that with
respect to the present Tender for „Jilling-Langalota Iron Ore Block‟,
financial bid is already completed. The process of financial bids started at
16:15 P.M. on 05.02.2020 and was completed at 21:54:29 P.M. on
05.02.2020. Hence, it was submitted that any interference by this Hon‟ble
Court at this stage would have the effect of completely setting the clock
back and a vital tendering process will be stalled.
04.1. It was the further contentions of the learned counsel for the
opposite party no.1 that the petitioner has contended in the writ petition
that the technical bid was submitted in the website of MSTC-opposite party
no.1 which was also duly acknowledged and hence, the opposite party no.1
could not have issued the email dated 04.02.2020 at 06.18 P.M. indicating
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that the documents have not been submitted in the proper folder. It was
contended that such a contention is fallacious and is liable to be rejected.
It was stated that as per the process for uploading of documents, once the
technical bid is submitted by any bidder, there is a check list which
appears automatically. The petitioner-Company in the checklist agreed that
it has uploaded and attached electronically all the relevant documents
required as per the provisions of the tender document and hence, there was
an automatically generated email from MSTC-opposite party no.1
acknowledging that the bid has been received. But, this does not mean that
the petitioner-Company attached the bid documents with respect to
technical bid for the concerned mine „Jilling-Langalota Iron Ore Block‟ and
hence, as per the conditions of tender, the technical bid cannot be
considered.
04.2. Learned counsel for the opposite party no.1 relied upon a
decision of the Hon‟ble Supreme Court in the case of Sorath Builders -
vrs.- Shreejikrupa Buildcon Ltd. and another: reported in (2009) 11 SCC
9 wherein it has been held:
"13. The prime consideration on which the High
Court set aside the award of contract in favour of the
appellant is that if the bid of respondent no. 1 was
considered in the tender process there would have been
saving of public money. However, that would not in any
manner justify in going through once again the same
tender process, which is always time consuming. Any
delay in awarding the contract would only mean
increase in the cost of expenditure for cost of
construction would go up with the passage of time.
Xx xx xx xx xx xx xx x
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15. Following the aforesaid legal principles laid
down by this Court, we are of the considered opinion
that the respondent no. 1 was negligent and was not
sincere in submitting his pre qualification
documents within the time schedule laid down despite
the fact that he had information that there is a time
schedule attached to the notice inviting tenders. Despite
being aware of the said stipulation he did not submit
the required documents within the stipulated date. Pre-
qualification documents were received by the
respondent no. 2 - University only after time schedule
was over. The terms and conditions of the tender as
held by the Supreme Court are required to be adhered
to strictly, and therefore, the respondent no. 2 -
University was justified in not opening the tender
submitted by respondent no. 1 on 01.12.2008, which
was late by three days. According to us no grievance
could also be made by the respondent no. 1 as lapse
was due to his own fault. The High Court proceeded to
interfere with the entire process as if acting as an
appellate authority over the decision of the University
which was beyond the jurisdiction of the Court. The
High Court was not justified in accepting the
contentions of respondent no. 1 and thereby upsetting
the entire process of inviting tenders by interfering with
the terms and conditions of inviting the tenders and by
rescheduling and directing the process of re-tendering,
which would only cause further delay and would
increase the burden on the exchequer of the University."
05. Mr. Ashok Kumar Parija, learned Advocate General appearing
for opposite party no.3-State of Odisha placed reliance on the Annexure-7
(Colly) at page 164 of the writ application sent by MSTC-opposite party no.1
wherein it was informed that the petitioner-Company has not found any
attached document against e-tender for „Jilling- Langalota Iron Ore Block‟
and consequently it was debarred from participating any further in the
tender process. Countering the submission of the petitioner-Company that
it has successfully submitted the technical bid in all respects which
obviously includes the „attachment of all the documents‟, it was argued that
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the petitioner-Company had not attached the documents along with its
technical bid as required under Clause 3(a)(i) of Schedule III of the Tender
Document. He further placed reliance on different dates with relation to the
bid of „Jilling-Langalota Iron Ore Block‟ as follows:
Sl. No. Date Particulars
1. 02.01.2020 An acknowledgement email was sent from MSTC to
(10.47 PM) the petitioner Company wherein it was stated that
(Annexure- the bid against "Jilling- Langalota Iron Ore Block"
4 Colly has been submitted by the petitioner Company.
Pg.160) Further, it was also stated that the said email is only
an acknowledgement from the system without any
commitment.
2. 02.01.2020 As per the screenshot submitted by the petitioner
(10.48 pm) Company, it is seen that the technical bid has been
(Annexure- submitted by it.
5 Pg.162)
Note: There is no screen shot provided by the
petitioner Company indicating that the
documents have been attached.
3. 03.03.2020 The Directorate of Mines issued a notice regarding
(Annexure- the second round of e-auction wherein it was stated
6, Pg.163) that each technically qualified bidder will be
intimated by e-mail individually regarding the
scheduled date for the second round of e-auction.
Note: Since the petitioner had not attached the
documents as required under Clause 3(a)(i) of
Schedule III, it was not treated as technically
qualified bidder and no email was sent to it.
4. 04.02.2020 At 2.52 PM, the petitioner Company sent an email to
Pg.170 MSTC where it stated;
"We/ Swan Desilting, Pvt. Ltd., have submitted
a bid for Jilling-Langalota Iron Ore Mine. Our
technical bid was accepted (both online and
physically) and price bid (online) was accepted
"3/1/2020". Our initial price offer was 72%
but we haven‟t received any update for
tomorrow‟s auction.
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Please let us know, if our bid was rejected and
if yes, kindly specify the reason."
5. 04.02.2020 At 4.23 PM, the petitioner Company sent another
Pg.169 email to MSTC wherein it stated the following;
"On Jilling-Langalota Iron Ore Mine, a bid on
behalf of SWAN Desilting Pvt. Ltd., there
seems to be an error on the part of MSTC;
which we are working to rectify, as our
physical and online both have been given and
acknowledged as received. Request you to
please do not publish the final list till this
sorted.
The copies of physical submission and
snapshot indicating the online submission of
technical documents is attached for your kind
reference.
Request your understanding on the same."
6. 04.02.2020 At 5.12 PM, the petitioner Company sent an email to
Pg.167 MSTC wherein it stated;
"Dear Sir,
This refers to our bid on behalf of Swan
Desilting Pvt. Ltd. for Jilling-Langalota Iron Ore
Mine and several correspondences today in this
regard. Evidently, there is an error on the
part of MSTC which we have been
requesting them to rectify, as our physical
and online both have been duly submitted and
acknowledged. Therefore it would be
appropriate that no further action on the
captioned auction process is taken until this
issue is resolved.
While we reserve all our rights under this
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captioned process, we once again attach copies
of physical submission and screenshot
evidencing the online submission of technical
documents and price bid for your kind
reference.
Request for your understanding."
7. 04.02.2020 At 6.18 PM, MSTC intimated the petitioner Company
Pg.166 wherein it stated the following;
"We regret to inform that we haven't found
any attached documents against E-tender
Ref. No.MSTC/BBSR/ Government of Odisha/
89 Bhubaneswar/ 19-20/29719 for Jilling-
Langalota Iron Ore Block.
Further as mentioned in Clause No.3 a.i. of
the Schedule III: "The bidder has to upload the
documents & attach them with the specific
tender for the concerned mineral block (s) for
which it is intending to submit the Technical
Bid. The bidder should note that only a file
which is "attached" with a specific mineral
block (s) shall be considered during evaluation
of the Technical Bid. Files which are not
attached to any mine (s) shall not be considered
for evaluation.
You have forgotten attach the required
documents which you have uploaded to
library.
Further, we have cross checked from our
systems department also to re-confirm
that no documents are found to have been
attached.
This is for your kind information please."
8. 04.02.2020 At 7.10 PM, the petitioner Company wrote an email
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Pg.164 to the MSTC wherein it stated as follows:
"Further to our correspondence through the
day, it may be duly noted that we think this is
evidently a glitch at the end of MSTC, as you
would recall this tender was rescheduled and
we had to revise our bid and BG accordingly
required. As you have seen from the
documents submitted online as claimed by
you in your library the BG and all documents
have been revised to meet the technical
requirements of the revised extended notice
against the captioned block. We were given the
system acknowledgment as we followed all the
due process as explained and understood by
us through you instructions. We are also to
understand that SBI Odisha has intimated on
the physical BG assigned to you for the above
captioned mine.
We were invited to the technical bid opening,
wherein our physical bid was only accepted
once it was clearly informed to us that our
physical bid has only been accepted based on
our online submission. All our documents
were duly accepted and acknowledged at the
time of physical opening of our documents at
the technical bid opening in Bhubaneswar.
There seems to be surely a conflict and as per
our understanding we also qualify the top
quadrant of the price bid, and we have
qualified based on online submission and
physical documents in the entirety.
I refer to you to the clause of Bidding Process,
Clause 8.1, sub POINT A section (ii) which
clearly states in case of conflict between
documents submitted electronically and
document had DELIVERED PHYSICALLY, the
documents hand delivered physically shall
prevail."
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Additionally, he submitted that cause of action for the present writ
application no longer survives since the auction process for „Jilling-
Langalota Iron Ore Block‟ has already been completed on 05.02.2020 and
Shyam Ore Jharkhand Private Limited-opposite party no.7 has become the
highest bidder as it has quoted the highest bid at 135 % of the average sale
value.
06. Mr. Gautam Mishra, learned Senior Advocate appearing for the
opposite party no.1 supported the arguments advanced by the learned
Advocate General.
07. Having heard the learned counsel for the parties, the following
three issues arose for consideration in this case.
(i) The preliminary objection of the opposite parties to the
affidavit is that Mr. Srinivas Vemparla is not a Principal Officer and there is
no resolution of Board of Directors of the Company authorizing the said
Principal Officer to swear the affidavit while filing the present writ
application;
(i)(a) The affidavit has been filed on the date of hearing wherein
Mr. Srinivas Vemparla stated that he is the Financial Controller, the
Principal Officer and the Authorised Representative of the petitioner-
Company, whereas Annexure-1/1 filed on the date of hearing which shows
that a purported resolution has been passed by the Board of Directors of
the Company on 6th February, 2020 resolving that Mr. Shrinivas Vemparla,
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Financial Controller and the authorized representative of the Company and
hereby authorized to sign, verify, affirm declare any Vakalatnama or any
other requisite documents and to depose in this case.
So, the question is whether the writ petition is maintainable in
the signature and affidavit of the said Financial Controller; and the
Resolution of the aforesaid Board of Directors empowers or authorizes the
signatory to swear the affidavit and file the present writ petition.
(ii) Whether the technical bid of the petitioner-Company has
been legally rejected in view of the defence case that the petitioner-
Company has not attached the required documents to the e-tender?
(iii) Whether the petitioner-Company has been able to prima
facie satisfy that non-compliance of that condition of attachment of the
document, for the sake of consideration, is not a deviation in the terms of
NIT as it is providing a level playing field and it does not result in arbitrary
action or discrimination? Even if it is considered non-essential, exercising
the writ jurisdiction as a matter of general proposition it cannot be held
that an authority inviting tenders is bound to give effect to every term
mentioned in the notice in meticulous detail, and is not entitled to waive
even a technical irregularity of little or no significance.
08. In order to consider the first question, we have to take note of
various provisions of the Code of Civil Procedure, 1908 (hereinafter referred
to as "the Code") as well as the Companies Act, 2013. Order 6, Rule-14 of
the Code provides pleading to be signed by party which is quoted below:
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"Every pleading shall be signed by the party and his
pleader (if any):
Provided that where a party pleading is, by reason of
absence or for other good cause, unable to sign the
pleading, it may be signed by any person duly
authorized by him to sign the same or to sue or defend on
his behalf."
Order 29, Rule-(1) of the Code provides for subscription and
verification of pleading on behalf of a Company which is quoted as under:
"In suits by or against a corporation, any pleading may be
signed and verified on behalf of the corporation by the
secretary or by any director or „other principal officer of the
corporation who is able to depose to the facts of the case."
Section 179 of the Companies Act, 2013 provides for the
powers of Board which quoted as below:
" (1) The Board of Directors of a company shall be
entitled to exercise all such powers, and to do all such acts
and things, as the company is authorised to exercise and
do:
Provided that in exercising such power or doing
such act or thing, the Board shall be subject to the
provisions contained in that behalf in this Act, or in the
memorandum or articles, or in any regulations not
inconsistent therewith and duly made thereunder,
including regulations made by the company in general
meeting:
Provided further that the Board shall not exercise
any power or do any act or thing which is directed or
required, whether under this Act or by the memorandum
or articles of the company or otherwise, to be exercised or
done by the company in general meeting".
(2) No regulation made by the company in general
meeting shall invalidate any prior act of the Board which
would have been valid if that regulation had not been
made.
(3) The Board of Directors of a company shall
exercise the following powers on behalf of the company by
means of resolutions passed at meetings of the Board,
namely:--
(a) to make calls on shareholders in respect of
money unpaid on their shares;
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(b) to authorise buy-back of securities under Section
68;
(c) to issue securities, including debentures,
whether in or outside India;
(d) to borrow monies;
(e) to invest the funds of the company;
(f) to grant loans or give guarantee or provide
security in respect of loans;
(g) to approve financial statement and the Board‟s
report;
(h) to diversify the business of the company;
(i) to approve amalgamation, merger or
reconstruction;
(j) to take over a company or acquire a controlling or
substantial stake in another company;
(k) any other matter which may be prescribed:
Provided that the Board may, by a resolution passed
at a meeting, delegate to any committee of directors, the
managing director, the manager or any other principal
officer of the company or in the case of a branch office of
the company, the principal officer of the branch office, the
powers specified in clauses (d) to (f) on such conditions as
it may specify:
Provided further that the acceptance by a banking
company in the ordinary course of its business of deposits
of money from the public repayable on demand or
otherwise and withdrawable by cheque, draft, order or
otherwise, or the placing of monies on deposit by a
banking company with another banking company on such
conditions as the Board may prescribe, shall not be
deemed to be a borrowing of monies or, as the case may
be, a making of loans by a banking company within the
meaning of this section.
Explanation I.--Nothing in clause (d) shall apply to
borrowings by a banking company from other banking
companies or from the Reserve Bank of India, the State
Bank of India or any other banks established by or under
any Act.
Explanation II.--In respect of dealings between a
company and its bankers, the exercise by the company of
the power specified in clause (d) shall mean the
arrangement made by the company with its bankers for
the borrowing of money by way of overdraft or cash credit
or otherwise and not the actual day-to-day operation on
overdraft, cash credit or other accounts by means of which
the arrangement so made is actually availed of.
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(4) Nothing in this section shall be deemed to affect
the right of the company in general meeting to impose
restrictions and conditions on the exercise by the Board of
any of the powers specified in this section."
09. In this case, having considered the affidavit filed by the
Authorised Officer and the contents of the Annexure annexed herein as
Annexure-1/1, we are of the opinion that there is sufficient compliance of
requirement of law and the writ petition is maintainable. Question no.(i) at
paragraph-7 above is answered accordingly.
09.1. So far as question no.(ii) at paragraph-7 above is concerned,
placing reliance on the judgment of the Division Bench of the High Court of
Madhya Pradesh, Jabalpur passed in the case of Sunflag Iron and Steel
Co. Ltd. -vrs.- State of M.P.: 2019 (1) M.P.L.J.689; we are of the opinion
that the technical bid of the petitioner-Company has been rightly rejected,
as the petitioner-Company has failed to attach documents as required in
the tender conditions. In the said judgment i.e. in the case of Sunflag Iron
and Steel Co. Ltd. (supra) it has been held as follows:
"8. The stand of the respondent is that the
document at page 146 is only in respect of part of Bid
Floor Manager, which is one of the three sub- menus
under the heading "My Menu". The petitioner had
completed the second sub-menu of "Upload Documents"
and not the third menu "Attach Documents". Therefore,
the petitioner has not completed the submission of
technical bid online, which does not entitle the petitioner
to participate in online auction process. It is further
pointed out that as many as 33 bidders have been found
to be technically qualified in the notice published on
10.05.2018, therefore, the contention of the petitioner is
untenable as large number of bidders have completed the
same online system of technical bids.
Xx xx xx xx xx xx xx xx xx xx xx xx xx xx.
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10. We do not find any merit in the arguments of
the learned counsel for the petitioner. The third sub-menu
of "Attach Documents" is part of the tender conditions. The
petitioner has made omnibus statement that the
conditions of the Notice Inviting Tender were
complied with but in support of the said contention the
petitioner has relied upon two screen-shots i.e. "Upload
Documents" at page 145, which deals with the second
stage of sub- menu whereas screen-shot at page 146 is to
the effect that the final bid has been successfully
submitted including the technical bid and initial price WP-
11068-2018 offer. The said screen-shot (at page 146) is
taken at 3.27 PM on 24.03.2018. Such screen-shot is, in
fact, compliance of the first sub-menu of Bid Floor
Manager as per the conditions mentioned above that is
after saving the Technical Bid, the link/button for Initial
Price Offer shall get activated. The Bidders are then
required to fill up its Initial Price Offer and click on the
Final Submission button by digitally signing the said
stage. Therefore, the submission of Initial Price offer is the
first stage of first sub menu. The second screen shot (at
page 145) of "Upload Documents" shows that the
documents have been uploaded on 23.03.2018 but the
screen-shot has been taken at 2.19 PM on 12.05.2018.
11. A perusal of the tender conditions mentioned
above shows that after accessing "My Menu", three sub-
menus will appear i.e. "Bid Floor Manager", "Upload
Documents" and "Attach Documents". In the link "Bid
Floor Manager", the menu will display a list of mines for
which the bidder has paid the tender document fee. On
clicking on any of these mines, the bidder will be directed
to a screen where it can fill up the technical bid template
and save the data. After saving the technical bid, the link
for initial price offer shall get activated. The final
submission shall be digitally signed by the bidder using its
registered digital signature.
12. The screen-shot (Annexure P-6) at page 146 is
in respect of final bid successfully submitted, which shows
submission of technical bid and initial price offer. The
documents have been uploaded on 23.03.2018 though the
screen-shot has been taken on 12.05.2018. However,
neither there is any averment that the third sub-menu of
"Attach Documents" was completed nor WP-11068-2018 is
there any screen-shot of attaching documents produced.
In fact, the third sub-menu contemplates that after
submission of initial price offer, the bidder shall receive a
bid acknowledgment from the system automatically. As per
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the petitioner, Annexure P-6 at page 146 is the
acknowledgment but that is not contemplated by the
tender document, as the acknowledgment has to be
received, which obviously mean by email. The petitioner
has not received any email that three sub-menus have
been completed by the petitioner. Since the petitioner has
not furnished the technical bid at the first stage itself,
therefore, the bid of the petitioner has been rightly rejected
on the ground that technical bid has not been received.
13. The sub menu, of uploading documents, is like
a reservoir of documents, out of which the documents are
required to be attached out of the documents uploaded.
The files have to be attached before a bidder is permitted
to participate in the bidding process. The instructions are
clear and categorical when it is stated that after uploading
of the documents, the bidder shall have to attach them
with the specific tender for the concerned mine for which it
is intending to submit the Technical Bid. It was also
brought to the attention of the bidders that in case they
intend to use the same supporting document for more
than one mine, they do not need to upload the same
document every time. The supporting document, once
uploaded, can be attached with Technical Bid for multiple
mineral block(s), if desired. It was specifically stated that
"the bidder should note that only a file which is "attached"
with a specific mine(s) shall be considered during evaluation
of the Technical Bid. Files which are not attached to any
mine(s) shall not be considered for evaluation".
After careful consideration of the matter, in the light of the decision of the
Hon‟ble Supreme Court in the case of Sunflag Iron and Steel Co. Ltd.
(supra), we are of the opinion that the petitioner-Company has not
furnished the technical bid at the first stage itself, therefore, the bid of the
petitioner-Company has been rightly rejected on the ground that technical
bid has not been received. Question no.(ii) at paragraph-7 above is
answered accordingly.
09.2. Coming now to the 1st part of question no.(iii) at paragraph 7
above with regard to non-compliance of condition of attachment of the
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document, we have no doubt that the petitioner-Company has failed to
satisfy that non-compliance of condition of attachment of the
document is not a deviation in the terms of NIT, in view of the principles
"where a power is given to do a certain thing in a certain way the thing
must be done in that way or not at all". In the case of Central Coalfields
Limited and Another -vrs.- SLL-SML (Joint Venture Consortium) and
Others: reported in (2016) 8 SCC 622, the Hon‟ble Supreme Court applying
the principle "where a power is given to do a certain thing in a certain way
the thing must be done in that way or not at all", held that, "if the employee
prescribes a particular format of the bank guarantee to be furnished, then a
bidder ought to submit the bank guarantee in that particular format only and
not in any other format".
In that view of the matter, the 1st part of question no.(iii) at
paragraph 7 above is answered.
09.3. Further coming to the 2nd part of question no.(iii) of paragraph-
7 above relating to non-essential condition, we placed reliance on the
judgment of the Hon‟ble Supreme Court in the case of Poddar Steel
Corporation-vrs.- Ganesh Engineering Works and Ors.: reported in
(1991) 3 SCC 273, wherein the Hon‟ble Supreme Court has considered the
conditions which are essential conditions of eligibility and those which are
ancillary or subsidiary with the main object to be achieved and observed as
follows:
".........As a matter of general proposition it cannot be laid
down that an authority inviting tenders in bound to give
effect to every term mentioned in the notice in meticulous
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detail, and is not entitled to waive even a technical
irregularity of little or no significance. The requirement in
a tender notice can be classified into two categories-those
which lay down the essential conditions of
eligibility, and the other which are merely ancillary or
subsidiary with the main object to be achieved by the
condition. In the first case the authority issuing the tender
may be required to enforce them rigidly. In the other case
it must be open to the authority to deviate from and not to
insist upon the strict literal compliance of the condition in
appropriate cases."
The answer to this question is concluded in view of the above
referred decision. We are of the opinion that the condition violated by the
petitioner-Company is one of the essential conditions. Hence, violation of it
makes the bid of the petitioner-Company liable to be rejected.
10. Accordingly, the aforesaid three questions have been answered
and basing upon them, we are not inclined to entertain this writ petition
and the same being devoid of merit is dismissed.
There shall be no orders as to costs.
..............................
S.K. Mishra, J.
Dr. A.K. Mishra, J. I agree.
.................................. Dr. A.K. Mishra, J.
Orissa High Court, Cuttack, Dated 2nd of November, 2020/B.Jhankar