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Showing contexts for: nvs in M/S Agmatel India Private Limited vs M/S Resoursys Telecom on 31 January, 2022Matching Fragments
31. The terms of tender must receive the natural and commonly understood interpretation, which has been prevalent in the trade. What is prevalent in the trade has been demonstrated by the petitioner – by reference to the 5 tenders floated by different Government/ PSUs in different parts of the country for same/ similar products.
32. Applying the said test, can it be said that the respondent NVS could exclude smart mobile phones from the similar category of products, as Tablets? The answer is an emphatic “No”. The Clause, intentionally, has been worded loosely in order to have maximum competition amongst bidders.” 11.3. Thereafter, the High Court took note of the stand taken by NVS in its reply dated 01.07.2021 and that taken in the counter affidavit filed before the Court and observed that the TEC of NVS, on its own, had decided to curtail the competition by narrowing the scope of the eligibility criteria by taking only tablets as falling under “similar” category and not considering the past supplies of other products like smart mobile phones, laptops etc. The High Court, however, observed that exclusion of the products like Aadhaar kits, printers, power-banks etc. was not being considered and the TEC might have been justified in not considering them as falling under “similar” category products but, the TEC could not have gone outside the scope of tender. The Court further observed that in the counter affidavit, the averment had been to the effect that the “Tablets” and “Smart Mobile Phones” were not of “same” product or “similar” product but the criterion had been of “similar Category of Products” and these words were not of surplusage. The High Court disapproved the stance of NVS, as being not in conformity with open competition and found it unacceptable in public interest. The High Court observed and held thus: -
Accordingly, the High Court directed the appellant-NVS to process the technical bid of the writ petitioner and thereafter proceed in accordance with law.
11.7. Feeling aggrieved by the aforesaid judgment and order dated 27.09.2021, the tender inviting authority-NVS as also the bidder who is declared successful-Agmatel have preferred these appeals. Rival Submissions
12. Assailing the judgment and order so passed by the High Court, learned Solicitor General of India appearing for the appellant-NVS has referred to the facts that the tender notice in question was issued for supply of Tablets for the students of Class XI and XII, with specific past performance criterion that the bidder or its OEM, themselves or through resellers, ought to have supplied same or similar category products to the extent of 80% of bid quantity (which was changed to 60% by corrigendum) in at least one of the last three financial years before bid opening date to any Central/State Government Organisation/PSU/Public Listed Company; and when the technical bids were opened, the writ petitioner was declared disqualified for having fallen short in past performance criterion by 10.20%. In this regard, the learned Solicitor General has particularly referred to the details stated in the additional affidavit filed on behalf of the appellant-NVS. We shall refer to the relevant part of these details too, in the segment of discussion. 12.1. The learned Solicitor General would argue that the writ petitioner had erroneously added its past supplies towards “Smart Phones/Mobile Handsets” and “Power Banks” so as to fulfil the past performance criterion required for awarding the tender for “Tablets” and hence, such supplies were not counted towards the requisite 60% of the bid quantity. 12.2. The learned Solicitor General has contended that “Smart Phones” and “Tablets” are two different products and belong to different categories and in this regard, has particularly referred to GeM portal of the Ministry of Commerce and Industry, Government of India. It has been submitted that on the said portal, “Smart Phones” and “Tablets” have been placed in totally different categories inasmuch as “Tablets” fall under the category “Computer Equipment and Accessories” within sub-category “Computers” whereas “Smart Phones” fall under the category “Communication Devices and Accessories” within sub-category “Personal Communication Devices”. The “Smart Phones” also fall under the category “Data Voice or Multimedia Network Equipment or Platforms and Accessories” within sub- category “Digital Mobile Equipment and Components”. With such categorisation, the learned Solicitor General would argue, the stand of the appellant-NVS is fortified that “Smart Phones” do not fall under same or similar category products as “Tablets”. It has further been argued that the terms were clear and none of the participating bidder found any ambiguity therein and hence, provided the requisite details of the supplies pertaining to “Tablets” only, except the writ petitioner. There was neither any ambiguity nor anyone asked for any clarification including the writ petitioner and only request was for reducing the past performance quantity from 80% to 40% whereupon, the quantity was reduced by corrigendum to 60%. The contention, thus, has been that everyone including the writ petitioner well understood the requirement in the past performance criterion as being that of supply of “Tablet” computers only. 12.3. It has further been submitted that the expressions “same” or “similar” category products in the tender condition were obviously in reference to different varieties and types of “Tablets”, like Slate Tablets, Convertible Tablets, Hybrid Tablets, Phablets, Rugged Tablets, Tough Tablets, Booklet, Microsoft Surface, Amazon Kindle Fire, Surface Pro Tablet PC, iPad, iPad Air, iPad Pro, iPad Mini, Samsung Galaxy Tab, ThinkPad etc. 12.4. With reference to the decision of this Court in Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited & Anr.: (2016) 16 SCC 818, the learned Solicitor General has argued that author of the tender document is the best person to understand and appreciate its requirements; and that the Courts must defer to such understanding and appreciation of tender documents by the tender inviting authority, unless there be any allegation of mala fide or perversity. The learned Solicitor General has particularly referred to the enunciation by this Court that even if an interpretation to the tender document by the author of the tender is not acceptable to the Constitutional Court, that, by itself, would not be a reason for interfering with the interpretation given. 12.5. It has further been contended that the threshold of mala fide intention to favour someone or arbitrariness or irrationality or perversity must be met before the Court would interfere with the decision-making process or the decision itself. Even in the case of ambiguity or doubt, the Court would be refraining from giving its own interpretation unless the interpretation given by the administrative authority is shown to be perverse or mala fide or intended to favour someone. The learned Solicitor General has contended that there being no finding about any mala fide or perversity or bias, the High Court has erred in interfering in the present tender process. It has been argued that even if the interpretation of tender document by the appellant was not found acceptable by the High Court, that, by itself, was not a sufficient reason for interference. It has also been submitted that the interpretation of the appellant-NVS is based on the pre-dominant purpose of the goods sought to be procured and no arbitrariness or irrationality could be imputed therein.
Guwahati Bid was Not ** Since, the
High Court at invited for mentioned in referred tender
Guwahati supply & the Writ as was itself for
maintenance well as smartphones,
of 395 additional hence no
numbers of affidavit. compatibility
smartphones However, and relevance
for Bailiff/ documents with the subject
Process were attached matter which is
servers in with the WP. the bid process
various court of Tablet
complexes of Computers.
Assam.
High Court of To supply and Smart phones **Bid was
Himachal install approx. & Tablets are cancelled.
Pradesh, 455 number considered at
Shimla of par for the
smartphones purpose of
to the process meeting the
servers and eligibility
bailiffs in the criteria.
subordinate
courts. Smart Phones
are
interchangeab
le.
Both have
same
specifications.
Meghalaya Tender for Meghalaya ** Tender
Information procurement Information clause for
Technology of Tablet PCs Technology eligibility
Society Society criteria is totally
(MITY) invited a distinct from
tender for the NVS bid.
Tablets
wherein **In the
Tablets/ eligibility
Smart/ conditions,
Phones/ bidder has
Laptops are specifically
considered mentioned that
under same they will
and similar consider Tablet
category. PC or Smart
Phones or
Laptops or IT
products.
Kerala State Rate Contract Not In the bid
Electronics for Tablet mentioned in document of
Development PC’s for e- the Writ as KELTRON, it is
Corporation health well as specifically
Ltd. additional mentioned that
affidavit. Tablet, PCs,
However, Laptop, Net
documents books,
were attached Desktops will
with the WP. be accepted.
Nowhere
Kerala State
Electronics
Development
Corporation
Ltd. accepted
the
smartphones in
the similar
category of
ICT(Tablet, PC
Laptop,
Netbook and
Desktop).
**Tender clause
is different
however
smartphones is
not considered.
REC Power Rate contract Bidder should **In the bid
Distribution for supply of have desire document, past
Co. Ltd. 1000 number experience of performance
of Tablet. supplying criteria is totally
Tablet/ Smart distinct from
phones. the NVS bid
document.
Tender clause
is different.
**The bid
process floated
by RECPDCL
was not floated
through the
GeM Portal,
hence, the
RECPDCL and
NVS are not on
similar footing.
**The matter of
NVS is distinct
as no query
was raised by
the anyone of
prospective
bidders
regarding
inclusion of
smart phones
in past
experience.
**The bid
process was
floated 6 years
back.
Department of Expression of In the tender **It is
Education, interest (EOI) documents Expression of
Govt. of Bihar for selection under clause Interest not a
of agencies 3.7.3, the Tender.
for supply and criteria is
service of E- mentioned **Referred
learning that the bidder has
tablets. bidder should prepared the
be either documents of
OEM or bid as per their
authorized need, expertise
supplier of and familiarity.
Mobiles/ However, NVS
Tablets. has floated the
bid of procuring
Tablet on GeM
portal, Govt of
India adhering
to the all norms
& provisions of
bidding
process.
**Pre-
qualification
criteria are
distinct from
the NVS
criterias.
**Past
performance
criteria
mentioned in
clause 4 by
NVS and
criteria referred
by the bidder
under clause
3.7.3 are
distinct.
Govt. of Bihar, Tender for Rural **The matter of
Rural procurement Development NVS is distinct
Development of Tablet and Department, as no query
Department related Govt. of Bihar was raised by
accessories considered the anyone of
for BRDS experience of prospective
under BIPS products like bidders
project tablet and regarding
smartphones inclusion of
under similar smart phones
products. in past
experience.
**In the bid
document
(Addendum-II),
experience
[clause 3(b)] is
distinct to the
NVS past
experience
clause 4. In the
referred bid
document
tenderer
(buyer/author
of the tender)
has specifically
shown the
intends to
consider the IT
product like
Tablet and
Smartphones
whereas NVS
has nowhere
mentioned.
making by the tender inviting authority, is that it should not be suffering from illegality, irrationality, mala fide, perversity, or procedural impropriety. No such case being made out, the decision of the tender inviting authority (NVS) in the present case was not required to be interfered with on the reasoning that according to the writ Court, the product “Smart Phone” ought to be taken as being of similar category as the product “Tablet”.
25. It has also been argued on behalf of the writ petitioner that the reasons for rejection by NVS have not been consistent. We are unable to find any inconsistency in the reasons assigned by the appellant-NVS in rejection of the bid of the writ petitioner. In the initial information, only this much was stated that there was a mismatch of technical specification but, when required further by the writ petitioner, the appellant-NVS elaborated, in its reply dated 29.06.2021, on the fact that the work orders concerning smart phones, laptops, Aadhaar kits, printers, power-banks were not considered to be as same or similar category products to that of tablets. Yet further, the representations made by the writ petitioner and its OEM were responded with the assertion that the TEC had considered only “Tablets” under similar category to ensure proven products. Same has been the stand of NVS before the High Court and before us. Mere elaboration by the tender inviting authority as regards its reasons and basis of the decision cannot be said to be that of any inconsistency.