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Moon Tours & Travels & Another v/s State of Uttarakahnd & Others

    Writ Petition (M/S) No. 1098 of 2015

    Decided On, 06 July 2015

    At, High Court of Uttarakhand

    By, THE HONOURABLE MR. JUSTICE SUDHANSHU DHULIA

    For the Petitioners: Dharmendra Barthwal, Advocate. For the Respondents: R.P. Sharma, Learned Brief Holder, R2 & R3, D.S. Patni, Advocate.



Judgment Text

Sudhanshu Dhulia, J. (Oral):

1. This petition has been filed by the petitioners challenging the cancellation of technical bid which petitioners had offered pursuant to the advertisement issued by the Nagar Palika Parishad, Nainital for Zoo Shuttle Services for ferrying the passengers from two pre-determined points from Mall Road, Nainital to the Zoo i.e. the destination.

2. The advertisement to this effect was published by Nagar Palika Parishad, Nainital in one daily newspaper namely, Amar Ujala, on 03.05.2015. As per the terms of the advertisement, it was a two-bid process;

a. Technical bid,

b. Financial bid.

3. Further it has been stated that as a bid security or as an earnest money, as it is called, the applicants were to deposit an amount of Rs.50,000/- in the form of FDR alongwith 'bid documents'. It was further directed that the applicants shall submit both the bids i.e. Technical and Financial both, in separate envelopes, clearly superscripted over the said envelope and thereafter, to keep both the said envelopes in a single bigger envelope. However, it is not clear that the earnest money, in the form of FDR, was required to be kept in which envelope viz. (a) for the technical bid, or (b) envelope meant for financial bid.

4. Considering the fact that matter involves financial implications, it was clearly mentioned in the advertisement that the earnest money has to be put alongwith the bid document.

5. According to learned counsel for the respondents, the applicant making application was required to deposit the earnest money for tender in the shape of FDR worth Rs.50,000/- in the name of Executive Officer, Nagar Palika Parishad, Nainital and it was required to kept it in the envelope of Financial Bid, which he did.

6. Learned counsel for the petitioners submits that there were three participants in the said tender process, including the present petitioner. The candidature of the other two namely Sri Mohd. Arif and Sri Daya Krishan Pant were rejected as they had not furnished the required qualification/ experience certificate, documents, which are necessary for the said bid. The candidature of the present petitioner was, however, also rejected on the ground that he had kept the earnest money (in the form of FDR) in the envelope containing the Financial Bid, and not in the envelope of 'Technical Bid'. This is an admitted fact that the petitioner had given the earnest money, but it had placed in the envelope containing the Financial Bid.

7. The respondent no. 2, however, insists that placing the earnest money was a part of technical bid. It was done in accordance with the Uttarakhand Procurement Rules. Earnest money is defined under Section 20 the said Rules, which reads as under:-

'20. Bid Security or Earnest Money-

(1) To safeguard against a bidder’s withdrawing/ altering its bid during the bid validity period in the case of advertised or limited tender enquiry, bid security (also known as earnest money) is to be obtained from the bidders except those who are exempted under specific provisions of law or rules. Amount of bid security should ordinarily range between 2% to 5%. The given percentage will depend on the total cost of the goods as follows:-

(i) Upto Rs. 1 Lakh -5%,

(ii) Rs. 1 Lakh to 5 lakh -4%.

(iii) Rs. 5 Lakh to 25 Lakh -3% and,

(iv) Above Rs. 25 lakh -2% shall be charged.

(2) From time to time the Government may revise such rates. The bid money should be pledged in the name of Government/ authority in the form of demand draft or fixed deposit receipt or Bankers cheque or Bank guarantee or deposited in given heads of account through e-banking (if any) to the satisfaction of the competent authority safeguarding the interest of the purchaser in all respects. The bid security is normally to remain valid for a period of 45 days beyond the final bid validity period and the period may also be extended.

(3) Bid securities of the unsuccessful bidders should be returned to them at the earliest after expiry of the final bid validity but not later than 30 days after the award of the contract by the concerned department/ authority.'

8. The very language of the earnest money says that the earnest money is required so that the bidder may not be able to withdraw from the bid during its validity period, which may cause loss to the Department. In other words, it entails that such earnest money has to be given at the opening of the financial bid. Rule 15 of the Uttarakhand Procurement Rules, 2008, reads as under:-

'15. Bid System-

(1) Single Bid System-For procurement of items having no registered suppliers, single bid system may be opted up to purchase limit of Rs.5,00,000/- (Rs. Five lakh), in which specifications of items and financial bid may be quoted together on prescribed form issued by Competent Authority.

(2) Two Bid System-For procuring high value plant, equipment or machinery etc. of a complex and technical nature, bids may be invited in two parts:-

(a) Technical bid-- The technical bid consisting of all technical details, along with commercial terms and conditions, and

(b) Financial bid- The financial bid should Indicate item-wise price for the items mentioned in the technical bid.

The technical bid and the financial bid should be sealed by the bidder in separate covers/duly superscribed and both those sealed covers will put in a bigger cover which should also be sealed and duly superscribed. The technical bids are to be opened by Competent Committee/ Authority on specified date and time. The committee/authority shall evaluate and rank the technical bid based on already defined specifications/ parameters and prepare the list of technically qualified bidders. The financial bids of only those bidders should be opened who have qualified in the technical bid for further evaluation in ranking and the remaining financial bids (Envelopes) will not be opened and as such returned to the bidders.'

9. The only requirement was of submitting the 'earnest money' alongwith the bid documents. It was not specified that the earnest money had to be given alongwith the 'Technical Bid' document. Consequently, this bid of the petitioner has been wrongly rejected, as it cannot be held that it was non-responsive.

10. Therefore, the rejection of the petitioners’ candidature is totally unjustified. This Court has

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been informed that the petitioner is the only remaining candidate. Therefore, logically, in case, the petitioner is technically qualified, then he has to be given the bid. However, since he is the only surviving bidder, thus it is observed that if the Nagar Palika Parishad, Nainital feels that for any reason they can get higher amount, then the Nagar Palika Parishad, Nainital will be at liberty to re-advertise and call for the fresh tenders in which the petitioner would be at liberty to participate, but while doing so, they must compensate the petitioner for having wrongly rejected his candidature by paying an amount of Rs.15,000/- as compensation. 11. The writ petition stands disposed accordingly.
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