w w w . L a w y e r S e r v i c e s . i n



J Kumar Infra Projects Limited v/s State of Gujarat


Company & Directors' Information:- S KUMAR PROJECTS PRIVATE LIMITED [Active] CIN = U70101WB2009PTC134015

Company & Directors' Information:- V S A INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45400TG2011PTC074588

Company & Directors' Information:- K N INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45200TG2008PTC058128

Company & Directors' Information:- B L INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45400DL2014PTC266491

Company & Directors' Information:- K. C. INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45209NL1990PTC003414

Company & Directors' Information:- K K INFRA PROJECTS (INDIA) PRIVATE LIMITED [Active] CIN = U45200TG2007PTC056630

Company & Directors' Information:- A E INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45200MH2009PTC196191

Company & Directors' Information:- S R R INFRA PROJECTS LIMITED [Strike Off] CIN = U45209TG2008PLC058571

Company & Directors' Information:- N R R INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U70200TG2010PTC067299

Company & Directors' Information:- K AND G INFRA PROJECTS PRIVATE LIMITED [Under Process of Striking Off] CIN = U45200KL2010PTC027108

Company & Directors' Information:- R Y INFRA PROJECTS PRIVATE LIMITED [Under Process of Striking Off] CIN = U45400TG2013PTC091764

Company & Directors' Information:- K C R INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45200TG2009PTC064374

Company & Directors' Information:- M. D. INFRA - PROJECTS PRIVATE LIMITED [Active] CIN = U45400MH2009PTC193074

Company & Directors' Information:- V G INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45209TG2011PTC074184

Company & Directors' Information:- J S V INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70200TN2010PTC078632

Company & Directors' Information:- S. G. INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45400DL2009PTC192400

Company & Directors' Information:- D & G INFRA AND PROJECTS PRIVATE LIMITED [Active] CIN = U45203PN2009PTC133571

Company & Directors' Information:- G INFRA PROJECTS LIMITED [Active] CIN = U45400TG2015PLC102010

Company & Directors' Information:- D. K. INFRA PROJECTS (INDIA) LIMITED [Strike Off] CIN = U45400WB2011PLC170421

Company & Directors' Information:- J S INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2011PTC163788

Company & Directors' Information:- B S INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2010PTC151174

Company & Directors' Information:- M R INFRA & PROJECTS INDIA PRIVATE LIMITED [Strike Off] CIN = U45209TG2011PTC074858

Company & Directors' Information:- G-9 INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45202MP2021PTC054704

Company & Directors' Information:- S V V INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45200TG2009PTC065498

Company & Directors' Information:- K M M INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45209TG2013PTC088878

Company & Directors' Information:- A R INFRA PROJECTS LIMITED [Active] CIN = U45400DL2010PLC198594

Company & Directors' Information:- N-INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45200TG2008PTC057620

Company & Directors' Information:- M. M. INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U70109WB2011PTC165005

Company & Directors' Information:- D R R INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45200TG2007PTC055772

Company & Directors' Information:- R V INFRA PROJECTS INDIA PRIVATE LIMITED [Active] CIN = U45400WB2011PTC158257

Company & Directors' Information:- U M T INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45400MH2013PTC244469

Company & Directors' Information:- R K B INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45400WB2009PTC132587

Company & Directors' Information:- A H V INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U74999WB2012PTC180309

Company & Directors' Information:- G. S. INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45400DL2008PTC174931

Company & Directors' Information:- P B S INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70102TG2008PTC060836

Company & Directors' Information:- R M INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45400MH2011PTC224655

Company & Directors' Information:- M C W INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U74120MH2013PTC244153

Company & Directors' Information:- S. A. INFRA PROJECTS (INDIA) PRIVATE LIMITED [Active] CIN = U45400TG2015PTC099812

Company & Directors' Information:- C Z INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45400TG2016PTC103916

Company & Directors' Information:- P AND C INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45200TN2014PTC096607

Company & Directors' Information:- U K PROJECTS AND INFRA PRIVATE LIMITED [Active] CIN = U45200TN2015PTC102111

Company & Directors' Information:- M N C INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45200TG2008PTC058369

Company & Directors' Information:- K V P INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45209TG2011PTC073318

Company & Directors' Information:- L K D INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45209TG2013PTC085748

Company & Directors' Information:- B R S INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45201DL2013PTC248023

Company & Directors' Information:- D V INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U45200AP2014PTC095005

Company & Directors' Information:- N V R INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U70100AP2015PTC097985

Company & Directors' Information:- D. B. INFRA PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45201GJ2010PTC059696

Company & Directors' Information:- R A INFRA PROJECTS PRIVATE LIMITED [Active] CIN = U29309RJ2021PTC075070

Company & Directors' Information:- V J INFRA PROJECTS INDIA PRIVATE LIMITED [Active] CIN = U45500AP2021PTC118892

    Special Civil Application No.425 of 2011

    Decided On, 11 February 2011

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE D.H. WAGHELA & THE HONOURABLE MR. JUSTICE K.A. PUJ

    For the Appearing Parties: R.S. Sanjanwala, Dilip L. Kanojiya, P.K. Jani, Mini Mair, Advocates.



Judgment Text

K.A. PUJ, J.

(1) The petitioner has filed this petition under Article 226 of the Constitution of India praying for quashing and setting aside the decision of the respondents to reject the bid submitted by the petitioner. The petitioner has also prayed for the direction to the respondents to consider the bid submitted by the petitioner and to permit the petitioner to participate in the bidding process.

(2) This Court has issued notice on 18.01.2011 and observed that any finalization of bid for contract in respect of Package 8 of the Tender in question shall, in the meantime, be subject to the order of this Court. This Court has passed further order on 27.01.2011 granting ad-interim relief to the effect that the respondents shall not finalize the bids for the contract in respect of Package 8 of the tender in question, till the next date of hearing. The said ad-interim relief is extended from time to time.

(3) It is the case of the petitioner that as a part of its initiative to develop select State Highways in Gujarat with private sector participation on a Design, Build, Finance, Operate and Transfer Basis (DBFOT Basis) - Annuity Basis, the respondents published tender notices in various newspapers and also on its (N) procurement Website on 04.09.2010 and 18.09.2010. The parties interested were informed about the 8 different packages being taken up for development with private sector participation and those interested in participating were invited to obtain details of the packages and the Request For Proposal (RFP). The petitioner offered its bid in relation to Package No.8 being 108.4 Kms. stretch of Nadiad " Madhuda " Kathalal " Kapadvanj " Bayad " Modasa stretch of State Highway.

(4) The RFP prescribed several terms and conditions. The bidding process involved submission of "key submissions and bid capacity submissions and Financial bid". The RFP prescribes the dates by which the documents were to be submitted and also prescribe the method of submission of the documents. The bidders were required to submit e-tender by 19.11.2010 and were also required to submit a hard copy of the tender by 26.11.2010. This submission of e-tender was by uploading the duly filled tender along with the requisite documents on the (N) procurement Website of the respondents. The submission of the hard copy was to be by forwarding the envelope containing the bid and the relevant documents to the respondent No.3. After the RFP was issued, the respondents issued five different addendums. The date of submission was extended. Moreover, substantial amendments were made to the various terms and conditions having material bearing on the technical and the financial bids to be submitted.

(5) On 08.12.2010 i.e. day prior to the date of the submission of the e-tender, last addendum was issued. On 09.12.2010, the petitioner successfully uploaded the e-tender and thus submitted their technical as well as financial bid. The modified Clause 2.11.7 obliged the bidders to submit the hard copy through Registered Post Acknowledgment Due only. The petitioner after submitting the E-bid on 09.12.2010 inadvertently sent a personal messenger with the envelope to the office of the respondent No.3 on 17.12.2010. However, 17.12.2010 was a public holiday (Bakri Id), but the Tender Clerk was present at the office. The envelope was, however, not received by the Tender Clerk who advised the personal messenger to deliver it on 18.12.2010. On 18.12.2010, the envelope was delivered to the office of respondent No.3. The envelope was received by the office of the respondent No.3 without any demur or protest. Had the hard copy not been accepted as it was hand delivered, the petitioner could have dispatched the same by RPAD. The respondent No.3 also sent e-mail to the petitioner on 18.12.2010 inviting the petitioner for the opening of the tenders on 20.12.2010. Shri C. P. Chaturvedi, General Manager (Projects) of the petitioner Company attended the office of the respondent No.3 on 20.12.2010 for opening of tender which was being supervised by the respondent No.2. The bid opening started at around 5.00 p.m. and the representative of the petitioner was informed by the respondent No.2 that the bid submitted by the petitioner would not be opened as the hard copy thereof was not sent by Registered Post AD, but was submitted by hand delivery. An e-mail was also dispatched to the petitioner on 20.12.2010 informing the petitioner that the bid of the petitioner was not being considered. The stand taken by the respondent Nos.2 and 3 came as a surprise to the petitioner. The representative of the petitioner protested against the hyper-technical ground taken by the respondent Nos.2 and 3 and tried to persuade them not to reject the bid submitted by the petitioner. After some discussions, the representative of the petitioner was informed that an appropriate decision would be taken. The representative of the petitioner also immediately made a written representation. Though the petitioner has not been served with any communication thereafter, the petitioner received back the envelope containing the hard copy and the various documents on 13.01.2011.

(6) Being aggrieved by the said decision, the petitioner has preferred this petition before this Court invoking its extraordinary writ jurisdiction.

(7) Mr. R.S. Sanjanwala, learned advocate appearing for the petitioner has submitted that as per the procedure prescribed in the tender document, the bidders were required to submit e-tender and a hard copy by particular date. The submission of e-tender was by uploading the duly filled tender along with the requisite documents on the (N) procurement Website of the respondents and the submission of the hard copy was to be by forwarding the envelope containing the bid and the relevant documents to the respondent No.3. Clause 2.11.5 indicates as to how envelopes are to be addressed to and Clause 2.11.7 states that bids submitted by fax, telex, telegram or e-mail shall not be entertained and shall be rejected. Thus, the RFP as originally issued obliged the bidder to submit the envelope containing the tender documents but did not prescribe the manner in which such submission was to be made and left it to the discretion of the bidder. He further submitted that the bidding process involves submission of e-tender which, by very nature of things, would not include the duly signed documents in original such as Bank Guarantees etc. which are to be submitted along with the bid document. Thus, the process also involves submission of hard copy which would include duly signed documents in original. However, the technical specifications and the financial bid set out in the hard copy have to match with the E-tender. The bidder is not entitled to make any changes. Clause 2.11.9 of the RFP further provided that in case of ambiguity in the bid submitted through e-tendering process, the bid submitted through hard copy would be referred for clarification and if there is any discrepancy between the information submitted in the hard copy and through e-tendering method, the information provided in the e-tendering shall prevail for all purposes. Thus, for all purposes, primary submission was to be by the e-tendering process whereas submission of all hard copy was secondary and the details and documents submitted by the e-tendering process were to prevail over the hard copy for all purposes.

(8) Mr. Sanjanwala further submitted that after the RFP was issued, the respondents issued five different addendums. The addendums were collectively larger in size than the original RFP and contained various modifications of the RFP Clauses. The addendums were issued from time to time and the bidders were expected to submit their bids in accordance with the RFP as modified by the addendums. In addition to the addendum, the document containing response to the bidder"s queries was also issued which also clarified and explained various clauses of RFP. The subsequent addendums and the document containing response to the bidder"s queries created several complications. The submission of the bids had to be undertaken after harmonizing and correlating the contents of the RFP and the addendum, the focus obviously being on the material terms of the RFP and the addendums.

(9) Mr. Sanjanwala further submitted that through the addendums, not only were the submissions dates modified, the material terms of RFP which would have a bearing on the technical as well as the financial bid were also modified. The issuance of various addendums made it difficult for the petitioner and the other similarly situated bidders to adhere to the time limits. The last addendum was issued on 08.12.2010, just day prior to the date of the submission of the e-tender. The said addendum had a significant bearing on the financial bid and the petitioner and other similarly situated bidders became aware about the last addendum only on 09.12.2010, which was the last day of submission of e-tender and the petitioner had to modify its financial bid to give effect to the last addendum. The petitioner accordingly submitted its e-tender on 09.12.2010.

(10) Mr. Sanjanwala further submitted that the RFP in Clauses 2.11.5 obliged the petitioner to submit the hard copy to the respondent No.3 at its Ahmedabad address. The usual practice is to submit such hard copies by hand delivery. However, in one of the addendums, Clause 2.11.7 was modified and the bidders were asked to submit the hard copy through Registered Post Acknowledgment Due only. Instead of sending the hard copy by RPAD, the petitioner sent it by hand delivery. The post office is situated in the same compound as the office of respondent No.3. Had the tender not been received by the clerk and had the petitioner been informed that the hard copy cannot be delivered by hand and should be sent by RPAD, the petitioner could have immediately dispatched the hard copy on the same day by RPAD. He further submitted that the submission of hard copy along with the documents by hand delivery is preferred by most bidders as the envelope becomes very bulky. Moreover, there is certain uncertainty involved in dispatch by Regd. Post AD and the parties are always apprehensive about the receipt of the envelope within the time prescribed. The mode of submission is otherwise irrelevant in tenders involving E-submissions and as such, by and large practice of submitting by hand delivery is preferred over any other mode of service. There is no particular rationale or logic in prescribing the mode of delivery, as, for all purposes, once E-tender is submitted, the bidder is bound by such submission and the bid will be evaluated based on the contents of the E-tender. Reference to hard copy is made only in cases of ambiguity. Thus, mode of submission was inconsequential to the tender process and no advantage or disadvantage resulted in favour of any party by submission by hand delivery.

(11) Mr. Sanjanwala further submitted that the mode of submission of the hard copy is not a material term of the contract and by very nature of things, through the tender process, the focus is always on the material terms of the contract. The various addendums issued from time to time complicated the matters substantially and the mode of submission of hard copy not being a material term of the tender process was lost track of and inadvertently, the petitioner submitted the tender by hand delivery, which is always preferred mode of submission.

(12) Mr. Sanjanwala further submitted that in DBFOT Tenders, the bidders are expected to make their own survey of the stretch of Highway involved and to draw their bills of quantity (BOQ) and to submit the technical as well as financial bid on the basis of their assessment of the work involved Normally, in Government contracts, quantities are derived and the bidders are expected to submit their technical as well as financial bids based on the estimated BOQ furnished by the tendering authority. However, as the BOQ were to be assessed by the petitioner before submitting the technical and financial bid, the petitioner had to avail services of several professional consultants. In the process, the petitioner has spent atleast an amount of Rs.50 Lacs. The petitioner has thus acted to its prejudice and the tender submitted by the petitioner is not being considered on a hyper-technical ground and for breach of a condition, which is not material to the entire tendering process. He has, therefore, submitted that the action of the respondents is grossly violative of the petitioner"s fundamental rights guaranteed by Articles 14, 19 and 21 of the Constitution of India. The petitioner Company is entitled to participate in the tender process and the entitlement of the petitioner is being defeated on a hyper-technical ground and for the alleged breach of modified condition of RFP which does not have any material bearing on the tendering process. He further submitted that for all purposes, the e-tender submitted by the petitioner has to prevail. The submission of the hard copy is to facilitate submission of documents in original. The hard copy is just a copy of the e-tender along with the other documents and the submission of the hard copy is essentially procedural. All the clauses in the RFP concerning the submission of hard copy as such are not material terms of the RFP and any breach thereof would not have material bearing on the tendering process. The submission of RFP by hand delivery as opposed to submission by RPAD is thus not material to the tendering process and any breach of such condition is inconsequential. He further submitted that the tendering process is intended to ensure that technically qualified person undertakes the work for the Government and that the Government pays the lowest possible price for the work to be undertaken. The petitioner"s financial bid, if found to be lowest, would result in substantial loss to the exchequer. Thus, the exchequer is being made to suffer for the alleged breach of an immaterial term of the bidding process. The decision of the respondents not to permit the petitioner to participate thus has financial complications and is not only prejudicial to the petitioner, but to the State exchequer. He has, therefore, submitted that the prayers made in the present petition deserve to be granted.

(13) In support of his submissions, Mr. Sanjanwala relied on the decision of the Apex Court in the case of Poddar Steel Corporation V/s. Ganesh Engineering Works and others, (1991) 3 SCC 273 wherein it is held that as a matter of general proposition, it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories " those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case, the authority issuing the tender may be required to enforce them rigidly. In the other cases, it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases. In the case before the Apex Court, the certified cheque of the Union Bank of India drawn on its own branch was to be treated as sufficient for the purpose of achieving the object of the condition and the Tender Committee took the abundant caution by a further verification from the Bank. In this situation, it was held to be not correct to hold that the Govt. (Diesel Locomotive Works, Indian Railways) had no authority to waive the technical literal compliance of the tender condition specially when it was in its interest not to reject the said bid which was the highest.

(14) Mr. Sanjanwala further relied on the decision of the Apex Court in the case of B.S.N. Joshi and Sons Limited V/s. Nair Coal Services Limited and others, (2006) 11 SCC 548 where also it is reiterated that the requirements in tender notice can be classified into two categories " those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. If there are essential conditions, the same must be adhered to. If a party fails and/or neglects to comply with the requisite conditions which were essential for consideration of its case by the employer, it cannot supply the details at a later stage or quote a lower rate upon ascertaining the rate quoted by others. The Court further held that the application of law, however, would depend upon the facts and circumstances of each case. The terms contained in the notice inviting tender may have to be construed differently having regard to the fact situation obtaining in each case. No hard and fast rule can be laid down therefor.

(15) Based on the above facts and the legal position, Mr. Sanjanwala has submitted that the decision taken by the respondents of rejecting the bid of the petitioner deserves to be quashed and set aside and the petition be accordingly allowed.

(16) On service of notice, Mr. P.K. Jani, learned Government Pleader with Ms. Mini Nair, learned Assistant Government Pleader appeared for the respondents. An affidavit-in-reply is filed by the Executive Engineer, R and B department, Ahmedabad on 24.01.2011, to which an affidavit-in-rejoinder is filed on behalf of the petitioner.

(17) Mr. Jani submitted that as a part of its initiative to develop select State Highways in Gujarat with private sector participation on a Design, Build, Finance, Operate and Transfer Basis (DBFOT Basis) - Annuity Basis, the respondents published tender notices in various newspapers and also on its (N) procurement Website in respect of 7 packages on 04.09.2010 and for 8 packages on 18.09.2010. For package Nos.1 to 8, bid documents and other details available were downloaded from 24.09.2010 onwards. The last date for e-tender submission was upto 09.12.2010 and for hard copy submission was permitted upto 18.12.2010, which was informed to the bidders vide communication dated 16.11.2010. He further submitted that there is no dispute about the fact that the petitioner had caused the bid to be delivered by hand as against the clear instruction of the RFP that the submission of bids should only be done through RPAD. He has, therefore, submitted that it is a case of gross negligence whereby, the petitioner by using the noble platform of this Court, has attempted to arm-twist the Government into accepting his bid which has been rejected in accordance with the terms of the RFP. He further submitted that the bid of the petitioner was not submitted according to Clause 2.11.7 and hence, it was not opened. The submission of bids is required to be done by uploading the bid as per e-tender upto 09.12.2010 and submission of hard copy was to be made on or before 18.12.2010 as per RFP Clause No.2.11.7 read with addendum and corrigendum issued thereto. He further submitted that when any addendum or corrigendum is issued and uploaded on the website of e-tender service provider, an unmonitored automated mail is generated from the system of e-tender service provider and mailed to the concerned user of the system who have visited that site for the bids. So, the user / bidder is getting immediate information of the issuance of any addendum and corrigendum.

(18) Mr. Jani further submitted that the petitioner was required to submit the bid as per the provisions of RFP read with addendum and corrigendum issued thereto. The contention of the petitioner that the petitioner's bid was accepted by the respondent No.3 office is nothing but in violation of the condition of the tender document and the clerk in the office of the respondent No.3 does not have any power to accept or reject the bids. The addendum and corrigendum clearly states that bids delivered by hand would not be entertained and would be rejected and there is no bar on receiving of bids till the due date and time. Rejection of bids is done through a process and the bidders were informed at the time of opening of bids whether their bids are being accepted or rejected. He has, therefore, submitted that the petitioner's bid was rejected after following the due process of law. (19) Mr. Jani further submitted that the bid opening process was carried out on 20.12.2010 by the Bid Opening Committee appointed by the Government of Gujarat, as per Clause No.2.11.7 of RFP read with addendum and corrigendum issued thereto. The bid opening minutes was drawn which was signed by some of the bidders' representative who were present during bid opening process and by the members of the Bid Opening Committee. The petitioner's representative also remained present during the process of bid opening. Since the submission of hard copy by the petitioner was not in accordance with the condition of the tender document, the said bid was returned to the petitioner unopened vide letter dated 05.01.2011.

(20) Mr. Jani further submitted that the e-tender was the main submission while the hard copy was merely required for reference in cases of ambiguity. He, however, submitted that the submission of bid by the e-tender as well as by hard copy is very much essential. As per Clause 1.1.3 and Clause 2.10.1 of the RFP, the bid submission would be complete only when the bids are submitted both on e-tender as well as in the hard copy as per the procedure laid down therein. He further submitted that the physical submission was to include three documents which were not to be submitted through e-tender submission. The physical submission was also to include Bank Guarantee for bid security and demand draft for bid process. These documents are very vital and decisive of the responsiveness of the bids once technical bids are opened.

(21) Mr. Jani further submitted that the petitioner's contention that the issue of addendums and responses to queries altered the material and financial terms of the RFP and caused confusion in the minds of the bidders is nothing but preposterous as, if the petitioner had read the RFP and the subsequent addendums, they would have known that there are total 6 and not 5 addendums as claimed in the petition. Secondly, it is made very clear in the RFP that the Government is well within its powers to issue the addendums altering the terms of the RFP any time before the bid due date. Hence, there is no illegality involved in issuing addendums as long as they are prior to the bid due date. He further submitted that the petitioner was bound to read each and every addendum carefully till the last date of submission of bids as every addendum is considered to be a part of the RFP and is to be read in conjunction with the same. He further submitted that the addendum III which made the RPAD mandatory was issued on 22.11.2010, which was almost a month before the bid due date i.e. 18.12.2010 and hence, the Government cannot be accused of not giving enough time to the bidders and causing complications. The onus to be diligent in preparation and submission of bids in the form and manner specified in the RFP lies with the petitioner and it cannot pass on the burden of its callousness to the State.

(22) Mr. Jani further submitted that as per the RFP, the bidder should satisfy and conduct such studies as they deem fit before submission of bids and the Government would not be held responsible for any expenses incurred by the bidders. As per Clause 2.4, the bidders are responsible for all the costs associated with the preparation of their bids and their bid process. The State Government would not be responsible or in any way liable for such costs, regardless of the conduct or outcome of the bidding process. The petitioner might have suffered the alleged financial setback on account of its own negligence in not following the prescribed term of the RFP and bidders are not under any obligation to spend on initial studies.

(23) Mr. Jani further submitted that there is no substance in the argument of the petitioner that dispatching bid by RPAD is difficult and fraught with uncertainty. RPAD is the most undisputed and legally valid mode of post. That clause was included to avoid any other type of manipulation after considering the past experience. 72 bids were received for total 8 packages and 16 bids were received for package No.8. This would reveal that the entire process was as transparent as it could have been and caused no confusion in the minds of the diligent bidders. The procedure laid down in RFP was widely accepted and embraced. He has, therefore, submitted that the petitioner's case is of a missed opportunity and an attempt to circumvent the entire process by filing this petition, which if entertained, may result in bias and detriment to other bidders.

(24) Mr. Jani further submitted that the State Government in the interest of equity, fairplay, competition and transparency and also after considering the past experiences, chose to follow the provisions of RFP in true letter and spirit. To decide the tender process is the prerogative of the Government and is essentially an administrative function and a policy decision and no remedy lies against it until a fraud or malafide is established. This is not even pleaded by the petitioner. He further submitted that if the decision of the respondent is quashed and set aside and the petitioner is permitted to resubmit his physical bid, the petitioner would have a chance to rectify his other errors which he might have made in the first physical submission and which are crucial for deciding responsiveness. 16 other bids were also not opened on the same ground as the same were received either by hand delivery or by courier. So, they are also required to be given opportunity and if that is done, then other 72 bidders whose bids were received as per the procedure laid down would come before this Court challenging the said action. If the entire bidding process is quashed, the road improvement would be delayed. The benefits of road improvement to road users would also get delayed and Government's efforts to undergo the bidding process would go in vain. He has, therefore, submitted that the petition deserves to be dismissed with cost.

(25) In support of his submissions, Mr. Jani relied on the decision of the Apex Court in the case of Sorath Builders V/s. Shreejikrupa Buildcon Limited and another, (2009) 11 SCC 9, wherein while setting aside the High Court's order and allowing the appeal, the Apex Court held that the respondent No.1 was negligent and insincere in not submitting his pre-qualification documents within the stipulated time though he had the information that there was a time schedule attached to the notice inviting tenders. The terms and conditions of the tender are required to be adhered to strictly and, therefore, respondent No.2 was justified in not opening the tender submitted by respondent No.1 which was late by three days. No grievance could be made by respondent No.1 as the lapse was due to his own fault. The Apex Court has also considered the fact that the tender submitted by the appellant was the lowest amongst the eligible bidders and was accepted as it was found to be reasonable, tenable, plausible and valid. The Apex Court, therefore, held that the High Court went beyond its jurisdiction in setting aside the decision of the University. There was no fault or arbitrariness in the decision making process of the University.

(26) Mr. Jani further relied on the decision of the Apex Court in the case of Puravankara Projects Limited V/s. Hotel Venus International and others, (2007) 10 SCC 33, wherein it is held that the tender terms are contractual and it is the privilege of the Government which invites its tenders and courts do not have jurisdiction to judge as to how the tender terms should be framed. By observing that there was an implied term which was not there in the tender, and postponing the time by which the bank guarantee had to be furnished, in essence the High Court directed modification of a vital term of the contract. The Court further held that the statutory parameters have to be kept intact and the High Court can never alter or amend a contract entered into between the parties.

(27) Mr. Jani further relied on the decision of the Apex Court in the case of W. B. State Electricity Board V/s. Patel Engineering Company Limited and others, wherein it is held that where bidders who fulfill pre-qualification alone are invited to bid, adherence to the instructions cannot be given a go-by 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 constitutional values. The Court further held that the very purpose of issuing rules / instructions is to ensure their enforcement lest the rule of law should be a casualty. The Court also expressed its view in no uncertain terms that the contract is awarded normally to the lowest tenderer which is in public interest and it is equally in public interest to adhere to the rules and conditions subject to which bids are invited.

(28) Mr. Jani further relied on the decision of the Apex Court in the case of Jagdish Mandal V/s. State of Orissa and others, (2007) 14 SCC 517 wherein the Apex Court held that when the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical / procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succor to thousands and millions and may increase the project cost manifold. The Court further held that before interfering in tender or contractual matters in exercise of power of judicial review, the Court should pose to itself the question as to whether the process adopted or decision made by the authority is malafide or intended to favour someone, or whether the process adopted or decision made is so arbitrary and irrational that the court can say "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached" or whether public interest is affected. If the answers to these questions are in negative, there should be no interference under Article 226 of the Constitution.

(29) Based on the above facts and the settled legal position, Mr. Jani has strongly urged that the State Government has rightly rejected the bid of the petitioner as it is submitted in violation of a very vital condition of the tender document and hence, this Court should not entertain this petition.

(30) Having heard learned Counsel appearing for the parties and having considered their rival submissions, in light of the terms and conditions of RFP, facts and circumstances of the case as well as decided case law on the subject, the Court is of the view that there is settled legal position that the Court while exercising its power of judicial review of any administrative decision in relation to contractual matters, especially inviting tenders or awarding contracts, keeps utmost restrain on itself in entertaining any petition or showing any indulgence in the matter. The Apex Court has laid down certain guiding principles in relation to this issue. The terms and conditions are divided into two categories, those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary for the main object to be achieved by the condition. The essential tender conditions must be adhered to and if any one fails and/or neglects to comply with such essential conditions, the Court would not entertain any challenge to the alleged violation of such conditions. The moot question f

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or the Court is, therefore, to decide as to whether submission of hard copy by RPAD only is considered to be an essential condition, non-compliance of which would result into dismissal of the petition. The State Government has made it clear by way of addendum that the submission of hard copy must be made by RPAD only and if it is sent by hand delivery or through courier, the same would not be accepted. Not less than 72 bidders have complied with this condition. 16 bidders who have submitted their hard copy by other mode i.e. other than RPAD were not accepted nor their bids were opened. The petitioner is the only person who has challenged this decision of the State Government. The object of incorporating this condition in RFP is to give transparency to the entire tender process and also to maintain equity, fairplay and competition amongst the bidders. Submission of e-tender and hard copy is not one and the same. Atleast three documents are to be sent with hard copy which are not to be sent by e-tender. The Bank guarantee as well as demand draft are also not there in e-tender. The bidders Memorandum, profit and loss account as well as other important documents are also to be sent with the hard copy. Thus, it is an important and very vital mode of submission of tender. If it is allowed to be sent by hand delivery or through courier, there is a possibility of mal-practice and fixed time schedule may also be not followed. There is also a possibility of forming a cartel amongst few bidders who will keep a watch over the bidding process till last moment and on finding that no one else, out of their group comes forward to submit hard copy or some of them would withdraw themselves and thereby influence the entire bidding process. Thus, the condition to submit hard copy by RPAD only is considered to be very essential condition of RFP and strict compliance thereof is required to be adhered to. Any violation of this condition entails rejection of the tender. (31) The interference of the Court even otherwise is not called for in this petition as the said condition cannot be said to be an arbitrary condition. There is no allegation of mala fide or favouritism. The entire process is transparent and the condition is well within the knowledge of all bidders at least one month before the date of submission of hard copy. If the petitioner fails to comply with this condition, it is because of its own negligence and callousness. The Court cannot be expected to put premium on any callousness or negligence. The package containing hard copy is already given back to the petitioner. Any direction from the Court to consider the said package now would give rise to many other complications as there is no certainty that the package which was given back to the petitioner would again be resubmitted by virtue of Court's order. Not only this, the petitioner is not the only bidder whose tender was not accepted. There are other 16 bidders in relation to 8 packages and those would also come forward for consideration of their case. If all these cases are to be considered, the bidders who have complied with this condition may also raise their grievance and by virtue of such series of litigations, the entire process would get delayed which would ultimately be detrimental to the public interest. (32) Keeping all these issues in mind and considering the settled legal position, the Court is of the view that the decision taken by the State Government does not call for any interference by the Court. The petition, therefore, deserves to be dismissed and it is accordingly dismissed. Interim relief granted earlier stands vacated. No order as to costs.
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