Gujarat High Court
Superior Securitas A Proprietorship ... vs Oil And Natural Gas Corporation Ltd & on 6 February, 2017
Bench: S.R.Brahmbhatt, A.Y. Kogje
C/SCA/14725/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14725 of 2016
With
CIVIL APPLICATION NO. 12729 of 2016
In
SPECIAL CIVIL APPLICATION NO. 14725 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the
interpretation of the Constitution of India or any order made
thereunder ?
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SUPERIOR SECURITAS A PROPRIETORSHIP FIRM....Petitioner
Versus
OIL AND NATURAL GAS CORPORATION LTD & 1....Respondents
======================================
Appearance:
MR. I. H. SYED, ADVOCATE with MR. PRITHU PARIMAL with MR.ADITYA MEHTA with
MR. JEET PATEL for the LEGAL, ADVOCATE for the Petitioner
MR NEERAJ J VASU, ADVOCATE for the Respondent No. 2
MR. R. R. MARSHALL, SENIOR ADVOCATE WITH MR RITURAJ M MEENA, ADVOCATE
for the Respondent No. 1
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
And
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 06/02/2017
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT)
1. The petitioner, a partnership firm through its authorized signatory has approached this Court by way of this petition under Article 226 of the Constitution of India with following prayers, inter alia challenging the action of the respondents in canceling of the Letter of Award (LOA) no. ANK/MM/P4 (SERVICE) - RB/CATERING/02/2016 17/A16RC16010 dated 24/08/2016 vide its letter dated 29/08/2016 against ONGC etender no.ANK/MM/P4 (SERVICE) - RB/CATERING/02/201617/A16RC16010 for hiring services for Catering & Housekeeping Services at Muller Colony, CPF Gandhar, North Gandhar Colony and GGS Olpad of Surface Section and at DSA Gandhar and DSA Dabka of Drilling Section of Ankleshwar Asset for a period of 3 years.
(A) Issue an appropriate writ to quash and set aside the letter dated 29th August 2016 issued by the Respondent, cancelling the Letter of Award issued in favour of the Petitioner (Copy at Annexure 'A' hereto).
(AA) Issue an appropriate writ directing the RESPONDENT to issue amended Letter of Award after correctly calculating AA as 480 x 615 x 365 x 3 = 32,32,44,000 in the LOA dated 24th August 2016 (Copy at Annexure "B" hereto).
(AAA) Issue an appropriate Writ to direct the Respondent to foreclose the agreement with the current contractor as per clause BB. Of the LOA dated 30th August 2016 and/or set aside the LOA dated 30 th August 2016 alloted to respondent no.2.
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(B) During the pendency and final disposal of this petition;
(i) Stay the operation, implementation and effect of the letter of cancellation dated 29th August 2016 (Copy at Annexure 'A' hereto).
(ii) Restrain the respondent from extending the term of the previous contractor any further and/or restrain the respondent from allotting the tender to the second highest bidder and/or restrain the respondent from reinviting the tender for the said service and /or restrain the respondent from either appointing or allotting the tender on a temporary or other basis and/or entering into any contract relating to this tender.
(iii) Allow the petitioner to start the execution of the contract as per the rate of Rs.480 per person/day for providing catering service and providing mechanized housekeeping services as per the scope of work defined in the bid document.
(C) Award costs of this petition;
(D) Pass such other and further orders may be deemed just and expedient."
2. The facts in brief as could be gathered from the memo of the petition and the written submissions of the parties deserve to be set out herein below for understanding the actual controversy between the parties.
2.1 The petitioner is a proprietorship firm and engaged in the business of Facility Management Services. The respondent ONGC floated tender No. ANK/MM/P4 (SERVICE) - RB/CATERING/02/2016 17/AI6RC16010 for hiring of services for Catering & Housekeeping Services at Muller Colony, CPF, Gandhar, North Gandhar Colony and GGS OLPAD OF SURFACE Section and At DSA Gandhar and DSA Dabka of Drilling Section of Ankleshwar Asset for a period of 3 years. The same Page 3 of 65 HC-NIC Page 3 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT tender was floated online from 6th May 2016 to 30th June 2016. According to tender details, the last date for submission of ebidding system was 30th June 2016 at 14:00 hrs and the date and time of opening of the ebid in the system was 30 th June 2016 at 15:00 hrs. As per the tender document the last date of physical documents and for opening of physical documents was 7th July 2016 at 14:00 hrs and 15:00 hrs respectively. The petitioner has submitted its Ebid on 28th June 2016 on ONGC Eportal. The petitioner has submitted its documents with its letter dated 27th June 2016.
2.2 The tender comprised in two parts viz. providing catering services and providing mechanized housekeeping services as per the scope of work defined in the bid document and the price bid consisted of three components namely;
(i) AA = { providing Catering services as per the Scope of Work defined in bid document per person per day (A) + providing Mechanized Housekeeping Services as per the Scope Work defined in bid document per person per day (B)} X 615 (no. of persons) X 365 (no. of days in a year) X 3 (three years);
(ii) BB = (rates for extra/optional items) per plate/per serving/bottle basis; and
(iii) CC = (Providing Special Meals as per the Scope of Work defined in bid document) per person basis.
The said items were submitted by the petitioner in the prescribed format as per the requirement of ONGC. The petitioner quoted the total price of Rs.480 on per day basis consisting of Rs.420 per person per day for providing catering services and Rs.60 for providing Page 4 of 65 HC-NIC Page 4 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT mechanized housekeeping services per person per day for a period of 1095 days for a minimum of 615 persons towards AA, Rs.220 per plate/per serving/bottle basis for BB and Rs.450 per meal per person basis for CC. The tender document also comprised of tender as well as the integrity pact, which was also required to be accepted and signed by the bidders.
2.3 Thereafter on 24th August 2016, the respondent issued a Letter of Award (LOA) to the petitioner mentioning the total calculated contract value for 3 years at Rs.49,50,030/. The respondent calculated the total price at Rs.49,50,030/ as against Rs.32,81,93,550/. Pursuant to the above, the office of the respondent issued LOA dated 24th August 2016 with the above figure of Rs.49,50,030/ and asked for a bank guarantee of Rs.1,65,000/. In the said LOA the petitioner was required to mobilize complete manpower, material along with equipment, etc. for commencement of services at the specified location by 1st September 2016 and start services w.e.f. 2nd September 2016 (00:00) i.e. from 1st September 2016 midnight.
2.4 Immediately upon receipt of the said LOA the petitioner vide its email dated 25th August 2016 brought to the notice of the respondent that the total contract value has been wrongly calculated by taking contract value under AA for 3 years as only Rs.480 actually were charges for Catering & Housekeeping per person per day. It was also requested by the petitioner to the respondent to issue amended LOA after correcting the contract value and the amount of performance bank guarantee. In response to the aforesaid email, the respondent vide its e mail dated 25th August 2016 stated that the total AA has been indicated by the petitioner as Rs.480 in the price format which was considered by ONGC and requested to arrange and execute the contract as per conditions of LOA.
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2.5 The petitioner vide its email dated 25th August 2016
clarified the issue that the petitioner has quoted Rs.420 per head/day under RowA and Rs.60 per head/day under RowB and the formula for calculating AA is (A+B) x 615 x 365 x 3 where 615 is the minimum no. of persons to whom the services would be provided to 365 is the no. of days in a year and 3 is the no. of years (tenure of the contract) and the same is to be calculated by the respondent accordingly. It was also further clarified that the sum of Rs.480 as mentioned under Column3 is a total of the amount mentioned under RowA (Catering Charges) and RowB (Housekeeping Charges), which is for per head/day only. In the said email, the petitioner also raised a question as to how the respondent considered the contract value for three years for 615 persons as only Rs.480, when the petitioner are quoting Rs.420 as catering charges per head per day and Rs.60 as mechanized housekeeping service charges per head per day. It was also pointed out in the said email that the respondent in case of BB and CC has placed the value in formula instead of taking the contract value as Rs.220 and Rs.450 for three years, respectively.
2.6 The petitioner also wrote a detailed letter dated 25th August 2016. It was pointed out in the said letter that the amount mentioned in the third column as Rs.480, as sum of catering and Housekeeping per head per person which incidentally fell against the total contract value AA which has been taken by the tender committee as the contract value for 3 years for 615 persons without calculating as per formula. The petitioner put Rs.480 as the sum of RowA & RowB at the bottom of 3 rd column which respondent took as the contract value under AA.
2.7 The petitioner vide email dated 26th August 2016 questioned the fact that how could the tender committee consider the contract value for 615 persons for 3 years to be Rs.480 and why the Page 6 of 65 HC-NIC Page 6 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT value in case of BB and CC was put in the formula and left out in case of AA.
2.8 Thereafter respondent issued a letter dated 29.08.2016 cancelling the LOA dated 24th August 2016. On receipt of the aforesaid letter, the petitioner sent an email dated 30th August 2016 inter alia stating that the petitioner never said or communicated that they will not start the work w.e.f. 2nd September 2016 and also stated that in all the communications of the petitioner after issuance of LOA in favour of the petitioner, raised the logic of arriving at the contract value under the head - AA by tender committee and have sought clarification as to how the payment would be regulated as bills would be raised on the basis of rates per head/day for housekeeping in AppendixI and as per Appendix III, IV & V for catering which is given and accepted by the respondent in the LOA. Hence, this petition.
3. The learned counsel for the petitioner has filed the written submissions, which are reproduced in verbatim from paragraph no.4 as under : "4.The grounds on which the said petition is filed are briefly stated as under :
a. Letter of Award dated 24.08.2016 awarded to the petitioner (Annexure - B at page 16 of the petition).
→ In the note (c) below AppendixI, clearly states that the number of persons (part of the formula for AA) indicated above is for purpose of evaluation only and that the same may increase / decrease every day, based on the operational requirements and also that the payment will be made on actual volume of service provided. Therefore it can be said that the formula was to be filled up just for evaluation purpose only and for no other purpose and that the same would have no bearing at the time Page 7 of 65 HC-NIC Page 7 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT of billing.
→ Further in the note (1) below AppendixIII, it is clearly stated that the aforesaid breakup of rates will be applicable for persons consuming individual items. From this it can be easily concluded that the rates mentioned in AppendixIII are substantive part of the price bid and the total of AA is only for evaluation purposes.
b. Clarification as per clause 24.2 of the Tender Document (AnnexureD at page 20 of the petition, relevant clause at page 48) → The respondent in view of the clause 24.2 of the Tender document could have sought clarification regarding the unit price or the total price quoted by the respondent. By doing so and by correcting the same, the substance of the bid could not have been changed as the petitioners were to raise their invoice based on the rates for the items mentioned in AppendixIII of the Price Bid Format (page 154) submitted by the petitioner which is the very substance of the bid.
c. Manual of Purchase and Procedures for Purchase of Goods (AnnexureK at page 175 of the petition) → The respondent failed to act in accordance with the said Manual issued by the Finance Secretary on 31/08/2006, which is in force till date and that the action of the respondent is in contravention of Clause 11.2.3 (a) (at page 177 of the petition) of the said Manual.
→ It is relevant to point out that during the course of the hearing the petitioner had tendered a copy of a Tender document floated by the respondent for the same type of services at Panvel. It is pertinent to note that the said document was for sale from 30/08/2016. (On the very next day after the LOA was cancelled by the respondent. At internal page 122 of the said Tender Document ClauseE.1 (iii) it clearly reflects Page 8 of 65 HC-NIC Page 8 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT what is mentioned in the aforesaid Manual. Even on the last page of the said document in Note no.5 the same is reiterated.
→ The argument of the respondent is that the aforesaid Manual is not binding and that the respondent even wishes to accept the clarification of the petitioner than also the Integrated materials Management Manual issued by ONGC ("IMMM") does not permit any clarification or correction. Assuming without admitting that even if the said Manual is not binding on the respondent than also it cannot be said that the IMMM does not give power to the respondent to correct its bid, as looking at the tender conditions floated by the ONGC for Panvel area, it clearly shows that in case of any discrepancy is found in the total quoted price and its breakup prices, the evaluation shall be done as per the corrected amount duly worked out by ONGC based on Unit Rate quoted by the bidder. This clearly goes to show that the power to do so in the Panvel Tender comes from the Manual and that if the same can be done in the Panvel Tender than the respondent could have done the same in the tender awarded to the petitioner. Therefore, it is clear that the ONGC has such powers but chose not to exercise the same in view to favor the existing contractor and with a view to make sure that the petitioner could never participate in future tenders issued by the respondent or any other tenders floated by any other authorities.
d. Integrity Pact (AnnexureD at page 157 to the petition) → The respondent is also in clear breach of the Integrity Pact more particularly clause 1(1)(2) (at page 158) which mandates the principal to treat the petitioner with equity and reasons. The action of the respondent in issuing the LOA for providing food and for providing housekeeping services to 615 people for 1095 days at a consolidated sum of Rs.480, lacks all possible reasoning and equity.
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e. Integrated Materials Management Manual issued by ONGC (IMMM) (AnnexureM at page 188 to the Additional Affidavit filed by the petitioner) → The respondent ignored its own manual more particularly clause 14.1.1 (at page 189) which clearly states that if the rates of L1 bidder are substantially high as compared to cost/estimates or Last Purchase Rates or not in line with the price trend prevailing in the market, a decision shall be taken as to whether price negotiation need to be conducted. Therefore, it is clear that even as per their own manual that if the price quoted by the L1 Bidder seems to be not in line with the price trend in the market then, it the Respondent shall be duty bound to call upon the petitioner and seek clarification, which the respondent failed to do so in this case.
f. High ended Action of the respondent during the period from issuance of LOA and thereafter.
(i) Invitation for Board Purchase even before cancellation of the LOA:
→ On the very next day of issuing of LOA to the petitioner, before cancelling of the LOA, the respondent started process of inviting quotation for Board Purchase. The respondent, before the cancellation also received quotation from only one Company who was a L03 in the bid and was a current contractor at a much higher rate then quoted by the same company in the current tender. The respondent also started negotiations with the existing contractor and even before cancellation of the LOA decided to award the contract for a period of six months at a much higher cost what was quoted by the petitioner and was also at a much higher rate then what was quoted by the same contractor in the Tender proceedings. It is pertaining to note that the entire process of board purchase was completed during the existence of the LOA issued to Page 10 of 65 HC-NIC Page 10 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT the petitioner and also at a much higher rate than quoted by the petitioner causing a loss of more than Rs.20,00,000/ approximately (by approximately more than 25%) to the public exchecker with a period of 6 months and the said action of the respondent prima facie reeks of malice.
(ii) Procedure for Board Purchase :
→ The respondent failed to follow the procedure of Board Purchase as per their own manual. As per the manual the respondent should have called for quotation, the respondent should have called from multiple people/companies, which are located, near the proximity where the said scope of work is required to be executed. However, the respondent received only more quotation and on that basis the board purchase was made.
→ The Procedure for Board Purchase as per the manual should be taken only in exceptional circumstances during extreme urgency. Even as per their own terms and conditions of the tender document, as amended (AnnexureN page 197), the definition of mobilization period reads as under :
"Mobilization period : Since, existing contract is expiring on 01.09.2016, the contractor shall be required to mobilize complete manpower, material along with equipment etc. for commencement of services at the specified locations by 01.09.2016 and start services w.e.f. 02.09.2016 (00:00 Hrs) 31.08.2016, contract will be given 07 days' time for completion of mobilization."
Therefore, even as per the aforesaid definition, one can easily imply that, the respondent was prepared to make some alternative arrangement on their own from the date of end of term of the previous contract for a Page 11 of 65 HC-NIC Page 11 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT minimum period of 7 days, if the contract is placed on/after 31/08/2016 as the successful bidder was given 7 days time for completion of mobilization.
e. Internal Documents produced by the respondents. i. Minutes of meetings of the TC held on 23/08/2016 (at page
280) & 25/08/2016 (at page 209).
→ In the minutes of the meeting by the tender committee dated 23/08/2016 (at page 281) the TC has calculated the actual evaluated price on its own and has further gone to state that there was an apparent mistake by the bidder as the bidder has not multiplied the sum by the multiplier. The TC has even stated that even if the same is corrected and the correct value of AA is worked out the bidder would be still L1 and his total evaluated price would still be the lowest.
→ In the same minutes on page 282 the TC has evaluated the financial criteria's subsequent to opening of the price bids on the basis of the correct/ intended value of the tender i.e. an amount of Rs.32,81,93,550/. The TC in the said meeting has approved the financial criteria of the petitioner based on the correct evaluated price and not the evaluated price on which LOA was issued.
→ Further, the Rate Reasonability was considered at Rs.480/ per person per day and that the TC had arrived at a conclusion that the rate of Rs.480/ per person per day can be considered as reasonable.
→ In the minutes of the TC dated 25/08/2016 also the TC has made an observation that the corrected value if worked out, the petitioner would still be L1. The TC also observed that there is no provision in IMMM for seeking any clarification subsequent to opening of price bids and clarification worth regard to workability and hence the LOA was awarded at Rs.49,50,030/. The said observation of the TC is false, Page 12 of 65 HC-NIC Page 12 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT erroneous and baseless in view of what is stated herein above.
→ During that meeting, the TC has even gone to the extent of recommending the petitioner for putting on holiday for nonperformance of LOA. This clearly shows the intention of the respondent, to favor the current contractor i.e. the respondent no.2 herein and to ensure that the petitioner is debarred from participating in the future tenders issued by the respondents.
ii. Proceedings of minutes of Board of Officers held on 25/08/2016 (at page 215), 29/08/2016 (at page 222) & 30/08/2016 (at page
225) → The respondent by the said minutes has decided to award the contract for 6v months by way of Board Purchase to respondent no.2 herein, who was also the previous contractor.
→ In the meeting held on 25/08/2016, has worked out the financial implication for a period of 6 months considering the current tender. It is pertinent to note that the respondent has for calculating the financial implication for 6 months has compared with the rate of Rs.32,81,93,550/ being the amount quoted by the petitioner and not the amount of which the LOA was issued to the petitioner.
→ In awarding the work by Board Purchase the Board has for the purpose of deciding the rate reasonability has considered the amount of Rs.32 crores (approx.) rather than amount of Rs.49 lacs (approx.).
iii.Invitation for Bid issued by ONGC for Board Purchase (at page
235):
→ The respondent in the invitation for Board Purchase in Appendix1, the price bid format (at page 238) has mentioned that the total AA would be worked out by ONGCV and that the bidders would be required Page 13 of 65 HC-NIC Page 13 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT to till up only the substantive price quotes.
iv. Proposal for administrative approval and expenditure sanction through board purchase (at page 294) :
→ In the said proposal it is clearly stated by the respondent that the petitioner has quoted the lowest rate and that if the grand total AA is corrected the same would be Rs.32,32,44,000/. The respondent has further gone to state that the evaluated price for 3 years i.e. Rs.49 lacs (approx.) (as awarded is exorbitantly low than the corrected evaluated price of Rs.32 crores (approx.)).
f. Loss to the Public Exchequer : The respondent chose to award the contract to the respondent no.2 herein by Board Purchase at a much higher rate that was quoted by him in the tender proceedings, where the petitioner was L1 and the respondent no.2 was L3. The respondent even failed to consider that the respondent no.2 therein, was the existing contractor and therefore the question of expenses for mobilization and other major expenses would not have to been incurred by the respondent no.2 and still with a view to enrich the respondent no.2 herein chose to award the contract at a much higher rate and thereby incurring additional expense of more than Rs.20 lacs from the pockets of the public exchequer.
g. The reply to the respondent's contention that there was no binding contract between the parties. The respondent has wrongly portrayed that there was no existing contract between the petitioner and the respondent no.1 and therefore, the respondent had right to cancel the award at any point before a contract entered into between the parties. ClauseEE & FF of the LOA (at AnnexureB at page 16, relevant at page 18) it is clear that the scope of work and all T & C's of the contract shall be as per the tender document and that the LOA shall be binding contract till signing of the formal contract. Therefore, the Page 14 of 65 HC-NIC Page 14 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT respondents arguments miserably fails from their own document and that the issuance of LOA would itself be considered as a binding contract between the parties and that the same cannot be terminated or cancelled without assigning any reasons or without giving an opportunity of hearing to the petitioner.
h. Judgments relied on by the petitioner.
(i) The Hon'ble High Court of Punjab and Haryana (Coram: Hon'ble Mr. Justice J.S. Khekar and Hon'ble Ms.Justice Nirmaljit Kaur) has held in SAB Industries Limited V. State of Haryana and Ors. [C.W.P. No.970 of 2008] that "The error, as pointed out by the petitioner was also a similar patent error on the face of record and a bonafide human error. No bidder would quote such a ridiculously low rate. Thus, the petitioner should have been allowed to correct this error instead of rejecting the same by mechanically applying Clause 25 of the bid document. The respondents, in this case, have done nothing but taken a very hypertechnical view of the clause and have wrongly applied the same by not permitting the correction which was an error on the face of it and not an arithmetical error."
In the aforementioned judgment, the Hon'ble High Court also placed reliance on a judgment of the Hon'ble Supreme Court of New Jersey in Spina Asphalt Paving Excavating Contractors, Inc. V. Borough of Fairview [304 NJ Super 425] and observed as follows : "The error was allowed to be corrected which was erroneously mentioned as 400 dollars instead of 4 dollors. It was held that the error in the bid was nonmatrial and subject to waiver. The error was considered as patent and the failure to waive the deviation would thwart the public bidding laws."
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Lastly, the Hon'ble High Court was pleased to observe that "the failure of the respondents to correct a bonafide clerical error which was apparent on the face of it has led to the frivolous litigation. The petitioner shall be accordingly entitled to its cost which is quantified as Rs.50,000/."
(ii) The Hon'ble High Court of Delhi (Coram : Hon'ble Mr. Justice Sanjay Kishan Kaul and Hon'ble Mr. Justice Vipin Sanghi) in the case of M/s. Supreme Infrastructure India Limited V. Rail Vikas Nigam Limited and Anr. [W.P.(C.) No.3817/2012] held that -
"If the process of evaluation of bids is to be done so mechanically as done in the present case, and without the use of mental faculties, intellect and exercise of human discretion, the exercise could have been left to be completed by machines/computers. However, that is not done because, in the matter of evaluation of bids in a tender process, the employer - particularly when it is a public body dealing with public funds, is expected to function and conduct itself with reasonable prudence expected of any common man in the business. The employer cannot get bogged down by the literal rule, even if there be one (which we do not find in the present case), and throw to winds the basic common sense approach and shut its eyes to such obvious errors, to defeat not only the rights of a deserving bidder, but also sacrifice interest in the process. Respondent no.1 has failed to prudently exercise the discretion vested in it by the tender conditions to deal with the aforesaid situation."
5. The Letter of Cancellation of LOA does not explain the cause of cancelling the same and thus the said Letter is erroneous, bad in law and issued with a malafide intention and thus deserves to be quashed and set aside by this Hon'ble Court.
6. Therefore, in view of what is stated herein above and in view of the pleadings and documents produced before this Hon'ble Court, the prayers Page 16 of 65 HC-NIC Page 16 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT as prayed for by the Petitioner is required to be allowed. The petitioner also states that such action of the respondent requires serious investigation upon the officers who were the part of the TC and the officers who were the part of the Board Purchase. Such a conduct of the officers of the Respondent should be curtailed and the hidden motive behind the said action should be brought before the people whose hard earned money is blownoff in order to enrich either themselves or to a particular set of people.
7. The petitioner also submits that the respondent no.1 and its officer's incharge of such decision/action should be saddled with heavy costs/penalties.
8. The petitioner also prays to this Hon'ble Court that the respondent no.1 may not be allowed to go for retendering for the following reasons :
a. In this Special Civil Application, the petitioner has impugned the cancellation of its LOA and not the tendering process. Therefore, the issue at hand is whether the cancellation of the LOA of the petitioner was valid or not. Thus, if such cancellation is deemed to be invalid the petitioner ought to be reinstated as L1 and be granted an LOA at the corrected price of Rs.32,81,93,550/ for a period of 3 years and the respondent no.1 may not be allowed to go for retendering.
b. Sets a dangerous precedent by conveniently allowing the respondent to bypass the tender process and grant the tender to a favorable party (L2/L3) by going for retendering."
4. The learned counsel for the respondent no.1 has filed the written submissions, which are required to be reproduced in verbatim as under : Page 17 of 65 HC-NIC Page 17 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT
1. It humbly submits that the present petition and the reliefs as prayed for by the petitioner are misconceived and without any basis either in law or in facts. It is also submitted that the petitioner has not come out with complete and accurate facts and circumstances of the case, rather has presented before this Hon'ble Court totally distorted, incomplete and false facts.
2. That the petitioner inter alia has prayed for quashing and setting aside the cancellation of the Letter of Award (LOA) No. ANK/MN P4 (SERVIE) - RB/CATERING/02/20 1617/A16RC16010 dated 24/08/2016 vide its letter dated 29/08/2016. (Copy at Annexure "A" hereto) against ONGC etender No. ANK/MM P4 (SERVICE) - RB/CATERING/02/201617/A16RC16010 for hiring of services for Catering & Housekeeping Services at Muller Colony, CPF Gandhar, North Gandhar Colony and GGS Olpad of Surface Section and at DSA Gandhar and DSA Dabka of Drilling Section of Ankleshwar Asset for a period of 3 years for short "Tender) and for restraining the Respondent from extending the work of the previous contractor on the grounds interalia that the said action of the Respondent in calcelling the LOA is arbitrary, capricious, colourable exercise of power and in violation of Article 14 and 19 of the Constitution of India.
Facts of the case:
3. It is submitted that the Respondent ONGC, floated tender No. ANK/MN P4 (SERVIE) - RB/CATERING/02/20 1617/A16RC16010 for hiring of services for Catering & Housekeeping Services at Muller Colony, CPF Gandhar, North Gandhar Colony and GGS Olpad of Surface Section and at DSA Gandhar and DSA Dabka of Drilling Section of Ankleshwar Asset for a period of 3 years. That the said tender was floated online for the given time frame i.e. from Page 18 of 65 HC-NIC Page 18 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT 06.06.2016 to 30.06.2016, for ebidding, last date of submission of e bidding was 30.06.2016 and the last date of submission of physical document was 07.07.2016. That, the Petitioner herein submitted the bid for providing services to Respondent within due date and time.
Furthermore, as per the tender conditions Petitioner also submitted physical documents duly signed within due date and time.
4. It is submitted that, Tender issued by the corporation comprised of two parts, for providing catering services and providing mechanized housekeeping services. The price bid consisted of three components : (i) AA (ii) BB and (iii) CC, the Petitioner duly submitted and quoted the total price of :
"i. AA = Rs.480/ (Rs. 420/ for catering services and Rs. 60/ for mechanized housekeeping) for the period of 1095 days for minimum of 615 persons.
ii. BB - Rs.220/ per plate / per service / bottle. iii. CC - Rs.450/ per meal per person.
5. It is submitted that, on 24.08.2016, Letter of Award "LOA" was issued to Petitioner by the Respondent with a price of Rs.49,50,030/ (which was lowest amongst all bidders) and which was calculated as per the figures provided by the petitioner. The Respondent corporation also asked for a bank guarantee of Rs.1,65,000/ and asked the petitioner to provide the services from 02.09.2016 (00.00 hrs) . That on 25.08.2016, petitioner through an email informed the Corporation requesting to amend the LOA amount along with the amount of bank guarantee. That the said email was responded by the corporation by which the petitioner was asked to execute the contract as per the conditions of LOA as per the price submitted by him. That despite series of communication the petitioner continuously refused to perform the contract as per the price quoted by him resulting into approval of cancellation of LOA by EDAM Page 19 of 65 HC-NIC Page 19 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT (Executive Director - Asset Manager) on 25.8.16 and in pursuance to approval of EDAM (Executive Director, Asset Manager) LOA was cancelled and same was informed to petitioner on 29.08.16 due to preoccupation with other jobs and 27.08.2016 and 28.08.2016 being Saturday & Sunday. The statement of petitioner in the written submission that 25.08.2016 was a holiday and ONGC arranged Tender Committee meeting on holiday is not correct as it was working day for ONGC, Ankleshwar. That a separate Board hiring (through a Board of Officers as per ONGC's Integrated MM Manual Para 8.9 Page 290 of petition) was done for a period of 6 months (with a foreclosure clause for closing the contract on 1 month notice) to take care of the immediate requirement and re invitation of tender was approved by Director on 31.08.16. The copy of the noting wherein decision to cancel the LOA was taken is annexed with affidavit in reply as "Annexure - R1"
6. It is submitted that since the earlier contract was expiring on 01.09.2016, a fresh contract was required to be made available from 02.09.2016 (0000 hrs) i.e. 01.09.2016 midnight. Considering that oilfield services are essential services & non providing catering & housekeeping services to field people will disrupt in operations leading to IR (Industrial Relations) problem and affecting exploration and production of hydrocarbons leading to heavy loss to the nation, a separate Board hiring was done for a period of 6 months (with a foreclosure clause for closing the contract on 1 month notice) to take care of the immediate requirement. It would also be pertinent to note that the area where the services are to be provided, are at remote location and none of the other alternative options were viable and practical. Thus, considering the necessity, parallel action was needed to be taken considering the time involved in the tender process. However, LOA against Board Hiring Contract was awarded after due deliberations, approval and after cancellation of LOA of the petitioner.
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Moreover, the Board Hiring contract was awarded with a onemonth foreclosure notice. Thus, it is an interim / stop gap arrangement only and not a long term contract.
7. It is submitted that as per price bid, bidder was quoted AA = Rs.480/ BB = Rs.220/ and CC - Rs. 450/. Hence, its total evaluated price "DD" (DD= AA+ (BB X 3795 X 3 years) + (CCX1811X3 years) worked out as Rs.49,50,030.00 From above, it would be clear that M/s. Superior Securities, New Delhi has indicated 'AA' in Appendix - I as Rs.480.00 Further bidder has quoted BB as Rs.220.00 and CC as Rs.450.00 Hence taking 'AA' as Rs.480.00 as quoted by the bidder as per BEC Clause indicated above, its total evaluated price 'DD' (DD= AA+(BBX3795X3 years)+ CCX1811 years)) shall become Rs.49,50,030.00. That thereafter based on the communication of the bider subsequent to issue of LOA as brought out above, TC held on 25.08.2016 construed as refusal to accept the LOA, TC has recommended the following, in terms of various provisions of IMMM and Terms and Conditions of subject tender document:
(i) No cognizance may be given to the communication of the party M/s. Superior Securities, New Delhi;
(ii) To cancel the LOA dated 24.08.2016, issued to M/s.
Superior Securities, New Delhi.
(iii) To reinvite the tender for Hiring of Catering & Housekeeping Services at Muller Colony, CPF Gandhar, North Gandhar Colony, and GGS Olpad of Surface Section and DSA Gandhar and DSSA Dabka of Drilling Section of Ankleshwar Asset for a period of three years.
(iv) To initiate the action against the bidder M/s.
Superior Securities, New Delhi for putting on holiday in terms of Para 18.6 Consequence of termination in Page 21 of 65 HC-NIC Page 21 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT Annexure - II (Model Contract and General Contract Condition) at Page 52 of eTender Document and in terms of Integrated MM Manual Para 17.5.2."
8. It is submitted that after approval of CPA (Competent Purchase Authority) i.e. EDAM (Executive Director - Asset Manager), the LOA has been cancelled on 29.08.2016. Recommendation at 3 regarding reinvitation has been approved by Director (Onshore) on 31.08.2016 and fax copy of approval received on 01.09.2016. Hence, canceling the LOA was as per tender conditions and prevailing practice of the Corporation. Further, the services of previous contractor have not been extended. The earlier contract was expiring on 01.09.2016 and fresh contract was required to make available from 02.09.2016 (00:00 hrs.) i.e. 01.09.2016 midnight. Considering that oilfield services are essential services & non providing catering & housekeeping services to field people will disrupt in operations leading to IR (Industrial Relation) problem and affecting exploration & production of hydrocarbons leading to heavy loss to the nation, a separate Board hiring was done for 6 months period (with a foreclosure clause for closing the contract on 1 month notice) to take care of the immediate requirement, as an interim / stop gap arrangement. The date of commencement of services through Board Hiring Contract is 02.09.2016 (0000hrs.) and not 02.08.2016 as mentioned in the written submission of the petitioner. Thus, the actions taken in this regard were all purely due to the need of the hour and the immediate requirement and with a view to avoid heavy loss to public exchequer in case of disruption of operations in production of Hydrocarbons if continued services not provided. It would also be pertinent to note that the area where the services are to be provided, are at remote location and none of the other alternative options were viable and practical.
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9. Regarding mobilization period as mentioned in the written submission of petitioner, the mobilization period modified after pre bid conference and before tender opening, which was accepted by the petitioner also, as stipulated as under : Mobilization period : Since, existing contract is expiring on 01.09.2016, the contractor shall be required to mobilize complete manpower, material along with equipment etc. for commencement of services at the specified locations by 01.09.2016 and start services w.e.f. 02.09.2016 (00:00 Hrs.) i.e. 01.09.2016 midnight. In case LOA is placed on/after 31.08.2016, contract will be given 07 days' time for completion of mobilization.
Thus, in case of LOA being placed on or after 31.08.2016 only, action was required to be taken to take care of the 7 days time given for mobilization. In this case, after finalization of regular open tender, LOA was placed on 24.08.2016 itself. However, since it failed, parallel action through board hiring was taken to ensure continuity of services to field personnel.
Arguments of the Respondent Corporation :
10. Writ petition in Contractual Matters : That, it is a settled legal proposition that matters/disputes relating to contract cannot be agitated nor terms of contract can be enforced through writ jurisdiction under Article 226 of the Constitution. Thus, a writ Court cannot be a forum to seek any relief based on terms and conditions incorporated in the agreement by the parties. The respondent corporation relies on decision passed by the Hon'ble Supreme Court of India in the case of Rajasthan State Industrial Development and Investment Corporation V/s. Diamond and Gem Development Corporation reported in 2013 (5) SCC 470. The answering Page 23 of 65 HC-NIC Page 23 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT respondent Corporation also relies on a decision of this Hon'ble Court in the case of Assistant Excise Commissioner V/s. Issac Peter reported in 1994 (4) SCC 125 and Tata Cellular V/s. Union of India reported in 1994 (6) SCC 651.
11. It is submitted that the corporation relies on clause 32 of the tender which gives the corporation right to reject all or any of the bids. For the convenience of this Hon'ble Court the said clause is reproduced herewith : "32 ONGC's RIGHT TO ACCEPT ANY BID AND TO REJECT ANY OR ALL BIDS.
32. ONGC reserves the right to reject, accept or prefer any bid and to annual the bidding process and reject all bids at any time prior to award of contract, without thereby Incurring any liability to the affected Bidder or Bidders or any obligation to inform the affected Bidder or Bidders of the ground for ONGC's action. The ONGC also reserves to itself the right to accept any bid in part or spilt the order between two or more bidders."
It is submitted that, though such clause is existing on ONGC's Tender Document (which was issued to the firm and the firm has given undertaking in the ebid that he has accepted the all terms and conditions), the aforesaid clause 32 has not been operated. ONGC has not rejected the offer of M/s.Superior Securitas, New Delhi and ONGC awarded the contract on M/s. Superior Securitas, New Delhi, as per their quoted/indicated rates.
12. It is submitted that the action of the respondent corporation was taken as per tender condition and prevailing practices. It is submitted that there is no question of any clarification as the bid of Page 24 of 65 HC-NIC Page 24 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT the petitioner being the lowest was accepted by the corporation and if the petitioner is not willing to perform his promise then the corporation has no option but to cancel the LOA and proceed for re invitation of tender. It is respectfully submitted that cancellation of LOA is done as brought out above, as per guidelines/ practice. It is respectfully submitted that, the award was based on the quoted rate for AA as brought out above.
13. It is submitted that as stated earlier, there were four qualified bidders in the present case and all the four bidders, including the petitioner were well aware of the procedure to fill the bidding forms. That the price bid documents of all the four qualified bidders is annexed with the additional affidavit of the respondent corporation as Annexure R1 Colly. That pursuant to the opening of bidding the same was deliberated by the tender committee. The copy of the notings of deliberation by the tender committee is annexed with the additional affidavit of the respondent corporation as Annexure R2.
14. It is submitted that at the time of opening of bids, the representative of petitioner himself was present along with the other bides. That the petitioner has never raised any objection when the figure quoted by him was quoted in front of all the other bidders. It is only after the issuance of letter of award that the petitioner had started raising frivolous excuses for not performing the contract. The copy of the attendance sheet, showing that the representative of the petitioner was present at the time of opening of bids is annexed with the additional affidavit as Annexure "R2".
15. It is further submitted that the documents produced on page 175 at Annexure K have no relevance to the present case, as the Corporation only follows its own manual (Integrated MM manual) referred to on page 188, which has been approved by the ONGC Page 25 of 65 HC-NIC Page 25 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT board. That the argument of Malafide raised by the petitioner is without any substance as the sole reason for awarding the tender through board purchase was due to the fact that there was hardly any time between the refusal of the petitioner to perform the contract and the expiry of the earlier contract. It is submitted that if the aforesaid process was not carried out, the same would have ultimately resulted into heavy losses which would have resulted into Crores of rupees each day to the exchequer. Thus, the fresh contract awarded is through a separate Board Hiring and not by extension of existing contract.
16. It is submitted that the petitioner has placed reliance on clause 24.2.1 at page 49 of the petition that the purchaser may at its discretion ask the bidder for clarification/confirmation deficient documents of bid, however such an argument cannot be accepted because the clarification/confirmation can only be called from the bidder when there is deficiency in the documents provided by the bidder.
For example in a bid if the bidder has stated that he has 5 years of experience and had produced the documents relating to that of 3 years, in such a situation, the purchaser i.e. respondent corporation can call for clarification/confirmation from the bidder.
17. It is further submitted that the aforesaid argument of petitioner does not hold any water for a reason that the second part of the same clause specifies that if the bidder is called for clarification and thereafter the purchaser respond back with reason for it, under such circumstance "no change in the price of substance of the bid shall be sought or permitted". As any clarification in this regard would lead to change in price of substance and this tender condition prohibits the same, no clarification could be sought and evaluation Page 26 of 65 HC-NIC Page 26 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT was done as per amount indicated/ quoted by the bidder as per various appendices and methodology as mentioned in the tender, which were accepted by the petitioner also.
18. It is submitted that the petitioner had further placed reliance on clause 26.1 at the page 49 of the petition wherein the petitioner has argued that ONGC has to examine the bids to determine whether they are complete, whether any computational errors have been made, whether required sureties have been furnished, whether the documents have been properly signed and whether the bids are generally in order.
In response to this it is submitted that the manual of the ONGC duly approved by the board members only requires that the bid submitted is in prescribed format without any deviations. It is submitted that as no such discrepancy was found in the bid document and as the same was in the prescribed format, the question of raising any objection did not arise.
19. It is submitted that the petitioner has placed reliance on clauses relating to evaluation of bids and its scrutiny by the ONGC however, it is submitted that the bid submitted by the petitioner was in prescribed format and there was no anomaly with the details provided by the petitioner, the respondent corporation could not have rejected the same as the offer was lowest of all.
20. Regarding the reference of ONGC Panvel Tender, respondent's counsel during arguments stated that being the concluding part of argument, it may not be taken into record. However, in the written submission by the petitioner, again the same is mentioned. In this regard, it is submitted that Integrated MM Manual and the Tender Document conditions from the basis for evaluation and award. Based on experience, and with a view to avoid lack of clarity, certain Page 27 of 65 HC-NIC Page 27 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT conditions might be incorporated in the local level, with appropriate approvals, in the tender as improvement in the initial stage itself (i.e. before tender opening). In the board hiring tender also, the total amount was indicated to be worked out by ONGC to avoid the problem. But, the petitioner's allegation that ONGC chose not to exercise is to prevent them in ONGC/ other tenders is totally meaningless and baseless as the ONGC tender conditions are common to all bidders and being open tender any bidder can be L1. Moreover, any such clause/ conditions can be executed only if originally incorporated in the tender itself, which are issued to all the bidders.
21. It is submitted that the petitioner has placed reliance on para 12.1.1 of IMM manual page 189 of the petition wherein it is stated that the tender committee shall be required to establish and certify the reasonability of rates of L1 bidder.
In response to this it is submitted that the said provision were modified with effect from 28/04/2015 wherein the tender committee was not required to work on the workability of the rates of L1 bidder. It is submitted that as bid was processed after the modification in the IMM manual it is the modified manual which will be applicable to the petitioner's case.
22. It is submitted that before the modified provision of the ONGC IMM manual para 14.1.1 reasonability rate should be sought only when the rates received in L1 bid is more than cost estimate and if L1 rates are lower than 85% of estimate workability need to be established by seeking clarifications etc. It is submitted that subsequently on 28042015 by circular no.17/2015 cum IMMM amendment MM/04/2015 workability provisions were deleted. It is submitted that in the present case reasonability of rates was established as per the laid down procedure of ONGC by comparing Page 28 of 65 HC-NIC Page 28 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT with cost estimate, LPR (Last Purchase Rate) of Ankleshwar Asset and recently awarded contract of Rajahmundry Asset for similar services and various escalations. Further, the provision of reasonability of rate in para 14.1.1 of IMM manual for the cases not under the preview of tender committee and not dealt by MM are not relevant in this case as this case is finalized by tender committee. Lastly, concluding lines in para 14.1.1 of IMM manual says that a decision to go for price negotiation need to be taken only if L1 rate is subsequently higher. In this case, since the L1 rate was considered reasonable, no negotiation was considered and contract was awarded. It is further submitted that para 14.1.1 of IMM manual provides guidelines for negotiations only if rates are higher and does not provide for seeking any clarifications.
23. Regarding the petitioner's contention of binding contract between the parties, the respondent Corporation had awarded the LOA for performance of the Job as per the bid of the contractor. However, since the petitioner failed and neglected the same, the respondent Corporation has terminated the same. The fact of the matter is that the matter is contractual in nature and it well settled in catena of judgments that in a contract matter, this Hon'ble Court should not interfere under Article 226 of the Constitution of India.
24. It is submitted that the say of the petitioner that there is inconsistency between the ONGC management and the Finance department is incorrect as all the decisions including final decision dated 31082016 was also signed by incharge Finance and Accounts (I/c. F&A).
25. In light of the aforementioned facts and circumstances of the case, it is humbly submitted that the prayer of the petitioner be rejected and the present petition be dismissed."
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5. As against this learned counsel for the petitioner has filed additional written submissions, which are also required to be reproduced in verbatim as under : "1. On 23/12/2016 both the parties has exchanged their written submission. At the time of hearing, the Advocate for the respondent no.1 requested that the parties may be permitted to file an additional written submissions if required, after going through the written submissions tendered by the other side.
2. For the sake of brevity, the petitioner herein is not dealing with the entire written submissions and is denying each and every contention as submitted by the respondent no.1 in view of the written submissions to be filed by the petitioner and in view of the pleadings filed by the petitioner.
3. The petitioner files this additional written submission to specifically deal with para13 of the written arguments filed on behalf of the respondent no.1. The petitioner states that the facts stated in the said paragraph are completely false. The petitioner states that even during the course of the arguments, the Hon'ble Court orally directed the respondent no.1 to produce the copy of a screen shot or any proof showing as to which figures were disclosed to the bidders at the time of opening the bid which till date they failed to do so. The respondent no.1 has deliberately not produced such proofs and has only produced the copy of the attendance sheet. The petitioners during the course of the arguments stated that during the opening of the bid only the figures of (A+B), BB & CC were disclosed and the evaluated price bids of none of the parties were disclosed and therefore, the question the petitioner raising any objections during that period does not arise.
4. In view of what is stated herein above and in view of what is Page 30 of 65 HC-NIC Page 30 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT stated in the written submission filed by the petitioner and on the basis of the records available before this Hon'ble Court, the petitioner requests this Hon'ble Court that the prayers as prayed for in the petition be allowed with heavy costs."
6. The Court has heard learned counsel appearing for the parties and perused the documents produced on the record. In the first instance, as it appears from the controversy and facts mentioned hereinabove, there were total four qualified bidder's bid were taken for evolution by the respondent - ONGC. The bidder was required to specifically mention in the bid format the total evaluated price i.e. grand total indicated as 'DD' and the formula was again DD = AA + (BB x 3795 x 3 years) + (CC x 1811 x 3 years). The present petitioner under that column below Appendix - I has mentioned as under : (Appendix - I) PRICE BID FORMAT Sr. DESCRIPTION RATE IN RATE IN No. RUPEES PER RUPEES PER PERSON PER PERSON PER DAY DAY [IN WORDS] [IN FIGURES] (A) Providing Catering Services as per the 420 Four Twenty Scope of Work defined in bid document.
For Full Meals as defined in scope of work (Break - up of which is to be provided at Appendix - III) (B) Providing Mechanized Housekeeping 60 Sixty Services as per the Scope of Work defined in bid document.
GRAND TOTAL AA = [{(A) + (B)} x 480 Four Eighty
615 (no. of persons in total) x 365
(days) x 3 years].
Note : a) Bidder should quote firm prices as per the price bid format(s)
given in the tender document. Bidder should quote rates in
Indian Rupees.
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b) Quoted rate should be inclusive of all taxes, duties, levies etc.
Bidders should furnish the details of taxes, levies and duties etc., considered in the quoted prices in AppendixII of the priced Bid Format which will be used for the purpose of operating Change in Law provisions of the tender document.
c) Number of persons indicated above is for the purpose of evaluation only which may increase/decrease every day based on the operational requirements. Payment will be made based on the actual volume of services provided each day.
.Amit Kumar.
(Name/Signature & Seal of the bidder)
7. Thus, against the column grand total, the figure is mentioned and the grand total is not mentioned. As against this, the another bidder i.e. M/s. Saraf Corporation India Pvt. Ltd. has quoted as under : (Appendix - I) PRICE BID FORMAT Sr. DESCRIPTION RATE IN RATE IN No. RUPEES PER RUPEES PER PERSON PER PERSON PER DAY DAY [IN WORDS] [IN FIGURES] (A) Providing Catering Services as per the 482 Rs Four Scope of Work defined in bid document. Hundred Eighty Two For Full Meals as defined in scope of only work (Break - up of which is to be provided at Appendix - III) (B) Providing Mechanized Housekeeping 2.00 Rs Two Only Services as per the Scope of Work defined in bid document.
GRAND TOTAL AA = [{(A) + (B)} x 32,59,37,700.00 Rs Thirty Two
615 (no. of persons in total) x 365 Crore Fifty
(days) x 3 years]. Nine Lacks
Thirty Seven
Thousand
Seven
Hundred only
Note : a) Bidder should quote firm prices as per the price bid format(s)
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given in the tender document. Bidder should quote rates in
Indian Rupees.
b) Quoted rate should be inclusive of all taxes, duties, levies etc.
Bidders should furnish the details of taxes, levies and duties etc., considered in the quoted prices in AppendixII of the priced Bid Format which will be used for the purpose of operating Change in Law provisions of the tender document.
c) Number of persons indicated above is for the purpose of evaluation only which may increase/decrease every day based on the operational requirements. Payment will be made based on the actual volume of services provided each day.
For Saraf Corporation India Pvt. Ltd. - Deepak Saraf (Name/Signature & Seal of the bidder)
8. The another bidder i.e. M/s. Jyoti Hospitality Services Pvt.
Ltd. has quoted as under :
(Appendix - I)
PRICE BID FORMAT
Sr. DESCRIPTION RATE IN RATE IN
No. RUPEES PER RUPEES PER
PERSON PER PERSON PER
DAY DAY
[IN WORDS]
[IN FIGURES]
(A) Providing Catering Services as per the 568.86 Rupees Five
Scope of Work defined in bid document. Hundred
Sixty Eight
For Full Meals as defined in scope of work and Eighty
(Break - up of which is to be provided at Six Paise only
Appendix - III)
(B) Providing Mechanized Housekeeping 16.53 Rupees
Services as per the Scope of Work defined Sixteen and
in bid document. Fifty Three
Paise Only
GRAND TOTAL AA = [{(A) + (B)} x 39,42,16,260.7 Rupees Thirty
615 (no. of persons in total) x 365 5 Nine Crore
(days) x 3 years]. Forty Two
Lakhs Sixteen
Thousand
Two Hundred
Sixty and
Seventy Five
Paise Only
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Note : a) Bidder should quote firm prices as per the price bid format(s)
given in the tender document. Bidder should quote rates in
Indian Rupees.
b) Quoted rate should be inclusive of all taxes, duties, levies etc.
Bidders should furnish the details of taxes, levies and duties etc., considered in the quoted prices in AppendixII of the priced Bid Format which will be used for the purpose of operating Change in Law provisions of the tender document.
c) Number of persons indicated above is for the purpose of evaluation only which may increase/decrease every day based on the operational requirements. Payment will be made based on the actual volume of services provided each day.
.SANTOSH SHETTY (Name/Signature & Seal of the bidder)
9. M/s. Sai Hospitality Services has quoted as under : (Appendix - I) PRICE BID FORMAT Sr. DESCRIPTION RATE IN RATE IN No. RUPEES PER RUPEES PER PERSON PER PERSON PER DAY DAY [IN WORDS] [IN FIGURES] (A) Providing Catering Services as per the 448.61 Rupees Four Scope of Work defined in bid document. Hundred Forty Eight and Paise For Full Meals as defined in scope of Sixty One only work (Break - up of which is to be provided at Appendix - III) (B) Providing Mechanized Housekeeping 40.25 Rupees Forty Services as per the Scope of Work and Paise defined in bid document. Twenty Five Only GRAND TOTAL AA = [{(A) + (B)} x 32,92,10,545.50 Rupees Thirty 615 (no. of persons in total) x 365 Two Crore (days) x 3 years]. Ninety Two Lacs Ten Thousand Five Hundred Forty Five and Paise Page 34 of 65 HC-NIC Page 34 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT Fifty Only Note : a) Bidder should quote firm prices as per the price bid format(s) given in the tender document. Bidder should quote rates in Indian Rupees.
b) Quoted rate should be inclusive of all taxes, duties, levies etc. Bidders should furnish the details of taxes, levies and duties etc., considered in the quoted prices in AppendixII of the priced Bid Format which will be used for the purpose of operating Change in Law provisions of the tender document.
c) Number of persons indicated above is for the purpose of evaluation only which may increase/decrease every day based on the operational requirements. Payment will be made based on the actual volume of services provided each day.
...............
(Name/Signature & Seal of the bidder)
10. The aforesaid figures reflects only part of the components of the contract and the total value and the way it has been workedout could easily be understood by closely perusing the working paper produced at page no.280 in this compilation, which is O.N.G.C.'s working paper, part of the said working paper would explain in depth as to how the O.N.G.C.'s Tender Committee has evaluated the price bids. It is the part of page no.280 working paper, which is reproduced as under : "MINUTES OF THE TENDER COMMITTEE HELD ON 23.08.2016 TO CONSIDER OFFERS RECEIVED AFTER PRICE BID OPENDING FOR "HIRING OF CATERING & HOUSEKEEPING SERVICES AT MULLER COLONY, CPF GANDHAR, NORTH GANDHAR COLONY, AND GGS OLPAD OF SURFACE SECTION AND DSA GANDHAR AND DSA DABKA OF BRILLING SECTION OF ANKLESHWAR ASSET FOR A PERIOD OF THREE YEARS" AGAINST E TENDER NO. ANK/ MM/ P4 (SERVICES)RB/ CATERING/ 02/ 201617/ A16RC16010.
AA) CONSTITUTION OF TC :
1. GGMSurface Manager - Indentor
2. GM - HDS - Indentor
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4. DGM Incharge MM BB) BRIEF/BACKGROUND OF THE CASE :
1. Case pertains to Hiring of Catering Services for Drilling Services and Surface Team, Ankleshwar Asset for a period of three years."
TC held on 12.08.2016 had recommended for price bid opening of following offers being TACA :
i) M/s. Superior Securitas, New Delhi
ii) M/s. Saraf Corporation India Pvt. Ltd., Mumbai.
iii) M/s. Sai Hospitality Services, Mumbai.
iv) M/s. Jyoti hospitality Services Pvt. Ltd., Mumbai.
The above recommendations were approved by CPA on 12.08.2016 at NP 67.
2. Accordingly, Price bids were opened on 16.08.2016 of following bidders:
i) M/s. Superior Securitas, New Delhi
ii) M/s. Saraf Corporation India Pvt. Ltd., Mumbai.
iii) M/s. Sai Hospitality Services, Mumbai.
iv) M/s. Jyoti hospitality Services Pvt. Ltd., Mumbai.
3. Print out of eprice bids are placed at Sr..... in the file, C.S. prepared on 17.08.2016 and financial vetting of C.S. Carried out on 22.08.2016. Vetted CS by finance is placed at Sr.73.
4. File was sent to Indentor for ascertaining the reasonability of rates on dtd.17.08.2016, Indentor has furnished the reasonability of rates on 23.08.2016 (Sr.75).
5. RANKING OF BIDDERS :
Page 36 of 65HC-NIC Page 36 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT The Price Evaluation Criteria of this tender at BEC Para C.1.1(b) and (c) are as under : Quote
(b) ONGC will evaluate the priced offer based on filled in pricebid evaluation format (schedule of rates) in the tender document, of all technically & commercially acceptable bidders. To facilitate evaluation and comparison of the bids, bidders are requested to state their bid price strictly in accordance with the price format of the tender document.
ONGC may reject any bid where the pattern of prices indicated varis from the format.
(c) Evaluation shall be made as per "Total Evaluated Price i.e. Grand Total" quoted by the bidder of the Price Format at Annexure - V of Tender Document Unquote.
In the price bid format, "Total Evaluated Price i.e. Grand Total" is indicated as 'DD' and the formula is DD = AA + (BB x 3795 x 3 years) + (CC x 1811 x 3 years) "Total Evaluated Price i.e. Grand Total" as per vetted CS (Sr. 73) are as under :
M/s. Superior M/s. Saraf M/s. Jyoti M/s. Sai
Securities, New Corporation Hospitality Hospitality
Delhi, eRfx India Pvt. Ltd., Services Pvt. Service,
Response No.: Mumbai, eRfx Ltd. Mumbai, e Mumbai, eRfx
650054727 Response No.: Rfx Response Response No.:
65003531 No.: 650054836
650054459
Total evaluated
price i.e. DD = 49,50,030.00*
Grand Total = 33,60,07,740.00 40,10,19,180.75 33,37,56,220.50** AA + (BB x 32,81,93,550.00* 3795 x 3 years) + (CC x 1811 x 3 years)
a) *In case of M/s. Superior Securitas, New Delhi : the bidder has indicated quoted 'AA' in Appendix - I of Price format as under :
Page 37 of 65HC-NIC Page 37 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT Sr. DESCRIPTION RATE IN RUPEES RATE IN No. PER PERSON PER RUPEES PER DAY PERSON PER [IN FIGURES] DAY [IN WORDS] (A) Providing Catering Services as per the Scope of 420 Four twenty work defined in bid document.
For Full Meals as defined in scope of work (Break - up of which is to be provided at Appendix - III) (B) Providing Mechanized Housekeeping Services as 60 Sixty per the Scope of Work defined in bid document.
GRAND TOTAL AA = [{(A) + (B)} x 615 (no. 480 Four eighty of persons in total) x 365 (days) x 3 years] It seems that apparently by mistake, bidder while indicating 'AA' has not multiplied the sum of 'A' + 'B' by the multiplier (i.e. 615 x 365 x 3). Even if the same is corrected and correct value of 'AA' is worked out, the bidder is still L1 as his Grand Total / Total Evaluated Price i.e. Rs.32,81,93,550.00 is lowest. However, considering his quoted Grand Total 'AA' (i.e. Rs.480.00), total evaluated price 'DD' shall be Rs.49,50,030.00
b) ** In case of M/s. Sai Hospitality Services, Mumbai : as per price format bidders are to quote for catering charges per person per day at appendix - I and breakup of the same should be indicated at Appendix - III of Price Format. Appendix - III is for break - up rates and as per foot note 2 of Appendix - III, breakup of rates will be applicable for payment for persons consuming individual items. As per foot note 1 of Appendix - III, the sum total of all the items should be equal to the rate of providing catering services per person per day (A) quoted by the bidder as per Appendix - I of the price format. The bidder has quoted Rs.448.61 at Appendix - I and in Breakup of rates at Appendix - III, the summation of break - up comes out to be Rs.397.00. As per practice in vouge, evaluation is carried out with the higher value i.e. Rs.448.61, which is indicated by the bidder in Appendix - I. With this the total evaluated price 'DD' comes out to be Page 38 of 65 HC-NIC Page 38 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT Rs.33,37,56,220.50.
6. Financial Criteria. The price bids of the bidders were opened on the basis of their confirmation of meeting the Financial Criteria of BEC. Subsequent to opening of price bids, a comparison of offers is made as under (Sr. 74) :
BIDDER M/s. Superior M/s. Saraf M/s. Jyoti M/s. Sai Securities, New Corporation Hospitality Hospitality Delhi, eRfx India Pvt. Ltd., Services Pvt. Ltd. Service, Response No.: Mumbai, eRfx Mumbai, eRfx Mumbai, eRfx 650054727 Response No.: Response No.: Response No.:
65003531 650054459 650054836
TOTAL QUOTED
VALUE (refer CS 32,81,93,550.00 33,60,07,740.00 40,10,19,180.75 33,37,56,220.50
at Sr. 73 in the
file)
Total annualized 10,93,97,850.00 11,20,02,580.00 13,36,73,060.25 11,12,52,073.50
bid value
30% of total
annualized bid 3,28,19,355.00 3,36,00,774.00 4,01,01,918.08 3,33,75,622.05
value
Average turn
over 2,66,06,697.03* 26,32,09,738.50 5,36,45,274.50 26,37,59,111.50
Is Average turn
over >=30% of Yes* Yes Yes Yes
total annualized
bid value
*After TBO and receipt of deficient documents, while working out the average turnover of M/s. Superior Securitas, New Delhi, 'trading sales' indicated in 'Income and Expenditure A/c' in FY 201516, was not taken, considering it to be 'other income' or 'nonoperational income'. However, after opening of price bids, Finance Section has pointed out to consider 'trading sales' also for calculating average turnover (NP68 refers). In view of the observations, the turnover of M/s. Superior Securitas, New Delhi will be as under : Turn over of FY 1415 Rs.2,64,25,268.06 Turn over of FY 1516 Rs.9,47,29,631.00 (=2,67,88,126.00 + 6,79,41,505.00) Average Turn over Rs.6,05,77,449.53 Page 39 of 65 HC-NIC Page 39 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT Hence, as vetted by Finance vide Sr. 74, M/s. Superior Securitas, New Delhi also is meeting the Financial Criteria of BEC i.e. BEC Clause B2.6.0. From above, all the bidders are meeting the Financial Criteria of BEC.
7. Reasonability of Rates Indentor's comments on ROR is as under : Quote → As per comparative statement (CS) vetted by finance, the bidder M/s Superior Securitas, New Delhi (1.1) has been considered L1 for establishing/providing input for reasonability.
→ LPR : LPR of similar services hired by Ankleshwar Asset for 3 years (SAP OLA No.9010018589) was considered for the purpose of sanction with an escalation of 5% per annum. Further, rates of recently awarded similar contract at Rajahmundry Asset, has also been extracted from system and the comparative is as under :
All figures in INR Sr. Item LPR of Estimated LPR of Quoted Remarks No. Ankleshwar Value with Rajahmundry rates of Asset 5% Asset SAP bidder escalation (9010022364) M/s.
Superior Securitas, New Delhi.
1 Providing catering 353.15 408.82 517.57 420 1.(+)
services per person 2.73% wrt
per day at Muller PR Estimate.
2. ()
colony, CPF Gandhar,
18.85% wrt
North Gandhar and
Rajahmund
GCS Olpad ry LPR.
2 Providing 8.12 9.4 191.43 60 1.(+)
Housekeeping services 538.29%
per person per day at wrt PR
estimate.
Muller colony, CPF
2. ()
Gandhar, North
68.65% wrt
Gandhar and GCS Rajahmund
Olpad ry LPR.
Total per person per 361.27 418.21 709.00. 480.00. 1. (+)
day 14.77%
2. () 32.29
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1. From above, if computed for three years the total quoted amount works out to be Rs.32,44,000.00 as against Rs.28,12,75,152.94 wherein the quoted price of the vendor is higher by 14.92% as compared to the estimated price of PR.
The estimated cost includes service tax @ 14% whereas the quoted one has 15% service tax.
2. When compared with the latest contract agreement of Rajahmudry Asset (SAP OLA No.90100023364) the quoted rates are Rs.32,32,44,000.00 as compared to the value of referred OLA for same number of persons is Rs.47,74,58,325.00 and works out to be lower by 32.29%.
3. As downloaded from the site of labourbureau.nic.in it is calculated that the average rate of inflation for the period 2013 - 2015 stood at 9.75, whereas the escalation considered in estimates was only 5%. If escalated with average rate of inflation the estimated cost shall be Rs.477.58 per person per day with 14.00% service tax, which will be Rs.481.77, if the rate of service tax is considered as 15%. Here the total value of the contract works out to be Rs.32,44,35,962.25, and thus the quoted rates are lower by 0.37%.
Conclusion : In view of the above information about the quoted rates versus estimated cost, LPR of Rajahmundry Asset and the comparison with the average inflation data, the rates quoted by M/s. Superior Securitas, New Delhi, can be considered as reasonable.
CC) TC OBSERVATIONS & DELIBRATIONS
1. Instant case was invited as Open etender under two bid system and against this tender there are four TACA offers whose price bids were Page 41 of 65 HC-NIC Page 41 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT opened.
2. TC noted that the L1 status, as per "Total Evaluated Price i.e. Grand Total" as per vetted CS (Sr.73) are as under : M/s. Superior M/s. Saraf M/s. Jyoti M/s. Sai Securities, New Corporation Hospitality Hospitality Delhi, eRfx India Pvt. Ltd., Services Pvt. Service, Response No.: Mumbai, eRfx Ltd. Mumbai, e Mumbai, eRfx 650054727 Response No.: Rfx Response Response No.:
65003531 No.: 650054836
650054459
Total evaluated
price i.e. DD = 49,50,030.00*
Grand Total = 33,60,07,740.00 40,10,19,180.75 33,37,56,220.50** AA + (BB x 32,81,93,550.00* 3795 x 3 years) + (CC x 1811 x 3 years) Ranking L1 L3 L4 L2 TC noted that bidder M/s. Superior Securitas, New Delhi has indicated 'AA' in AppendixI as Rs.480.00 instead of Rs.32,32,44,000.00 (as per actual calculation), as brought out at Para BB)5a) above. So, if 'AA' is taken as Rs.480.00 its Total evaluated price 'DD' shall become Rs.32,81,93,550.00. Hence, even if the same is corrected and correct value of 'AA' is worked out, the bidder is still L1 as his Grand Total/Total Evaluated Price 'DD' is lowest. As per practice in vogue, evaluation needs to done on the higher value and for award lower value needs to be considered. ONGC cannot award contract for higher amount than indicated by the bidder, after correcting the bidder's indicated rate in 'AA', as the evaluation was based on the values indicated by the bidders. Moreover, there is no provision in integrated MM Manual for seeking any clarification subsequent to opening of price bids and clarification with regard to workability and hence, LOA needs to be awarded with 'AA' as Rs.480.00 and with Total evaluated price / Grand Total price 'DD' of Rs.49,50,030.00 for 3 years, inclusive of all taxes and duties.
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Further, as brought out at Para BB)5b) above, M/s. Sai Hospitality Services, Mumbai, has quoted Catering Charges as Rs.448.61 per person per day, at Appendix - I but in Break up of rates at Appendix - III, the sum comes out to be Rs.397.00, instead of Rs.448.61. As per practice in vogue, evaluation was carried out with the higher value i.e. Rs.448.61, as indicated by the bidder at Appendix - I, and the total comes out to be Rs.33,37,56,220.50, and thus the bidder is L2.
3. As per Reasonability of Rates furnished, the rates quoted by L1 is reasonable, but indicated for rates of "AA" i.e. Appendix - I only. Therefore, with regard to reasonability in respect of AppendixIV (BB) and Appendix - V (CC) against query of TC, indenting members stated that compared to LPR for Special meals and on overall basis also, quoted rates are reasonable.
4. In view of above deliberations, TC proposes to award the case for hiring of catering & housekeeping services at Muller Colony, CPF Gandhar, North Gandhar Colony, and GGS Olpad of surface section and DSA Gandhar and DSA Dabka of drilling section of Ankleshwar Asset for a period of three years to L1 bidder viz. M/s. Superior Securitas, New Delhi, at their quoted rates.
However, TC also deliberated that in case of nonacceptance of the LOA by the L1 bidder, in view of the issue of rates of 'AA', there is a likelihood of cancellation of this tender and reinvitation as per guidelines. Indenting members intimated that the existing contract is expiring on 01.09.2016 and the services shall be required on continuous basis. It is therefore, deliberated that indenting sections may take parallel action to meet the short gap.
5. Total financial implication is Rs.49,50,030.00 inclusive of all taxes & duties for 265 persons of drilling section and 350 persons for surface Page 43 of 65 HC-NIC Page 43 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT section, as under :
Sr. DESCRIPTION RATE IN RUPEES
No. PER PERSON PER
DAY
(A) Providing Catering Services as per the Scope of Work defined in bid 420.00.
document. For Full Meals as defined in scope of work (Breakup of which is to be provided at Appendix - III) (B) Providing Mechanized Housekeeping Services as per the Scope of 60.00.
Work defined in bid document.
GRAND TOTAL AA = [{(A) + (B)} x 615 (no. of persons in total) 480.00. (as x 365 (days) x 3 years] indicated by bidder) Appendix - III ITEM WISE BREAK UP OF RATES (FULL MEAL).
Sr. DESCRIPTION RATE IN RUPEES
No. PER PERSON PER
DAY
1 Bed Tea (05.30 - 06.30 Hrs) 8.00.
2 Breakfast (07.0010.30 Hrs) 60.00.
3 Tea (11.00 Hrs) 5.00.
4 Lunch (12.0014.30 Hrs) 140.00.
5 Evening Tea & Snacks (16001800 Hrs) 30.00.
6 Dinner (19.0023.00 Hrs) 140.00.
7 Tea/Coffee after Dinner 5.00.
8 Two Fruity/Jumpin or equipment item 30.00.
9 Mid Night Tea & Refreshment 2.00.
Total 420.00.
(Appendix - IV) RATES FOR EXTRA/OPTIONAL ITEMS Sr. DESCRIPTION RATE(INR) PER No. PLATE/SERVING/B OTTLE 1 Dry Fruits (Cashew nuts 20 gms + Pista 30 gms) - 50 Gms 60.00. 2 Tender Coconut Water 35.00.
3 Fresh Fruit Juice 25.00.
4 Sweets / Pastry - 50 Gms 45.00.
5 Samosa / Pakoda - One Plate 20.00.
6 RasMalai or any other sweets (2 pieces). 35.00.
Grand Total BB = (1+2+3+4+5+6) 220.00.
(Appendix - V)
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Sr. DESCRIPTION RATE IN RUPEES
No. PER MEAL PER
PERSON PER DAY
1 Providing Special Meals as per the Scope of Work defined in 450.00.
bid document.
GRAND TOTAL CC = 450.00.
Total evaluated Price i.e. DD = Grand Total = AA + (BB x 49,50,030.00
3795x 3 years) + (CC x 1811x3 years)
As per Appendix - II of price format of bidder, the above rate is inclusive of Service Tax for Catering Services @ 60%, Service Tax for Housekeeping Services @ 15% on 100%, Overall sales tax / VAT @ 2% on 100%, and Any other Tax Nil, as indicated by bidder.
6. Availability of sanction : Total contract value of 265 persons of drilling section and 350 persons for surface section (total 615 persons) is Rs.49,50,030.00 and total sanction is available for Rs. 28.12 Crores, which covers the proposed contract value.
7. BID & BID VALIDITY OF OFFERS :
Sr. Bidder Name Bid Validity Bid Bond
No. Validity
1 M/s. Superior Securitas, New Delhi 29.09.2016 MSME
2 M/s. Saraf Corporation India Pvt. Ltd, Mumbai 29.09.2016 NSIC
3 M/s. Jyoti Hospitality Services Pvt. Ltd. Mumbai 29.09.2016 MSME
4 M/s. Sai Hospitality Services, Mumbai. 29.09.2016 MSME
The two bidders rejected earlier i.e. M/s. SB Catering Services, Locknow and M/s. Aedicon Engineering Services Pvt. Ltd., Vadodara being MSME and NSIC firms respectively, no EMD is involved.
DD) RECOMMENDATIONS :
In view of the above, TC recommends as under :
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1. To award the contract for hiring of catering & housekeeping services at Muller Colony, CPF Gandhar, North Gandhar Colony, and GGS Olpad of surface section and DSA Gandhar and DSA Dabka of drilling section of Ankleshwar asset for a period of three years to M/s. Superior Securitas, New Delhi on Total financial implications of Rs.49,50,030.00 inclusive of all taxes & duties, considering the rates as quoted by the bidder.
PR value : Rs.28.12 Crore.
Proposed Contract Value : Rs.49.50 lakhs.
CPA : L1 as per item 24.1 (a) of BDP2015.
Submitted for approval please.
Sd/ Sd/ Sd/ Sd/
(Dr. KRM Rao) (R.S.Shah) (Dipak Patel) (K.Manivannan)
GM(M)offtgSM GM(D)HDS GMI/C(F&A) DGMI/CMM "
11. Thus, it can well be said that the Tender Evaluation Committee was absolutely mindful of the fact that the error on the part of the present petitioner in the bid if taken on its face value, was rendering the offer absolutely viable and workable looking to the volume of the contract. However, the Tender Committee was mindful of the fact that it did not have any power, scope or justification for undertaking on its own behalf the grand totaling of the items so as to substitute the figures mentioned by the petitioner in the column below AppendixI and therefore, the Tender Committee perceived its inability to recommend issuance of Letter of Award on the basis of Rs.32,81,93,550/, which was offered meant by the petitioner, but recommended issuance of LOA on the basis of actual mentioned figure, which workedout to Rs.49,50,030/ and in the same breath the Committee also elaborately mentioned after due deliberation that the LOA issued on that basis would not result into fructifying of the contract or acceptance on the Page 46 of 65 HC-NIC Page 46 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT part of the petitioner and ultimately as it is observed hereinabove, the petitioner reacted and submitted indicating the absurdity of the calculation and lack on the part of the authorities in not appreciating the fact that the same was absolutely unworkable and could not have resulted into LOA and accordingly requested the authorities to rectify and correct the LOA.
12. The refusal to correct the LOA and petitioner's inability to work the contract was viewed as petitioner's refusal to execute the contract and as it was required to be envisaged by the authorities, they had to provide immediate services on emergency basis to the staff members as the existing contract was come to an end by 1st September 2016. The said exigency warranted board purchase.
13. The question therefore, requires to be addressed is whether it was open to the respondent - ONGC to exceed to the request of the petitioner, which would have amounted to changing or permitting the change of figures mentioned by the petitioner in its own offer. The said question is required to be assessed and viewed from the terms and conditions of the tender, the manual material management prevalent with the O.N.G.C. and the extant provision of law.
14. The item no.24 of instructions to bidders under caption "E. Evaluation of bids" reads as under : 24.0 EVALUATION AND COMPARISON OF BIDS 24.1 Evaluation and comparison of bids will be done as per provisions of Bid Evaluation Criteria at AnnexureIV (to be supplied separately alongwith bidding document against individual tenders.) (Circular No. 05/2013 dated 23.01.2013) Page 47 of 65 HC-NIC Page 47 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT 24.2 CLARIFICATIONS OF BIDS :
24.2.1 During evaluation of bids, Purchaser may at its discretion ask the Bidder for clarifications/confirmations /deficient documents of its bid. The request for clarification and the response shall be in writing and no change in the price of substance of the bid shall be sought or permitted.
15. Learned counsel appearing on behalf of the petitioner heavily pressed into service the provision of item no.24.2.1 and submitted that the discretion was left to the authorities to ask the bidder for clarification/confirmation/ deficient documents and bids. Learned counsel of the petitioner has submitted that this clause enables the respondent authorities to seek any clarification, which includes the clarification in which the petitioner could have been asked to indicate the grand total of the figures mentioned therein. The nonmentioning was omission on the part of the petitioner, but was not so fatal as to misconstrue the entire tender and rendering it absolutely nonworkable.
This submission is required to be dealt with, but before that it is also required to be noted that there are few other conditions also, which may be reproduced for the ready reference of the instructions to tenderer.
25.0 UNSOLICITED POST TENDER MODIFICATIONS :
25.1 Unsolicited posttender modification will lead to straight away rejection of the offer.
(Circular No. 05/2013 dated 23.01.2013) 25.2 In case certain clarifications are sought by ONGC after opening of bid then the reply of the Bidder should be restricted to the clarification sought. Any bidder who modifies his bid (including all modifications which have the effect of altering his offer) after the closing date, without any specific reference by ONGC, shall Page 48 of 65 HC-NIC Page 48 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT render his bid liable to be ignored and rejected without notice and without reference to the bidder.
26.0 EXAMINATION OF BID 26.1 The ONGC will examine the bids to determine whether they are complete, whether any computational errors have been made, whether required sureties have been furnished, whether the documents have been properly signed and whether the bids are generally in order.
16. Learned counsel for the petitioner also heavily relied upon the provision of the Manual containing Chapter - 11 on page no.175 under the caption 'Evaluation of Tenders Formulations of Purchase, Proposal and Placement of Contract' and laid special emphasis upon item no.11.2.3, which reads as under : "11.2.3 Nonconformities between the figures and words of the Quoted Prices - Sometimes, nonconformities/errors are also observed between the quoted prices in figures and that in words. The same is to be taken care of as indicated below :
(a) If, in the price structure quoted for the required goods, there is discrepancy between the unit price and the total price (which is obtained by multiplying the unit price by the quantity), the unit price shall prevail and the total price corrected accordingly, unless in the opinion of the purchaser there is an obvious misplacement of the decimal point in the unit price, in which case the total price as quoted shall govern and the unit price corrected accordingly.
(b) If there is an error in a total corresponding to the addition or subtraction of subtotals, the subtotals shall prevail and the total shall be corrected; and Page 49 of 65 HC-NIC Page 49 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT
(c) If there is a discrepancy between words and figures, the amount in words shall prevail, unless the amount expressed in words is related to an arithmetic error, in which case the amount in figures shall prevail subject to (a) and (b) above.
If there is such discrepancy in an offer, the same is to be conveyed to the tenderer with target date on the above lines and if the tenderer does not agree to the observation of the purchaser, the tender is liable to be ignored."
17. Learned counsel appearing for the petitioner also relied upon the decision of the Delhi High Court in case of M/s. Supreme Infrastructure India Limited V/s. Rail Vikas Nigam Limited and another, in Writ Petition © No.3817 of 2012 decided on 12th December 2012 and submitted that the Tender Committee of the respondent could not have acted mechanically like robots and it was required to apply it's mind. The nonmentioning of the total of the daily charges was an obvious mistake, which either could have been rectified on their own or could have been rectified by calling the petitioner to do so. The observations of the Division Bench of the Delhi High Court from the aforesaid decision were pressed into service to support this contention. Learned counsel for the petitioner invited Court's attention to the observation of Delhi High Court in paragraph no.7 to show the facts, and attention was also drawn to paras 14, 16 and 17 to support his contention. Learned counsel for the petitioner also invited Court's attention to the similar decision rendered earlier by the Chandigarh High Court in case of SAB Industries Limited V/s. State of Haryana and others in C.W.P. No.970 of 2008 decided on 7th January 2009 to support the contention that the Tender Committee or Tender Evaluation Committee is not required to act mechanically in assessing and evaluating the offers, the Tender Committee is required to apply it's mind to the facts in question and if there is an obvious mistake, the rectification thereof cannot be said to be unjustified and therefore, nonrectification was viewed to be arbitrary, Page 50 of 65 HC-NIC Page 50 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT capricious and was deprecated. In the instant case, it was submitted on behalf of the petitioner that the respondent authorities were under obligation to go by their own understanding, which they have calculated and also to see the offer of the petitioner correctly, but only on account of petitioner's nonmentioning of the said figure in terms at the column in which he was to mention them, ridiculously took the unit price before and price for the entire quantity for three years and how absurd it was is demonstrated by the petitioner's counsel in his submission, which is set out hereinabove. Therefore, on this account, it was urged that the petition deserve to be allowed.
18. Learned counsel for the petitioner also contended that the malafide action on the part of the respondents are clear as despite they being in knowledge of the fact that the nonmentioning of the grand total below Appendix - I was not so fatal, they chose to insist upon the ridiculously law figure and issued LOA knowing full well that it is not likely to be accepted by the petitioner, which will in turn warrant them to go for other alternate situation and when it happened, they did not invite the petitioner's offer when they resorted to board purchase, which was required to be resorted for meeting their socalled exigency.
19. Learned counsel for the respondent - O.N.G.C. submitted that the close perusal of the aforesaid provision setout hereinabove would not permit the Tender Committee or for that matter, the Management of O.N.G.C. to ignore what was expressly mentioned in the document, as it would amount to rewrite the tender or permitting the petitioner to substitute its own offer. The petitioner's counsel was not justified in contending that the arithmetical calculation rightly done at their end should have been reflected in the LOA ignoring the offer of the petitioner.
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20. Learned counsel for the respondent also contended that the corporation was all along acting on its toe for seeing to it that the canteen and other services may not seize from 1st September 2017 and it may continue uninterruptedly. The petitioner's inability to accept the LOA was obvious, but at the relevant time, the Committee had no choice but to not invite the petitioner as per the provision and procedure and practice prevalent, as the petitioner was to be classified as the offerer, who did not accept the LOA. In that situation, there was no question of any malafide being attributed to the staff and officers of the O.N.G.C. Suffice it to say that the ONGC and the respondent worked strictly in accordance with law, as there was no other way open to the respondents.
21. Thus, the entire controversy in the present petition is required to be viewed and examined against the aforesaid factual aspects, legal submissions and the prayers made in this petition. The fact remains to be borne in mind is that the petitioner prior to receipt of the LOA dated 24th August 2016 had never realised that there was an error on the part of the petitioner in filling in the tender. Unfortunately, the subsequent communication, after receipt of LOA dated 24th August 2016 also do not indicate any attempt on the part of the petitioner to seek any rectification in its own bid. The Court hastened to add here that it is a different question altogether weather such rectification would have been permissible or not. The petitioner after receipt of LOA entered into correspondence with the respondents on the basis of the existing bid, which he has submitted and attempted to fasten the obligation/burden upon the respondents that they either could have workedout the final price and offer on their own or could have sought clarification from the petitioner. The mentioning of the figure in the column below Appendix - I viz. price bid format if taken to its face value shall obviously not leading to any absolute result and therefore, Page 52 of 65 HC-NIC Page 52 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT according to the petitioner, a duty was cast upon the respondent authorities either to workout on their own the final offer of the petitioner or ask the petitioner to clarify the same. In our considered opinion, this proposition is wholly misconceived, not tenable in eye of law and hence, requires to be rejected. The petitioner, as a tenderer, was under obligation to read the tender document closely and required to mention scrupulously and unequivocally its offer. The tender document leaves no room for any ambiguity, benefit whereof could be claimed by the petitioner. The extracted table below AppendixI on page no.152 contains 4th row, which clearly provides that the grand total of the items was required to be mentioned there under. The petitioner unfortunately mentioned per person and rates per day only ignoring the words "Grand total AA = [{(A) + (B)} x 615 (no. of persons in total) x 365 (days) x 3 years]. It is also required to be noted that the petitioner has not omitted to mention in column against the afore said total, but has mentioned incorrect figure, which was obviously incapable of being mention there on account of it being rendering the said quotation unworkable. The question arise as to whether in the scenario could petitioner argue successfully relying upon the provision of item no.24.2.1, as the first part of the said provision as it is extracted hereinabove in judgment may give an impression that the clarification/confirmation from the bidder is left to the discretion of the purchaser. But, the nature of clarification and confirmation is again restricted if one reads the later part of the said clause, which in unequivocal terms makes it clear that the request for clarification and the response shall be in writing and 'no change in the price of substance of the bid shall be sought or permitted' (emphasis supplied). This clause would govern the earlier clause in which the discretion is left in the purchaser to seek clarification and confirmation. The said confirmation /clarification shall have no effect upon the substance of the bid in the instant case. The clarification would essentially have effect of Page 53 of 65 HC-NIC Page 53 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT changing the figure and therefore the O.N.G.C. cannot be said to be acting arbitrarily when it did not think it fit to seek clarification. The decision cited at the bar in case of Delhi High Court in case of M/s. Supreme Infrastructure (supra) in our view also would not support the contention of the petitioner inasmuch as the facts prevalent there and the facts of the case on hand are distinctly different and the observations of the Division Bench of Delhi High Court is required to be viewed in light of the facts narrated thereunder. It would not be out of place to mention few facts of the case of M/s. Supreme Infrastructure (Supra) in order to understand and appreciate the appreciation of the Division Bench of Delhi High Court. The Rail Vikas Nigam had invited the bids for execution of doubling of HospetTinai Ghat line in Hubli division of South Western Railway in the State of Karnataka. The bids were to be submitted in three packages, or combination thereof. In package no.1, work was to be executed between Hospet and Harlapur; in package no.2 work was to be executed between Harlapur to Hebsur and Hubli to Dharwad; and, in package no.3 work was to be executed between Kambarganvi and Londa. The petitioner along with its joint venture company submitted three packages separately and also in combination for packages 1 and 3. Item no.2061 of the Bill of Quantities (BOQ) schedule 2(c) in all the packages pertained to supply of steel items. The bidders were required to specify the rate of T.M.T. Fe500 reinforcement steel. Since, the estimated quantities of the various items were mentioned in the BOQ, the bidders were also required to fill the total amount after multiplying the estimated quantity provided in the BOQ with the specified rate. There petitioner therein contended that since the work involved in all the three packages was identical, the petitioner offered rate of Rs.54,000/ per M.T. Under the said item no.2061, schedule 2(c) of BOQ in all the packages uniformly, and also stated the respective total amounts corresponding to the said rate. The same rate of Rs.54,000/ per M.T. Was quoted in the combination package nos.1 Page 54 of 65 HC-NIC Page 54 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT and 3 for the aforesaid BOQ item as well. The petitioner and his partner found to be lowest as the total price bid aggregating to Rs.158,76,29,854/. The petitioner therein received the impugned communication from the respondent no.1 therein stating that for the item no.2061 in schedule 2(c), the petitioner had quoted the rate of Rs.2820/ per M.T. For package no.1 and the total amount for this item comes to Rs.79,52,400/ instead thereof, the petitioner had claimed Rs.15,22,80,000/. By referring to the clause number 33.1 of the 'Instructions to Bidders', the respondent therein claimed that if there is a discrepancy between the unit price and the total price, i.e. the price obtained by multiplying the unit price with the quantity, it is the unit price, which will prevail and the total price shall be corrected unless, in the opinion of the employer, there is an obvious mistake in decimal point in the unit price. In order to appreciate the controversy, paragraph nos.6, 7 along with the detail therein deserve to be setout as under : "6. The petitioner submits that on 04.05.2012, it received the first of the impugned communication from the respondent no.1 stating that for item no.2061 in Schedule 2(c),i.e. for supply of steel item, the petitioner had quoted the rate of Rs.2820/ per M.T. for package 1. Respondent no.1 claimed that by calculation (i.e., by multiplication of the estimated quantity with the rate), the total amount for this item comes to Rs.79,52,400/. However, the petitioner had indicated the total amount against this item as Rs.15,22,80,000/. The respondent referred to clause 33.1 of the 'Instructions to Bidders' (ITB) which states that if there is a discrepancy between the unit price and the total price, i.e., the price obtained by multiplying the unit price with the quantity, it is the unit price which will prevail and the total price shall be Page 55 of 65 HC-NIC Page 55 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT corrected unless, in the opinion of the employer, there is an obvious mistake in the decimal point in the unit price. The respondent stated that since in the rate quoted there is no decimal involved, the price quoted by the petitioner for supply of T.M.T. Fe500 steel has to be taken as Rs.2820/ per M.T. The respondent also referred to clause 33.2 of the ITB to state that if the bidder who submits the lowest evaluated bid does not accept the correction of errors, its bid shall be disqualified and its bid security may be forfeited. The petitioner was called upon to accept the correction in the amount which was sought to be arithmetically corrected. As per clause 33.1 of the ITB, the respondent sought the petitioner's acceptance within a week.
7. The submission of the petitioner is that when the said communication was received, the petitioner realized that in its bid document pertaining to package no.1, in respect of the aforesaid item no.2061 of the BOQ, schedule 2(c), i.e., for supply of TM.T. Fe500 reinforcement steel, a writing/ typographical error had crept in inasmuch, as, in the column where the rate was to be quoted, the person filling in the bid document had inadvertently filled in the figure "Rs.2820/" both in figures and words. The error is explained by pointing that the estimated quantity of this item as mentioned in the BOQ form was 2820 M.T. The submission is that this was an obvious typing / typographical error inasmuch, as, the total amount for this BOQ item was mentioned by the petitioner as Rs.15,22,80,000/ which would be the total amount if the rate of Rs.54,000/ per M.T. is multiplied by the estimated quantity of 2820 M.T. His Page 56 of 65 HC-NIC Page 56 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT further submission is that the rate of Rs.54,000/ per M.T. for this BOQ item had uniformally been quoted by the petitioner in respect of the other bids made by it in respect of packages 2, 3 and the combined package 1 and
3. The submission of the petitioner is that, in fact, there was no arithmetical error and the same was a bona fide human error which occurred on account of fatigue and tiredness of the person filling the tender form as a result of repetitive work. To appreciate this submission of the petitioner, we may extract herein below the relevant entry in the BOQ which contains the rates/amounts mentioned by the petitioner:
"Package - 1 : HSPET - HARLAPUR SECTION BOQ PART - 1 Schedule 2C Supply of Steel Items Sr. Description of item Unit Qty Rate (Rs.) Amount No. (Rs.) in Fig. In Fig In words 2061 Supplying TM.T. Fe M.T. 2820 Rs.2820/ Rs. Two Rs.
500 reinforcement thousand 15,22,80,000
steel conforming to eight
IS:17861985 including hundred
decoiling, twenty
straightening, cutting, only
bending, placing in
position, binding with
1mm dia GI binding
wire.
Note :
Reinforcement, shall be
measured in length for
different diameters
used in the works and
then paid as per
standard weights as
per IS 1732. Wastages,
overlaps, coupling,
welded joints, space
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C/SCA/14725/2016 JUDGMENT
bars chairs and binding
wire shall not be
measured and cost of
these items shall be
deemed to be included
in the rates.
Total for Bill 2 C Rs.
(Carried forward to 15,22,80,000
Summary of Part 1)
(Rs. Fifteen Crore Twenty Two Lakh Eighty Thousand only)"
The words and figures filled in by the petitioner in hand have been put in italics above."
22. The aforesaid facts would indicate that the petitioner therein had committed mistake in indicating the unit price which according to petitioner was Rs.54,000/ per M.T., in that column it was mentioned 2820 that was the quantity required. But, under the column amount in figures after multiplying the unit or ton rates the figure of Rs.15,22,80,000/ was mentioned correctly. Now, if one divides that figure by the quantity i.e. 2820 then it would be Rs.54,000/ only. Thus, there was a discrepancy between the unit price and the total and Railway insisted for going by the unit price mentioned as per Clause - 33.1 of the 'Instructions to bidder', which was termed to be absurd and the Court made various observations. The correctly mentioned total figure was clear indication of offered unit price and it did not require great exercise on the part of either side. Whereas in in case on hand the missing of total without any further clarity and mentioning of the figure which if subjected to logical inference did lead to desired result but fine question arises as to that fine exercise was permissible under the given set of terms, rules and principles for assessing offers in present day situation the answer would be obvious and emphatic "NO". As a result thereof, the contract was rendered unworkable that in itself would not attract the clause, permitting the ONGC to seek clarification or Page 58 of 65 HC-NIC Page 58 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT permitting even the bidder to change the bid. The bidder, unfortunately, has not come forward at any stage for seeking rectification rather it has all along contended that it was a duty cast upon the employer ONGC to understand the bid logically. According to us, this being a proposition not well founded in law and the same cannot be accepted.
23. The observations made by the Supreme Court in case of W.B. State Electricity Board V/s. Patel Engineering Co. Ltd., and others, reported (2001) 2 Supreme Court Cases 451, have been pressed into service for illustrating the requirement of evaluating the bids for governing the evaluation of the bids. The Delhi High Court has as stated hereinabove, viewed the facts in the case before it of M/s. Supreme Infrastructure (supra) to be one in which the clause 27.1 was treated to be a clause, which could have been pressed into service for avoiding an absurd action on the part of the employer and it was observed that the discretion embedded therein could have been fruitfully exercised by the employer in seeking clarification from the bidder, as the Court had even gone on noticing that the bidder had offered his bid for all the three packages in which the said error or omission of not mentioning the rates of the TM.T. Fe500 had not occurred as in two other packages, where the identical bid was made, the tenderer did quote the unit price of Rs.54,000/ per M.T. bid figure in the prescribed column and Court noticed that the same officer had assessed and worked on all the bids and this omission in the bid in question could have been well noticed, which was on the face of it quite absurd, as the bidder would not have logically quoted 20 times or more the lesser amount than the actual market value of the commodity. The Court therefore, has said that instead of being restricted on account of the Clause 33 of the NIT, Clause 27.1 could have been resorted for avoiding an absurd conclusion. Therefore, the Court while treating the same to be a validly invoked case, in a given situation, issued directions as recorded in paragraph Page 59 of 65 HC-NIC Page 59 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT no.56 of the judgment. The Court also extensively referred to the observations of the Supreme Court in case of Patel Engineering (supra) and submitted that the Patel Engineering case's submission rather would support the opportunity being granted to the bidder for rectifying instead of arriving at an absurd conclusion.
24. With profound respect to the views expressed by the Delhi High Court in the decision of M/s. Supreme Infrastructure (supra), we are unable to agree to the said view inasmuch as the Clause 27 of the judgment in case of M/s. Supreme Infrastructure (supra) could be said to be similar to Clause 24.2.1 of the case on hand in which the close reading of the said Clause would indicate that though the discretion in the first instance appears obvious in the employer to seek clarification from the bidder, but that being not unfettered as is obvious on plain readings of the latter part thereof and which appears to be absolutely in consonance with the public policy and public interest viz. "the request for clarification and the response shall be in writing and no change in the price of substance of the bid shall be sought or permitted." This restriction is required to be viewed, which is required to be said to be an essential condition answering the public policy and public interest both. This condition obviates the plausible mischief at anyone's end, which is likely to occur in a case of such nature. Therefore, on all tender notices issued by public corporations and government bodies such restrictive clauses are always found essential and strict their strict adherence is rather rule of law. With profound respect, as we have said hereinabove this Clause in our view would not give much discretion to the employer ONGC as to permit it to seek clarification on the grand total of the unit, which column has been duly filledin though taking the same column to its logical conclusion would definitely render the entire it absurd. The question arises at this stage as to whether can bidder be said to have offered a nonresponsive bid. At the first blush, omission to mention the Page 60 of 65 HC-NIC Page 60 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT figures as mentioned or as required under the column may render it to be a nonresponsive bid. But, the bidder - petitioner has mentioned the figure, though the said figure taken on its face value appears to have been indicative of the unit and not the total. In other words, if the same was taken to be nonresponsive, there could have been question against the Corporation also as to how the Corporation can decide unto itself that the bidder is not desirous of offering goods at the price quoted though it may obviously appear to be economically nonviable for him to have offered. Though the exercise can be undertaken by ONGC and its tender valuation committee, which speaks volume about the deliberation, which was undertaken and it reflected in the minutes also. The ONGC has in fact appreciated, understood and deliberated upon the obvious mistake by the tenderer, but as at the same time not ventured into invoking Clause 24.2.1, which in our view cannot be said to be so grave and arbitrary calling an for interference from the Court. Rather the ONGC has decided to consider and well claimed by them of going by the letters of the law. There could be possibility of incurring some expenses on account of this ultimate eventuality, which even ONGC envisaged as reflected in its meeting, but that in itself would not permit them to invoke the clause, which would have rendered a substantial change in the price.
25. It would have been rather appropriate if the wordings of the tender document were more articulate and elaborate as it has been done in the subsequent tender process and the counsel for the petitioner did attempt to highlight those by saying that the workingout of final grand total was left to the ONGC and then why it was not attempted in the instant case, which would have resulted into avoiding undue burden on public exchequer.
26. We are unable to accept this submission on the ground that Page 61 of 65 HC-NIC Page 61 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT the ONGC was bound by terms of the tender document and the decision rendered by the Supreme Court in case of Patel Engineering (supra) especially in paragraph No.24 would indicate that the terms of the tender are to be adhered to scrupulously and no deviation much less any substantive deviation was permissible. The deviation in the instant case was on the face of it attempted to be shown not to be very material, but it is if considered from the view point of other bidders, who in fact did mention the correct total figure in the column prescribed unlike the present petitioner, then it would in our view change the entire scenario. The paragraph no.24 of the said judgment of the Supreme Court in case of Patel Engineering (supra) reads as under : "24. The controversy in this case has arisen at the threshold.
It cannot be disputed that this is an international competitive bidding which postulates keen competition and high efficiency.
The bidders have or should have assistance of technical experts. The degree of care required in such a bidding is greater than in ordinary local bids for small works. It is essential to maintain the sanctity and integrity of process of tender/bid and also award of a contract. The appellant, Respondents 1 to 4 and Respondents 10 and 11 are all bound by the ITB which should be complied with scrupulously. In a work of this nature and magnitude where bidders who fulfill prequalification alone are invited to bid, adherence to the instructions cannot be given a goby by branding it as a pedantic approach, otherwise it will encourage and provide scope for discrimination, arbitrariness and favouritism which are totally opposed to the rule of law and our constitutional values. The very purpose of issuing rules/instructions is to ensure their enforcement lest the rule of law should be a casualty. Relaxation or waiver of a rule or condition, unless so provided under the ITB, by the State or its agencies (the Page 62 of 65 HC-NIC Page 62 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT appellant) in favour of one bidder would create justifiable doubts in the minds of other bidders, would impair the rule of transparency and fairness and provide room for manipulation to suit the whims of the State agencies in picking and choosing a bidder for awarding contracts as in the case of distributing bounty or charity. In our view such approach should always be avoided. Where power to relax or waive a rule or a condition exists under the rules, it has to be done strictly in compliance with the rules. We have, therefore, no hesitation in concluding that adherence to the ITB or rules is the best principle to be followed, which is also in the best public interest."
27. The Supreme Court's observation in the case of Patel Engineering (supra), in our view clearly mandates with the discretion envisaged in Clause 24.2.1 has to be governed by the latter part and in case if the clarification results into change in the substance or price irrespective of its magnitude, then the said discretion is not to be invoked. In that view of the matter, the impugned action of the ONGC cannot be said to be so arbitrary or capricious as to call for any interference. We are therefore, of the view that the petition being bereft of merits on this count and deserves to be dismissed.
28. In case of Siemens Public Communication Networks Private Limited and Another V/s. Union of India and others, reported in (2008) 16 Supreme Court Cases 215, the Supreme Court in paragraph nos.35 and 36 held as under : "35. The appellants have also not been able to establish that Respondent 2 adopted a pickandchoose policy or discriminated against Appellant 1. Respondent 2 dealt with all the three bidders with an even hand as the same method was Page 63 of 65 HC-NIC Page 63 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT adopted for arriving at the total price of materials specified in Item 11 in respect of all the three bidders. It is not the case of the appellant that they had not quoted the said price as that of a single unit. There is nothing on record by way of any remarks in the bid document to the effect that the said price of a single unit was to hold good for 100 units on the ground that Appellant 1 was granted a software licence which catered to 100 users at one time. A basic distinction has to be drawn between a case where against an item, no rates or prices or quantities are quoted, and those where some rate is quoted.
Appellant 1 having quoted a rate on a unit basis in respect of Item 11, Respondent 2 had no option but to make the said rate the basis for arriving at the total price.
36. Accepting the interpretation as sought to be given by the appellants would amount to rewriting the entries in the bid document and reading into the bid document, terms that did not exist therein. An international bidding of such a nature being highly competitive, is also expected to be extremely precise. The technical nature of the subjectmatter of the contract itself postulated assistance of technical experts and thus, a very high degree of care and meticulous adherence to the requirements of the bid was inherent in such a bidding. On its part, Respondent 2 was under an obligation to not only maintain a great degree of transparency and fair dealing on its part, but was also expected to maintain the sanctity and integrity of the entire process. Thus, it was incumbent upon Respondent 2 to ensure that no different yardsticks were adopted for any of the vendors and at the same time, to ensure that there was not the remotest possibility of discrimination, arbitrariness or favouritism. There was no scope for Page 64 of 65 HC-NIC Page 64 of 65 Created On Sun Aug 13 09:33:21 IST 2017 C/SCA/14725/2016 JUDGMENT Respondent 2 to read into the documents, terms and conditions which did not exist in the bid documents. The appellants have also not levelled any personal allegations of mala fides or favouritism against Respondent 2."
29. In light of the above, we are therefore, of the considered view that the petition being bereft of merits and is accordingly dismissed. Notice discharged. However, there shall be no order as to costs.
30. At this stage, learned counsel for the petitioner Shri Mehta, makes a request to extend the statusquo, which was earlier granted by this Court. We are of the view that the pleadings and the proceedings of this matter, as all along against the backdrop of the exigency and urgency pleaded on behalf of the ONGC for less uninterrupted services, which was subject matter of the petition and therefore, we are unable to accept his request and the request is hereby rejected.
31. In view of the order passed in the main matter, no orders in Civil Application. Hence, the civil application is disposed of.
(S.R.BRAHMBHATT, J.) (A.Y. KOGJE, J.) Rathod...
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