1. This writ petition is filed by the petitioner, a company incorporated under the Indian Companies Act, 1956, seeking to declare the 4th and 5th respondents unqualified in the financial bid, since the same do not meet the technical specifications stipulated in the Request For Proposal for operations and management of Kerala State Wide Area Network [KSWAN], including revamping of infrastructure, and seeking a writ of mandamus, directing the 1st and 2nd respondents to re-evaluate the technical bids of the eligible technically qualified bidders. Material facts for the disposal of the writ petition are as follows:
2. The 1st respondent is the Kerala State Information Technology Mission [KISTM], a society registered under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act, 1955, and is an autonomous nodal IT implementation agency for Department of Information Technology, Government of Kerala, and the 2nd respondent is its Director. The 3rd respondent is Centre for Development of Advanced Computing [CDAC], R&D organization of the Ministry of Electronics and Information Technology. The 4th respondent is a Central Government company and the 5th respondent is Kerala State Electronics Development Corporation Ltd. [KELTRON].
3. The petitioner is allegedly the first business house to bring cellular services to the country and pioneered the e- Governance initiative that creates a high-tech interface between the Government and its citizens. In 2017, 1st respondent desired to revamp its infrastructure in keeping with the demand for increasing e-governance initiatives. Accordingly, to meet the current demands for the next three years, and various additional requirements, 1st respondent initiated a new tender process.
4. On 27.05.2017, 1st respondent issued Ext.P1, Notice Inviting Tender [NIT], and a Request for Proposal [RFP] for the 'Operations and Management of Kerala State Wide Area Network'. The scope of the RFP was to identify a suitable bidder to take over operations of the current infrastructure for a period of three years from the date of taking over as well as to revamp the network with new devices to be procured as part of the RFP, evident from Ext.P2.
5. The technical specifications of the RFP were prepared by the 3rd respondent which was appointed as the Project Consultant for the 1st respondent. The tender was an online tender invited in two cover format, viz., technical bid and financial bid. Clause 2.1 of Section II, which is the instruction to the Bidders, specifically states that 'submission of bids shall be deemed to have been done after careful study and examination of the tender document, its annexures and any subsequent corrigendum, if any, with full understanding of its implications', and that 'the interested bidders should submit their bids in compliance with the Tender procedures and Contract terms as prescribed in the Tender Document'. Clause 2.9 deals with modification of bids. Clause 2.11 of the Instruction to Bidders pertains to the opening and evaluation of the Pre-qualification-cum-Technical bids. Section VI of the RFP lays down the General Conditions. Clause 6.1 specifically notes that 'goods supplied under this Contract shall conform to the standards mentioned in the Technical Specifications, and, when no applicable standard is mentioned, to the authoritative standards, such standard shall be the latest issued by the concerned institution'.
6. Thereafter, a pre-bid clarification meeting was held by the 1st respondent to clarify any doubts that the prospective bidders may have in respect of the RFP. Petitioner also participated in the said pre-bid meeting. Following the meeting, Pre-Bid Clarifications and RFP Amendments were issued by the 1st respondent on 07.06.2017, evident from Ext.P3, the relevant pages of the Pre-Bid Clarifications and RFP Amendments.
7. Technical and financial bids were submitted by the petitioner, 4th and 5th respondents and yet another company viz., Wipro Ltd. to the 1st respondent, in response to the NIT and RFP dated 27.05.2017. The bid opening summary dated 20.09.2017 issued by the 1st respondent is produced as Ext.P4. After the bid opening, the technical bids submitted by all the bidders were made available online by the 1st respondent. According to the petitioner, petitioner examined the technical bids submitted by its competitors, including the 4th and 5th respondents. While the petitioner and the Wipro Ltd. proposed to use the products manufactured by Juniper Networks in its proposal, the 4th and 5th respondents used products from Cisco Systems. On an examination of the 4th respondent's technical bid, petitioner noticed several discrepancies in the technical bid vis-a-vis the technical specifications mentioned in the RFP, which are as follows:
'(i) One of the conditions of clause 2.3, Bidder Eligibility Criteria, is that bidder firm should be ISO 27001 certified or should have successfully completed one large networking project having ISO 27001 certification, during last 7 years ending on 31st March, 2017. However, the document submitted by the 4th Respondent does not have such certifications, rendering it ineligible to participate in the tender.
(ii) In terms of the Sr.No.106 of the pre-bid clarifications and amendments, the bidder can quote only one make or model and further that all network activities offered by the bidder except UTM shall be from a single Original Equipment Manufacturer (OEM). However, the technical bid submitted by the 4th Respondent only specifies 'Cisco or equivalent from other OEM'. In the absence of detailed specifications/technical bids, the evaluation of offers on an equitable basis and in a transparent manner would not be possible and would be prone to subjectivity. Moreover, the 4th Respondent did not provide any product details as part of the technical bid in respect of certain products, e.g., Specification # 220.127.116.11 in respect of air conditioner, Specification # 5.2.5 in respect of passive cables, infrastructure related components etc.
(iii) A discrepancy was also noticed in respect of Specification # 18.104.22.168 DHQ L3 POP which stated that the switch should have minimum 94Mbps forwarding rate for line rate performance at 64 byte packet size for a fully populated switch. A corrigendum was later released on this specification that allowed vendors to assume stacking bandwidth for forwarding rate calculation. However, the product quoted by the 4th and 5th Respondents, Cisco Catalyst 3850, does not meet the said specification and has only 68.4 Mps forwarding rate. This clearly shows the 4th and 5th Respondents' non-compliance with the published tender specification.'
8. According to the petitioner, the most significant discrepancy/violation however, was, noticed in respect of the technical bids for the switches. Specification # 22.214.171.124 - BHQ Switch states that the Switch should be an Enterprise Class Switch with minimum 24 x 10/100/1000 Base-T ports and 2 x 1G SFP ports. Switches form an extremely important part of the network and connects devices together. The bids from 4th and 5th respondents have quoted for a device named SG350X from vendor Cisco Systems. This device, according to the website of Cisco Systems, is a device that is part of the Cisco Small Business Family. It is the contention of the petitioner that, according to the market research firm IDC, the definition of a Small and Medium Business is an organization with an employee strength of 100 to 999 employees. An organization that caters to users greater than 1000 is called an Enterprise. Enterprise customers require a higher level of support from vendors to ensure smooth operation of the network. Enterprise customers also tend to use technology with more complex environments that require additional features to be incorporated on the devices. Small and medium customers do not necessarily require this level of support or features and hence are not expected to pay for these features.
9. Thus, according to the petitioner, there is a vast distinction in the delivery performance and security of Enterprise switches and SMB switches. KSWAN, without any doubt, is an Enterprise customer and requires the technology and vendor support that comes with it. It was for this reason that the 3rd respondent Consultant had mentioned the requirement for an Enterprise Class Switch in the RFP specifications. However, the 4th and 5th respondents wilfully and with an objective to gain undue commercial advantage, quoted switches for the Small Business Switches. A copy of the relevant specifications of the devices and components submitted by the 4th and 5th respondents are produced as Exts.P5 and P6.
10. Therefore, according to the petitioner, the technical bid submitted by 4th and 5th respondents and the use of certain Cisco products did not meet the Technical Specifications mentioned in the RFP. Matters being so, petitioner sent Exts.P7 and P8 representations dated 10.10.2017 and 30.10.2017 to the 2nd respondent, highlighting the non-compliance/deviations made by 4th and 5th respondents with regard to some of the requirements and requesting to take action. Petitioner has also requested the 2nd respondent to ensure the sanctity of the tender process and disqualify the bidders using Cisco products which did not meet the technical specifications stated in the RFP. It is also stated that, the 1st and 2nd respondents ignored the representations submitted by the petitioner by not responding to the same. Other contentions are also raised with respect to noncompliance of the conditions stipulated in the RFP by 4th and 5th respondents, and therefore, their ineligibility to participate in the RFP. It is also stated that, the circular issued dated 29.04.2014 by the Central Vigilance Commission viz., Ext.P9, stipulates that, acceptance/rejection of any bid should not be arbitrary, but based on justified grounds as per the laid down specifications, evaluation/exclusion criteria leaving no room for complaints.
11. Thus, once the tender conditions have been specified in the RFP, the 1st and 2nd respondents cannot alter or relax the conditions stipulated therein for the convenience of one of the bidders. Therefore, it is submitted that, the bid submitted by 4th and 5th respondents would necessarily have to be disqualified for not meeting the technical specifications. However, on 01.11.2017, the Technical Evaluation Committee for the tender declared the 4th and 5th respondents eligible and technically qualified to participate in the tender, and therefore, according to the petitioner:(a) the technical specifications were relaxed only for the 4th and 5th respondents; or (b) both the 4th and 5th respondents were allowed to modify their technical bid completely, evident from Ext.P10 technical evaluation summary issued by the 2nd respondent dated 01.11.2017.
12. Matters being so, the financial bids were opened and while the petitioner quoted Rs.34,15,09,383.77, the 4th respondent had quoted an amount of Rs.22,94,62,244.00. It is also stated that the 3rd respondent Consultant appointed by the 1st respondent for the RFP raised serious concerns about the 4th respondent's ability to undertake all the works specified in the RFP at such quoted amount. The BOQ summary details/financial bids declared by the 1st respondent is produced as Ext.P11. Other contentions with respect to the experience of the petitioner and the extremely low bid submitted by the 4th respondent, are also raised.
13. The sum and substance of the contention put forth by the petitioner is that, the 4th respondent was illegally and unlawfully allowed to modify its technical bid after the last date of submission, and the grant of tender to the 4th respondent, in such circumstances, would be against public interest and is in clear violation of Ext.P9 CVC guidelines. Therefore, petitioner seeks the relief of interfering with the tender process by invoking the writ jurisdiction.
14. Respondents 1 and 2 have filed a statement, an additional statement and a detailed counter affidavit, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, there is no deviation from the tender process as is alleged by the petitioner. Regarding the allegation with regard to the specifications of the products, clarifications were sought for by the respondents from the 4th respondent. Thereafter, the details of the proposed products were submitted by the 4th respondent. As per its clarification, 4th respondent proposed to use Voltas Air Conditioners and Norden for passive cables. The 3rd respondent approved the technical compliance of the products which were proposed to be used by the 4th respondent in this regard. The technical bid submitted by the 4th respondent only specified CISCO or other equivalent from other Original Equipment Manufacturers (OEM), and they have not specified any details regarding the evaluation of offers on an equitable basis and transparent manner, was also evaluated. It is evident that the 4th respondent although has mentioned CISCO or other equivalent from other OEM, the make and model quoted were from the CISCO products. They also produced technical compliance sheet quoted with reference documents from CISCO and attached the Manufacturer Authorization Form (MAF) from CISCO. It clearly shows that, the products quoted are from a single OEM. The technical authority after verifying the annexed documents specified that the products quoted by the 4th respondent were from a single OEM.
15. So also, it is submitted that, the 4th respondent as per the clarification sought by the 1st respondent, in accordance with clause 2.11.1(c), submitted the documents showing their eligibility criteria of having successfully completed one large networking project having ISO 27001 certification during the last seven years ending on 31.03.2017, evident from Exts.R1(a) to R1(c), respectively. According to respondents 1 and 2, the allegation raised by the petitioner to the contrary is baseless and hence denied.
16. It is also submitted that the 3rd respondent is the technical consultant appointed by the 1st respondent for evaluation of the technical bids during the tender process, and has submitted Ext.R1(d) technical evaluation report. The said report was presented by the 3rd respondent in the technical committee of the 1st respondent, and Ext.R1(e) minutes was drawn by the technical committee of the 1st respondent.
17. It is also stated that, the allegation raised by the petitioner with respect to DHQ L3 POP switches to the effect that switch should have minimum 94 Mpps forwarding rate for line rate performance at 64 byte packet size for a fully populated switch, is not in accordance with technical specifications as per the tender condition, is not true or correct. The respondent has released Ext.R1(f) corrigendum dated 12.07.2017 with respect to the DHQ L3 POP switch that allowed stacking bandwidth for forwarding rate calculations. This would imply that, even though there was no documentation of packet forwarding rate of the stacking port as seen from the data sheet of the products, a clarification was sought from the bidders to submit their documentation to prove that the packet forwarding rate includes stacking as 94 Mpps. Accordingly, necessary enquiries were made and in accordance with Ext.R1(g) data sheet of the proposed products of the 4th respondent, it is having a stacking bandwidth of 480 Gbps as per the data sheet provided. As per Ext.R1(g), the bidders clarified that, stacking bandwidth of 480 Gbps will provide 357 Mpps for 64 byte packet size which will meet the requirements specified in the RFP. The clarifications also made it clear that the products offered were having forwarding rate including stacking which is much more than the required specifications as per the RFP/corrigendum.
18. The issue with respect to the switches offered by the 4th and 5th respondents, as alleged by the petitioner that it does not meet the standard requirements as per the RFP was taken into account with reference to the specifications contained under clause 126.96.36.199. The RFP states that the BHQ W.P.(C) No.35658 of 2017 14 switch should be an enterprise class switch with minimum 24 x 10/100/1000 Base-T ports and 2 x 1 G SFP ports. According to the petitioner, a small and medium business organization could be having an employee strength of 100-999 employees, and those organizations that caters to users greater than 1000 is called an enterprise, and that the enterprise customers require a higher level of support from the vendor to ensure smooth operations of the network and they tend to use technology with more complex environment requiring additional features to be incorporated on the devices.
19. It is submitted by respondents 1 and 2 that the respondents 4 and 5 quoted CISCO SG 350-28-K9-NA switches. The technical committee of the 1st respondent as per the decision dated 19.10.2017 sought clarification from the 4th and 5th respondents as to whether the BHQ POP switches proposed by them is an enterprise class or not, and the 4th and 5th respondents have submitted their clarification, evident from Ext.R1(h). Thereafter, the technical committee of the 1st respondent met on 24.10.2017 reviewed the clarifications submitted by the 4th and 5th respondents and satisfactorily concluded that the BHQ POP Switch quoted by the 4th and 5th respondents fully meets the technical features specified in the RFP, even though the products are listed in the small business category in the CISCO website.
20. It is also submitted that, the categorization in respect of classification of network switches are normally done by the respective OEMs, and the term 'enterprise class' is not a standardized classification in the industry. In the meanwhile, the technical committee held on 24.10.2017 observed that, though the proposed device fully complies with and qualifies the technical specification as per the RFP, the mentioned product was seen to be listed in the small business category from the OEM website. Therefore, the Technical Committee recommended that as per the approval of 1st respondent, the 4th and 5th respondents may be allowed to offer a higher product from the same OEM in the enterprise category complying with all other technical specifications in the RFP without change in financials. It was made to ensure the compliance with the term 'enterprise class' as mentioned in the RFP. Subsequently, the 4th and 5th respondents submitted an undertaking to offer a higher product, Catalyst 2960 series switches, which are listed under enterprise category in the CISCO website for the BHQ POP switch without any change in the financials which meets all the technical compliance as per RFP, even though the initial products fully complied with all specifications as per RFP.
21. It is further submitted that, there were several shortfalls in the documents submitted by the bidders including the petitioner, and therefore, clarifications were sought from all the bidders including the petitioner through e-mail. The petitioner had also submitted their responses regarding the shortfalls. It is also stated that, the representation submitted by the petitioner, viz., Exts.P7 and P8 were discussed and evaluated by the Technical Consultant, and also in the technical committee meeting held on 19.10.2017 and 24.10.2017.
22. That apart, it is stated that, the respondents have not altered or relaxed the conditions stipulated in the RFP for the convenience of one of the bidders. The clarifications received were satisfactory to the technical consultant and the technical committee of the 1st respondent, and it met the criteria/specifications fixed by the 1st respondent in the RFP. To assure the compliance with the term of enterprise class as specified in the RFP for BHQ POP switch, the product under the same category listed in the enterprise class was recommended by the technical committee with the approval of the 1st respondent. Therefore, according to respondents 1 and 2, there is no deviation or alteration of the contract made by the 4th and 5th respondents, and the contentions otherwise made in the writ petition are baseless.
23. The 5th respondent has also filed a detailed counter affidavit contending that the offers made by it were also in accordance with RFP and it has also met with all technical specifications in accordance with the stipulations contained there under.
24. A reply affidavit is filed by the petitioner reiterating the stand adopted in the writ petition. The predominant contention raised in the writ petition as well as in the reply affidavit is that, the 4th and 5th respondents were allowed to deviate from the bids submitted by them, in violation of the stipulations contained there under in Ext.P2 RFP, specifically in respect of the specification of the switches.
25. I have heard learned counsel for the petitioner, learned Government Pleader and the learned counsel appearing for the 5th respondent. Even though notice is served on the 4th respondent, there is no appearance. I have also perused the pleadings and the documents on record in extenso.
26. The respective counsels have advanced arguments in accordance with the pleadings made and discussed above. The subject matter relates to invitation to bid for Operations and Management of Kerala State Wide Area Network (KSWAN) for a period of three years from the date of taking over, including revamping of infrastructure. As per Ext.P2, Request for Proposal (RFP), the bidders were advised to study the tender document carefully, and if required, to conduct site visits with proper intimation to Kerala IT Mission to ascertain the work involved. The submission of bids shall be deemed to have been done after careful study and examination of the tender document with full understanding of its implications.
27. The main contention advanced by learned counsel for the petitioner is harping on clause 2.9 of Ext.P2 RFP, which read thus:
'2.9 Modification and Withdrawal of Bids.
i) The Bidder is allowed to modify or withdraw his submitted bid any time prior to the last date & time prescribed for submission/receipt of bids.
ii) Subsequent to the last date for receipt of bids, no modification and withdrawal of bids is allowed till bid validity period. Any such requests will result in the forfeiture of its EMD from the Bidder.'
The bid validity period is defined under clause 2.6, to mean that, all bids shall be valid for a period of 180 days from the date of opening of the technical bid, during which period bidder will not be free to withdraw the submitted bid. Any such withdrawal will entail forfeiture of the earnest money deposited against the tender.
28. Relying upon clause 2.9, the contention advanced by learned counsel for the petitioner is that, the 4th respondent who is the lowest bidder was allowed to modify the tender by incorporating enterprise class switches, and therefore, the tender submitted by the 4th respondent is in violation of the qualification criteria prescribed under Ext.P2. It is also contended that, the permission granted by respondents 1 and 2 to modify the bid is absolutely in violation of the stipulations contained under Ext.P2. Learned counsel has also relied on clause 2.11.1, which deals with Opening and Evaluation of PreW. qualification cum Technical Bids, which read thus:
'a) Bid opening shall be done as per the date mentioned in critical dates section 1.3 of the online tender document. Interested bidders can be present at the venue for technical bid opening as mentioned in the tender document.
b) The evaluation of those bids whose payment status is shown as success in the e-Procurement system, will be opened and evaluated.
c) To assist evaluation and comparison of bids the department, at its discretion, may seek clarifications from bidder. However, no post bid clarification/confirmation of compliance at the initiative of the bidder shall be entertained.
d) KSITM or duly appointed committee shall examine ll the bid(s) to determine whether the Bidder qualifies the essential eligibility and pre-qualification criteria, i.e. EMD & Tender fee payments and bidder eligibility criteria. All the supporting documents submitted online will be examined to determine whether they are complying with the eligibility criteria of Technical Bid. Bids of only qualified Bidders will be taken up for further evaluation.
e) Bidder who does not qualify this stage shall be summarily rejected and no correspondence shall be entertained.
f) During the evaluation of the technical bids, compliance of the bidder solution with necessary documentary evidence will be checked upon. Evaluation criteria will include fulfilment of all specifications mentioned in the bid. A compliance sheet submitted as per attachment 8.1 of technical bid shall also be verified. Corresponding to each technical specification in the compliance statement, relevant serial numbers/page numbers/line numbers etc. in the data sheet/published documentation shall be provided for verification. Any deviation from the tender specifications, terms and conditions, delivery schedule, project completion time etc. shall be clearly mentioned with the proposed alternatives which comply with the project requirements. KSITM reserves all the rights to accept or reject the proposed alternatives without assigning any reason whatsoever thereof. Noncompliance of any of the technical specifications/requirements may lead to rejection of the bid. Partial compliance shall be treated as Noncompliance.
g) The bidder shall upload all required information in the technical bid as per the formats given in section VIII of this document.
h) The bidders shall make a technical presentation before KSITM or a technical committee constituted for the evaluation of the bids.
i) Any falsification, suppression of facts would lead to rejection of the bid along with the forfeiture of the EMD.
j) Only technically successful bids, who satisfies above mentioned conditions will be considered for Commercial/financial Bid opening.'
29. Learned counsel has specifically relied on sub-clause (c) of clause 2.11.1, which states that to assist evaluation and comparison of bids, the department, at its discretion, may seek clarifications from the bidder. However, no post bid clarification/confirmation of compliance at the initiative of the bidder shall be entertained. The contention advanced by the petitioner, based on the said clause, is that, the 1st and 2nd respondents have permitted the bidder to modify the bid after the last date prescribed as per Ext.P2. It is also pointed out by learned counsel that, Ext.R1(d) Technical Evaluation Report of the Technical Committee would clearly show that the switches offered by the 4th respondent is categorised as small business class of the make SG350-28-K9-NA, which was allowed to be modified with a higher product from the very same Original Equipment Manufacturer in the enterprise category, complying with all other technical specifications in Ext.P2 without change in the financials.
30. So also, learned counsel has invited my attention to Ext.R1(h) communication issued by the 4th respondent to the 1st respondent. However, on a reading of Ext.R1(h), it is evident that, the said reply was given by the 4th respondent pursuant to a query issued by the 1st respondent in respect of the details of the manufacturer so far as the switches offered by the 4th respondent was concerned. The 4th respondent has clarified in Ext.R1(h) that the proposed switch SG350-28-K9- NA is developed and manufactured with enterprise class quality and standards and that the same model/series of switches are being used by enterprise customers world-wide. The other details with respect to support extended by the switch as an enterprise class and features of the same are described in Ext.R1(h).
31. It is also stated that, the proposed switch complies 100% to the features, functionalities, quality standards and certification specified in Ext.P2 RFP. So also, petitioner has submitted Exts.P7 and P8 representations before the 1st respondent, consequent to the uploading of the technical bid details on opening of the same. As per Ext.P2, after opening of the technical bid, the bidders are to provide a technical presentation before the 1st respondent or a technical committee constituted for the evaluation of bids. This is clearly evident from sub-clause (h) of clause 2.11.1. Further, sub-clause (f) of clause 2.11.1 makes it clear that during the evaluation of technical bids, compliance of the bidder solution with necessary documentary evidence will be checked upon. Evaluation criteria will include fulfilment of all specifications mentioned in the bid. A compliance sheet submitted as per attachment 8.1 of Technical bid shall also be verified. Corresponding to each technical specification in the compliance statement, relevant serial numbers/page numbers/line numbers etc. in the data sheet/published documentation shall be provided for verification. Any deviation from the tender specifications, terms and conditions, delivery schedule, project completion time etc. etc. shall be clearly mentioned with the proposed alternatives which comply with the project requirements, and the 1st respondent reserves all the rights to accept or reject the proposed alternatives without assigning any reason whatsoever thereof. Therefore, a modality is prescribed to evaluate the Pre-Qualification cum Technical Bid as is contained under clause 2.11.1.
32. Ext.R1(d) report of the Technical Evaluation Committee shows that evaluation was done by the Technical Committee thoroughly after inviting all the bidders to the evaluation meeting. It is also stated in the report that, there were shortcomings on the part of all the bidders in submitting the bids, which were permitted to be corrected by the Technical Evaluation Committee. Therefore, it can be seen that, none of the bidders including the petitioner did not modify the bid by their own volition. But clarifications were made by all the bidders on the basis of the suggestions made by the Technical Committee or the 3rd respondent.
33. Now, turning back to sub-clause (c) of clause 2.11.1 would be worthwhile. The second limb of the said clause clearly states that 'However, no post bid clarification/confirmation of compliance at the 'initiative of the bidder' shall be entertained'. The said sub-clause will have to be read together with sub-clauses (f), (g) and (h) of clause 2.11.1, which will convincingly show that whatever prohibition created under clause 2.9 with respect to modification and withdrawal of bids, is in respect of the voluntary exercise undertaken by the bidders. However, such prohibition will not disable respondents 1 and 2 from making respective suggestions during evaluation of Pre-qualification bids. Moreover, Exts.P7 and P8 representations submitted by the petitioner show that the petitioner itself requested the 1st respondent to demand official published documents from CISCO and these bidders or links to the website clearly stating that Catalyst 3850 supports 94 Mpps or more of switching capacity in order to ensure compliance with the specifications stated in the tender documents.
34. It is clear from the counter affidavit filed by respondents 1 and 2 that, it was also taking into account the apprehensions raised by the petitioner, query was raised by respondents 1 to 3 to the 4th respondent to make clarifications with respect to the switches offered by the 4th respondent. This also makes it amply clear that, action was taken by respondents 1 to 3 seeking clarification from the 4th respondent was based on clear factual foundation, and there was no 'initiative' undertaken by the 4th respondent to modify the technical bid submitted by the 4th respondent. Moreover, it is evident from Ext.R1(d) report of the Technical Committee, as well as the pleadings offered in the counter affidavit that the respondents 1 to 3 sought assurance from the 4th respondent in respect of compliance with the term of 'enterprise class' of the switches as specified in RFP for BHQ POP Switch, and the product under the same category listed for the enterprise class was recommended by the Technical Committee with the approval of the 1st respondent.
35. It is also clear that, though the initial product offered for the BHQ POP switch [CISCO SG350] met all the technical specifications required in Ext.P2 RFP, higher grade listed under enterprise class was offered by the 4th and 5th respondents without any change in the financials offered by them. Moreover, clause 4.4 of the Technical Evaluation Report clearly shows that the Technical Committee recommended that as per approval of KSITM, the bidder may be allowed to offer a higher product from the same OEM in the 'enterprise category' complying with all other technical specifications in the RFP, without change in the financials.
36. This is also a clear indicative factor to arrive at a conclusion that there was no initiative on the part of the 4th respondent to modify the technical bid. As I have pointed out earlier, the modification of the bid at the initiative of the bidder alone was prohibited, and the 1st respondent or the Technical Evaluation Committee constituted for the purpose of evaluating the technical bid had all the powers to make necessary suggestions to the bidders while evaluating the bid. It is also clear from the statement, additional statement and the counter affidavit submitted by respondents 1 and 2 that, all the bidders while submitting their technical bid had made mistakes and they were given opportunity to incorporate requisite details into the technical bid.
37. The last date for acceptance of the bid was 18.08.2017 - 6 p.m. through online, and the technical bids were opened on 23.08.2017. Thereafter, the presentation was done by 4th and 5th respondents on 19.10.2017 and on being fully convinced as regards their performance, the products proposed by the 4th respondent and the 5th respondents were accepted. The clarifications made by 4th and 5th respondents were reviewed by the 3rd respondent and recommendations referred to Technical Committee on 24.10.2017. Thereafter, only the final bid was opened on 01.11.2017.
38. In my considered opinion, as alleged by the petitioner, there is no violation of the stipulations contained under clause 2.11.1 for the reasons specified above. A tender proceeding under challenge in a writ petition, the Court need to look into whether there is malafides, arbitrariness, patent illegality or unfairness on the part of the respondents in accepting and evaluating the bid. It is clearly evident from the facts and circumstances put forth by the respective parties, and compared and appreciated with the documents produced, that there is no arbitrariness or
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illegality or unfairness or other legal infirmities on the part of the respondents in accepting the technical bid of 4th and 5th respondents. 39. Moreover, the 4th respondent is a Government of India undertaking. No manner of malafides are attributed by the petitioner against acceptance of the technical bid of the 4th and 5th respondents. The sole allegation is in respect of modification of the bid made by 4th and 5th respondents. From the fact discussion, taking into account the legal circumstances available from Ext.P2, it is clear that, there was no voluntary action from the side of 4th and 5th respondents in the matter of modification of the bids, prohibited as per the provisions of clause 2.11.1. Moreover, from Ext.R1(d) report of the Technical Committee, it is evident that, the switches offered by the 4th and 5th respondents were of enterprise class and only on the recommendation made by the Technical Committee, as per the approval of the 1st respondent, the bidder was allowed to offer a higher product from the same OEM in the enterprise category complying with all other technical specifications in the RFP without any change in the financials, which is perfectly in order. 40. Admittedly, on opening the commercial bid, it is evident that the bid submitted by 4th respondent is the lowest, since the amount quoted by the petitioner is Rs.34,15,09,383.77, while that of the 4th respondent is Rs.22,94,62,244.00, thus making a difference of Rs.11,20,47,139/-. In accordance with the stipulations contained under Ext.P2, subject to compliance of the technical specifications, the lowest bid is to be accepted by respondents 1 and 2. 41. So also, the summary of fact discussions made above would make it clear that, the case put forth by the petitioner is based on various factual circumstances in respect of technical qualification of the 4th respondent allegedly based on the stipulations contained under Ext.P2 and other consequential documents, which are stoutly opposed by respondents 1 and 2 in its counter affidavit as well as the statement and additional statements. Therefore, it can be seen that, the contentions advanced by the petitioner are not reconciling with the facts and pleadings put forth by respondents 1 and 2, making the issues raised by the petitioner factually conflicting, and complex, and the repelling intrinsic contentions advanced by the parties disables this Court to decipher the issue without adjudicating the factual circumstances by adduction of oral evidence. Moreover, the dispute by and between the parties is a commercial transaction and unless and until proved malafides, arbitrariness, illegality or other legal infirmities justifying interference of this court in the writ petition are established by the petitioner, petitioner is not entitled to succeed in the writ petition. 42. Taking into account the aforesaid aspects also, it can be seen that the petitioner is not entitled to secure any relief invoking the power of judicial review under Article 226 of the Constitution of India. While holding so, I bear in mind the legal principles laid down by the apex court in 'Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation and others' [(2000) 5 SCC 287], 'Bakshi Security and Personnel Services Private Ltd. v. Devkishan Computed Private Ltd. and others' [(2016) 8 SCC 446] and the judgment in 'Reliance Telecom Limited and another v. Union of India and another' [(2017) 4 SCC 269], pointed out by the petitioner as well as the learned Government Pleader. 43. Having evaluated the factual and legal situations discussed above, I am of the considered opinion that, petitioner has not made out any case justifying interference of this Court exercising the power of judicial review. W.P.(C) No.35658 of 2017 32 Resultantly, writ petition fails, accordingly, it is dismissed.