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2. In WPMP No. 31416 of 2001 on 5-12-2001, interim direction not to finalise the bids for Group-G tender notice until further orders had been granted and in view of the urgency involved as explained by all the Counsel on record, the matter is taken up for final hearing.

3. The facts in brief, which had paved the way for the writ petitioner to invoke the jurisdiction of this Court under Article 226 of the Constitution of India, are as under:

It is stated that the petitioner-Company was incorporated under Indian Companies Act initially as a Private Limited Company for the purpose of developing software and imparting training in the field of hardware and the Company was recognised as one of the pioneer industry in development of software field and was also appreciated by other foreign organisations and the Company was converted into a Limited Company and it was incorporated with the Registrar of Companies on 15-12-1999. It was also stated that the 1st respondent invited tenders, vide Notice No. 242/SCERT/Computer Cell/ D5/2001, dated 16-6-2001 for leasing of computer hardware, software and connected accessories and provision for computer education in 1000 schools throughout the State of Andhra Pradesh and the last date for submission of bids was 15-7-2001 which was subsequently changed to 18-10-2001 upto 3 p.m., and technical bids were to be opened on the same day at 5 p.m. The bid is in two stages i.e., technical bid and commercial bid. The 1st respondent after opening of the technical bids, evaluates the same with reference to technical qualifications required to be met as per the specifications in the bid document and those who are evaluated to be qualified are informed about the same on the date of opening of the financial bids. It is further averred that the State is divided into eight groups, Groups A to H, District-wise and each bidder has to file a separate bid for whichever group he intends to bid. A period conference was held on 9-7-2001 for issuing clarification of bid conditions and to carry out amendments to bid conditions wherever necessary. The 1st respondent issued an amendment to bid document giving certain clarifications and making certain amendments to the price tender form of the commercial bid. The bid document apart from dividing the State into eight groups also categorises the schools within each group depending upon the strength of the students and a bidder has to quote its price for all the categories of schools included in each group. It is also further stated that Clause 8(a) of the bid document contemplates that all particulars must be furnished as asked for in the prescribed technical and commercial bids in the bid documents and under Clause 17 (b), the tenders with incomplete information are liable to for rejection. As per Clause 29, the total of Column 1 and Column 2 in the commercial bid (Price Tender Form) will alone be considered for commercial rate evaluation purpose. Pursuant to the pre-bid conference, as already stated supra, certain clarifications and amendments were issued and no clarifications or amendments to any of the clauses mentioned supra were issued and however Price Tender Form was amended obliging the bidders to quote their prices 'without tax' and 'with tax' per unit as well as half yearly instalment for all the units put together. It is also stated it is clear from a combined reading of the various clauses mentioned supra that any bid with incomplete particulars is liable for rejection and the 1st respondent has no option but to reject the same and any deviation from the conditions in the bid document would be arbitrary and the bid document does not give any such option to the 1st respondent. It was further stated that the tax component and the particulars quoted by each bidder was sought to be separated as the sales tax structure varies from State to State and it was essential for the 1st respondent to know the tax component of the price offered by each of the bidders. It was further stated that the petitioner was found technically qualified and was invited to attend the opening of the commercial hid on 18-10-2001 and the petitioner had to bid only for Group-G and had filled up the Price Tender Form furnishing all particulars including with tax and without tax and at the time of opening of commercial bid it was found that the 3rd respondent had not filled in the column 'without tax' both for unit as well as total half yearly instalments for all the units. The petitioner had bid for the supply of goods without taxes at Rs3,46,70,55l/- and with tax at Rs3,64,56,085/-, whereas the 3rd respondent had quoted with taxes at Rs. 3,59,99,150/- and thus the difference between the petitioner and 3rd respondent after addition of taxes will come to about Rs. 5 lakhs and odd. It is further stated that after opening of the commercial bid the petitioner came to know that the 1st respondent is considering the bid of the 3rd respondent and sent a representation protesting against the same on 19-10-2001, followed by letter dated 31-10-2001 and another letter dated 16-11-2001 and it is further stated that the Vice-President, Operations, met the 1st respondent on 1-11-2001 and the 1st respondent informed him that while considering the bid of the 3rd respondent, the lowest of the sales tax quoted by any one of the bidders for any one of the groups i.e., all groups, will be taken into consideration for calculating the price of the 3rd respondent and decide as to who is the L1 bidder and the said assurance of the 1st respondent is reflected in the letter of the petitioner dated 16-11-2001, which had not been denied. It is further stated that the petitioner filed WP No. 23782/2001 seeking the relief of a writ of mandamus declaring the action of the respondents in calling for negotiations to finalisation of the tender No. 242/SCERT/Computer Cell/ D5/2001 as illegal, arbitrary and the same is violative of the terms and conditions of the tender document and principles of natural justice without considering the representation dated 19-10-2001 with reference to No. TSI/Let/ 878 of the petitioner-Company. It stated that Notice Before Admission was ordered on 26-10-2001 and the 1st respondent filed a counter-affidavit which was served on the Counsel for the writ petitioner on 27-11-2001 wherein it was stated that a decision was taken by State Level Committee to treat the 3rd respondent as the lowest bidder and a copy of the minutes of the meeting of the State Level Committee was enclosed to the counter-affidavit. A reading of the minutes of the meeting would clearly indicate that a final decision has been taken to treat the 3rd respondent as L1 ignoring the tender conditions and also contrary to the recommendations of the State Level Committee as reflected in the minutes which reads : "the prices quoted before taxes will be taken into account for comparison of bids". Since the 3rd respondent had not quoted his price before taxes and hence the comparison of the price quoted by the petitioner with the price of 3rd respondent does not arise at all. It further stated that while considering the bids by State or its instrumentalities, the bid conditions shall not be deviated and must be strictly adhered to and if the 1st respondent had followed the said principle, the bid of the 3rd respondent should have been rejected without any consideration as was done in the case of NIIT who had bid for Group-E without mentioning the price of Category-F, however, giving the total price. It is further stated that the action of the 1st respondent is obviously intended to benefit the 3rd respondent and the same is clear from the fact that the bid of NIIT was rejected on a technical ground on which a clarification could have been obtained from the said Company, while the bid of the 3rd respondent was considered deviating from the bid conditions. This obviously would result in undue favour being conferred on the 3rd respondent by relaxing the bid conditions and hence the said action is arbitrary, illegal and it is also stated that the petitioner is advised to file a fresh writ petition in view of the contentions raised in the counter-affidavit in the prior writ petition and in view of the limited relief prayed for in the prior writ petition.

6. It is erroneous to say that bid conditions were deviated in considering the bid of the 3rd respondent. The case of M/s. NIIT referred to by the petitioner pertains to non-submission of prices for one of the categories in Group-E i.e., Category-F, which is a material deviation, hence their bid was not considered for that group. Whereas, the bid of 3rd respondent was considered for the reason that they have given prices of all categories in Group-G and their bid is complete in all respects except for the break-up of 'prices without taxes' and 'prices with taxes'. Ultimately, the contract(s) will be awarded on the basis of the group total with taxes only. The break-up of prices without taxes and with taxes was asked in the bid primarily to ascertain the rate of taxes taken into account by each bidder, hence not considered by the committee to be a material deviation. It is incorrect to say that the action of the 1st respondent has resulted in conferring any undue favour to the 3rd respondent. The 3rd respondent is clearly L1 in Group Total of Group-G i.e., Rs. 3,59,99,150/- on the basis of which the committee decided to conduct further discussions/negotiations, which is Rs. 4.56 lakhs higher for the half-yearly payment and will result in a loss of Rs. 45.69 lakhs to Government Exchequer over the entire contract period of 5 years. It is submitted that the petitioner has not referred to all the relevant clauses contained in the tender document. The following are some of the relevant clauses contained in the tender documents. The tender notice empowers the department to amend or cancel the tender without assigning any notice or reasons. The petitioners having agreed to all the terms and conditions of the tender, now cannot contend that the department has unilaterally taken action to consider the case of the third respondent. It is submitted that Chapter 7 of the Tender details prescribed the eligibility criteria to be fulfilled by all the tenderers. It is not the case of the petitioner that the respondent No. 3 has not fulfilled the eligibility criteria prescribed by the department. If the respondent No. 3 has failed to fulfil these eligibility criteria, certainly the department will not entertain tender submitted by the third respondent. These are the essential conditions contained in the said clauses. Apart from that the other information which sought to be required by the department are not so essentials to disqualify the tender of the third respondent, such as by not quoting the rate of tax separately. Clause 4(c) of the General Terms and Conditions also speaks that the commercial bid as prescribed should be filled in original for consolidated rate per school per 5 years contract period. The bid must be unconditional and in the format given in the tender document. The petitioner has filed his tender with condition stating that tax quoted by him are variable as per the Government notifications. Hence, the tax as applicable from time to time will be charged. This is the conditional offer and on that ground alone the tender submitted by the petitioner is liable to be rejected. From the above terms and conditions of the bid documents, the commercial bid is only for consolidated rate and not to be bifurcated such as with tax, without tax. It is submitted that the information which determine clauses from the tender about the tax and without tax is only for the purpose of knowing the percentage of tax i.e., to be collected by the various State Governments. It has no relevance in awarding the contract to any particular tenderer. The department is concerned only with the total figure including the tax. The contract has to be awarded to the lowest tenderer whose quotation refers including the tax etc. It is for the contractor or to the Government and this department is concerned with the consolidated figure. Hence even if any tenderer fails to quote rate of tax, it will not vitiate his tender, tender document and if he fulfils all other relevant criteria prescribed by the department, his tender will be considered, if it is lowest one and in the interests of the department. The entire contentions of the petitioner that the department has deviated from its own prescribed formats by it, the third respondent has not filled the columns of without tax as per the terms and conditions of the tender and tender document and the same is liable to be rejected etc., are untenable and it does not stand to the legal scrutiny. It is submitted that the third respondent has completed his bid document by giving all relevant information and in Envelop-B i.e., commercial bid document, he has quoted the total figure, which includes the tax. As already submitted this department has is concerned about the total figure quoted by the tenderer and it has no relevance, ultimately to come to the conclusion if the taxation rate is not quoted. While mere non-quoting of taxation amount, it will not have fatal effect. Admittedly, the total figure quoted by the petitioner is more than the figure quoted by the 3rd respondent and the department will be benefited by more than 45 lakhs for a period of 5 years on the basis of the rates quoted by the 3rd respondent. There is no prejudice caused to the petitioner and the deviation which is permissible by the subsequent amendments and the petitioner was aware about the change in the proforma. The original commercial bid document proforma i.e., Envelope-B also did not contain the rates of sales tax. The note beneath it includes that for the purpose of tender evaluation, the total col. 1 and 2 alone shall be reckoned. Thus the intention of the department is very clear that the total amount of all the columns will be alone taken into consideration, but not the individual columns. Subsequently, the said Envelope-B of the commercial bid document was amended with a different proforma, which speaks that the tenderer has to quote the rates without tax and with tax. Even assuming that if any tenderer fails to quote the column of without tax and gives the figure with tax, the ultimate decision will be taken only on basis of that the tax goes. The department is no way concerned with the payment of the tax and it is for the contractor to pay any tax etc. Thus the Government has to see what is total rate of contract and if the tenderer quotes lowest rate, the Government will further negotiate with him. It is submitted that Clause 7(a) of the general terms and conditions and Chapter 3 which is equal to Clause 8(a) of general Terms and Conditions of Technical bid speaks that all the particulars must be furnished as asked for in the Technical bid in the bid document. The 3rd respondent has furnished all the particulars and he has further stated that the rate quoted by him is inclusive of all taxes. Clause 8(a), clearly states that the tenderers have to quote a rate both in words and figures and it is not the case of the petitioner that the 3rd respondent has not quoted the rate clearly. With regard to the rejection of the tender, Clause 8(d) clearly says that special information as required by the technical bid must be furnished. Hence the bid is liable to be rejected. The said Clause will apply only for a technical bid, but not for commercial bid.

8. The 3rd respondent also filed a counter-affidavit stating that the petitioner has no locus standi to file the writ petition. It is stated that admittedly the petitioner participated in the tender process as a consortium of Companies to satisfy the eligibility criterion as per general terms and conditions of the bid agreement which among other things prescribes that the bidder should have (a) at least 3 years experience in delivering computer education, (b) trained at least 2,500 students, (c) at least 10 training centers in the State, (d) at least 50 instructors under their control holding educational qualifications in Computer Science from any recognized University or Institutions and (e) required financial resources to undertake the contract. It is stated that the writ petitioner alone does not satisfy the eligibility criteria and for the said purpose have formed a consortium of Companies consisting of the writ petitioner, M/s. Everonn India Limited, Gemini Communications Limited and SISICMTES. When the tender is submitted on behalf of the consortium, this petitioner alone is not competent to file this WP as if it had submitted individual bid in respect of the tender notice which is the subject-matter of the writ petition and hence the writ petition is liable to be dismissed for non-joinder of necessary parties. It is also further stated that without prejudice to the said Contention it is respectably submitted that as per Condition No. 28 of the Special Terms and conditions and information to bidders, the bidder shall sign with the seal on every page of the tender document. Subsequently when amendments and clarifications were issued to the bid pursuant to the pre-bid conference held on 9-7-2001, a note was appended under the heading "important note" stating that the bidder should sign and put office seal on all pages of amendments/ clarifications and the said condition is essential condition to be fulfilled for consideration of the bid. It is reliably learnt that the petitioner did not subscribe signature and the seal on each page of the bid document and as such the tender is liable to be rejected in limini for not complying with necessary tender conditions and thus the petitioner who has filed an invalid bid has no locus standi to file the present writ petition. It was also further stated that this writ petition is premature. Admittedly the tender process is in mid way and the tender is yet to be awarded in favour of the successful bidder. It is also open to the respondents 1 and 2 either to go ahead with the process of finalisation or it may resort to other actions as is permissible in law. The petitioner is not entitled to invoke the remedy of judicial review under Article 226 of the Constitution of India at the intermediary stage of evaluation and thus the writ petition is liable to be rejected in limini as the condition requisite for such review are not available at this stage. It is submitted that as per Condition 5 of Chapter IV, (Special Terms and Conditions to the Bid) the bidder is obligated to quote the rate for 5 years contract period and further the tenderer is obligated to submit a declaration stating that the commercial bid was submitted without any conditions. This respondent learnt and believe the same to be true that the writ petitioner had quoted its price with a rider that the subsequent increase in taxes is to account of the respondents 1 and 2. This is contrary to the terms of the Bid Document and amounts to a conditional bid and is liable to be rejected. It is further submitted that the 3rd respondent is a Company incorporated under the provisions of the Companies Act in the year 1986. The 3rd respondent Company is a pioneer in imparting computer education in India and also abroad and it had 2350 Computer Education Centres spread over 40 countries across the Globe. The 3rd respondent company trained about 20 lakh students in computer education and is the first company in Asia to obtain Certification of ISO 9001 for education support services. The 3rd respondent Company executed similar projects of providing computer education in Government Schools in the State of Gujarat and is executing similar projects in the States of Tamilnadu and Karnataka. in fact the 3rd respondent-Company is executing the pilot project of providing computer education in 23 identified schools, one in each of the Districts of the Andhra Pradesh pursuant to which the present tender notification was issued to provide such facilities in other Government Schools in the State of Andhra Pradesh. The 3rd respondent is providing computer education to its employees and it has trained about 10,000 State Government employees. The 3rd respondent company's total turnover is of Rs. 577 crores during the financial year 2000-2001 and the turnover relating to the computer education is about Rs. 352 crores which demonstrates that the 3rd respondent is a company primarily engaged in imparting computer education and is not a company set-up for the purpose of participating in the tender, like any other consortium companies which work together for the purpose of executing a contract.

10. After counter-affidavits are filed by the respective parties, reply affidavits also were filed wherein the stand taken in the main affidavit in support of the writ petition had been repeated and reiterated and it was specifically stated that the bid document specifically requires every bidder to quote the price with and without tax separately in separate columns meant for the same and the said format was introduced by the 1st and the 2nd respondents by way of amendments to the bid conditions after the pre-bid conference. Hence it is not open to the 1st respondent to contend that it can consider a bid submitted by a bidder even without such information and it is relevant to note that no right is reserved in the employer i.e., the 1st respondent to relax the bid conditions or to seek information, which is not furnished by a bidder, which ought to have been done by it and further even assuming that the 1st respondent has such an inherent right, no such information was sought from the 3rd respondent and the tax component of the price quoted by the 3rd respondent is sought to be arrived at on some ad hoc basis for which there are no rules or guidelines in the bid document. It was further stated that it is an admitted fact that for various groups included in the tender a number of bids have been received and each bidder has quoted its own percentage as the tax component of the price varies from 1.5 to 11.5% and it shows that each bidder had calculated the tax component separately depending on various factors and perceptions and there is no uniformity and in such a case, the 1st respondent cannot contend that it will take the lowest tax component in the bids received for Group-G and give the benefit of deduction in the price quoted by the 3rd respondent. It was also stated that it is not stated that in the counter-affidavit filed by respondents 1 and 2 as to how the said objective is achieved by the action of the 1 st respondent in giving a deduction of a particular percentage of tax to the price quoted by the 3rd respondent and such an objective could have been achieved if there were to be uniform tax structure for all the components through out the country and that precisely is the reason as to why the different bidders have quoted different percentage as the tax components of the prices offered by them. It is further stated that the contention of the 1st respondent that the quoting of prices with taxes and without taxes is not an essential condition in the bid document and the bid document is absolutely erroneous and the said condition was incorporated and a separate format was prescribed after a pre-bid conference and the same indicates that the 1st respondent thought that furnishing of such information by the bidders is essential for evaluation of their bids and it was also stated that when certain conditions had been specified in the bid document there cannot be any deviation at all and hence the tender of the 3rd respondent should have been rejected on that ground. It was also specifically stated that the petitioner had purchased the bid document in its name and had bid for the work in its name though on behalf of consortium of companies and formation of consortium is permitted under the bid conditions and hence the writ petition is maintainable. The allegation that the petitioner had not signed and affixed its seal on each page of the bid document also is denied. At any rate the bid of the petitioner is considered as valid by the employer and hence it is not open to the 3rd respondent to take such a plea and the further contention that the writ petition is premature also is untenable. It is further stated that the offer made by the petitioner would not amount to a conditional offer and the bid cannot be rejected on such a ground and at any rate the bid of the petitioner had not been rejected and had been considered and hence the said plea cannot be taken by the 3rd respondent. It is further stated that once the petitioner is found technically qualified after its technical bid is evaluated it becomes irrelevant whether the petitioner in order to qualify itself is participating as a consortium or what is the turn-over of the petitioner or the 3rd respondent and all the bids of the technically qualified bidders shall be evaluated in terms of the bid conditions alone and all other criteria are totally irrelevant. It is further stated that if the 3rd respondent is of the opinion that there is no element of tax involved in the transaction it should have stated so in the bid document. If the bid of the 3rd respondent is taken into consideration and if no deduction is given to the taxes, the bid of the petitioner will be the lowest and the petitioner is entitled to be called for negotiations. It is not for the 3rd respondent to state whether the bidder is obligated to specify the bid amount with or without taxes inasmuch as the bid document requires that each bidder shall quote the price with and without taxes separately and specific columns are provided for the said purpose and it is relevant to not that the amendments to the bid documents were issued specifically incorporating the said provision and separate columns were also provided to enable the bidders to furnish relevant information after a pre-bid conference and this itself indicates that it was mandatory on the part of every bidder to give the necessary information and quote their price with and without taxes. All other allegations made in the counter-affidavit of the 3rd respondent also had been denied specifically taking a stand that in the facts and circumstances of the case, the very tender of the 3rd respondent is liable to be rejected for non-compliance of the mandatory provisions.