2017 (11) TMI 809 – GUJARAT HIGH COURT – 2018 (11) G. S. T. L. 275 (Guj.) – Disqualification of petitioner – petitioner's bid treated as nonresponsive and ineligible on the sole ground that while submitting the bid the petitioner no.1 has not paid Goods and Services Tax to the respondent with the Bid/ Document Fee – at the time of submitting bid the petitioners made the payment of ₹ 18000/towards bid / document fees, however without GST @18% as demanded as per the tender document / notice – It is the case on behalf of the petitioners that thereafter, in absence of any information about the GSTIN of the respondent Corporation, the petitioner no.1 has made the payment of GST by depositing the amount as per reverse charge mechanism on 3.10.2017 at around 12.00 p.m within the time prescribed for the said purpose under law.
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Held that: – At the outset, it is required to be noted that as such in the present case the petitioners are not considered to be tenderer at all by the resp
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osit of entire amount of document fee and EMD details was mandatory to be paid.
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It is an admitted position that as the petitioners did not deposit the entire bid document fee / bid processing fee at the time of submitting the bid / bid document and therefore, no such receipt in favour of petitioner has been generated like in the case of other two bidders who in fact paid the entire bid document fee / EMD and therefore, the petitioners are not considered at all tenderer / bidder and therefore, its bid has not been considered at the technical bid stage.
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The issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer.
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The decision of the respondent Corporation in not treating and / or considering the petitioners as tenderer / bidder and in holding the petitioners ineligible even prior to technical bid stage, cannot be said to be perverse and / or
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noted even at the cost of repetition that other two bidders did deposit the entire amount of ₹ 21,240/and thereby complied with the relevant terms and conditions / essential conditions.
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What is required to be considered as payment of entire amount of bid document fee / bid processing fee and the EMD at the relevant time and before the prescribed period mentioned in the tender document. As observed herein above, such a requirement was required to be complied with the entry stage itself. As observed herein above, unless and until, entire amount of bid document fee/ bid processing fee and the EMD is deposited the persons who submitted bid would not get entry at all and only after the aforesaid amount is deposited / paid and receipt is generated, the concerned party can be said to be tenderer / bidder whose bid is required to be considered at technical stage and thereafter on fulfillment of other terms and conditions, its price bid is required to be considered.
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Petition
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for an appropriate writ, direction and order to quash and set aside the impugned decision of the respondent Corporation to disqualify the petitioner no.1 treating its bid as nonresponsive and ineligible on the sole ground that while submitting the bid the petitioner no.1 has not paid Goods and Services Tax (hereinafter referred to as the GST ) to the respondent with the Bid/ Document Fee. 3.0. The facts leading to the present Special Civil Application in nutshell are as under: 3.1. That the respondent Corporation has issued a Request for Proposal (hereinafter referred to as RFP ) for Development of Integrated Group Housing Facility at Dumbhal Tenements of FP No. 18/A TPS No. 33 (Dumbhal) on PPP basis under Redevelopment of Public Housing Scheme2016 . As per the RFP, initially the online bid was to be submitted by 29.03.2017 and the physical bid was to be submitted by 07.04.2017. However, the aforesaid deadlines came to be extended upto 22.06.2017 for the online submission and 01.07.20
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e tender notice, time schedule was as under: Sr.No. Event of Description Date 1 Last date of receiving queries online only. 21.08.2017 up to 11.00 hrs. 2 Surat Municipal Corporation response to queries Response to queries will be uploaded online as corrigendum/amendment after pre bid meeting. 3 PreBid Meeting Pre Bid meeting will be held on 22.08.2017 @ 16.00 hrs. Place of Pre bid meeting: 88, Conference hall, 2nd Floor, SMC Office, Mugalisara, Surat, Gujarat, India. 4 Last date of online submission 07.09.2017 5 Opening of Bids If possible on 16.09.2017 at 16.00 hrs in the office of Executive Engineer, Solid Waste Management Dept., Surat Municipal Corporation, Surat (If Possible). 6 Validity of Bids 180 days from the date of opening of price bid. 7 Signing of Agreement Development Within 15 days of issue of LOI. It is submitted that pursuant to the Second RFP, the petitioner no.1 submitted its online bid on 07.09.2017 and the physical bid on 09.09.2017. It is the case on behalf of
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on, it came to be informed to the petitioner no.1 that the amount of GST @ 18% was paid along with bid / document fee. It is the case on behalf of the petitioners that in view thereof, despite having made a provision for the payment of GST on reverse charge basis as per law, the petitioner no.1 out of abundant caution, addressed a letter dated 19.09.2017 and submitted a Demand Draft No.052513 dated 19.09.2017 towards the said amount of GST as per the information provided by the respondent. At this stage, it is required to be noted that at the time of submitting bid the petitioners made the payment of ₹ 18000/towards bid / document fees, however without GST @18% as demanded as per the tender document / notice. It is the case on behalf of the petitioners that thereafter the petitioner no.1 in good faith, addressed another letter to the respondent on the very next day i.e. 20.09.2017, thereby undertaking to bear any penalty, if any, imposed for late deposit of the amount of GST. Tha
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on 3.10.2017 at around 12.00 p.m within the time prescribed for the said purpose under law. 3.4. It is the case on behalf of the petitioners that on 3.10.2017, ar around 9.30 a.m, the petitioner no.1 checked the status of the tender on online tender on online tender portal nProcure . According to the petitioners, at that time, the status showed that the technical bids of all the bidders were under evaluation. According to the petitioner, however, at around 1.00 p.m, the petitioner no.1 rechecked the status of the tender on nProcure and found that the petitioner no.1 had been disqualified. It is the case on behalf of the petitioners that as per the latest status of the tender process that out of the three bidders who participated in the tender process, two have been disqualified and thereby newly added respondent no.2 herein Siddhi Constructions only remained in fray. 3.5. Feeling aggrieved and dissatisfied with the impugned action of the respondent no.1Surat Municipal Corporation – bid
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ring the petitioner disqualified at technical stage on the sole ground of non deposit / payment of bid / document fee of ₹ 21,240/with GST @18% is absolutely illegal and most arbitrary. 5.1. It is further submitted by Shri Mihir Joshi, learned counsel for the petitioners that as such the petitioner no.1 in fact, download the tender document / notice successful and thereafter while submitting bid not only paid the EMD of ₹ 93,00,000/, the petitioner no,1 also deposited bid / document fee of ₹ 18000/. It is submitted that as such at the relevant time the petitioners did not deposit the bid / document fee of ₹ 18,000/with 18% GST as respondent Corporation had not provided any details pertaining to GST Registration / GSTIN. It is submitted that even otherwise as per the law with respect to GST, the payment of GST @18% on reverse charge basis was permissible which the petitioner no.1 did deposit on reverse charge basis before the relevant date of payment of GST under
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of bid / document fee or tender fees cannot be said to be a condition of the tender or the eligibility and therefore, bid cannot be held to be non responsive for non payment of tender fee (in full). It is submitted that in the present case as such full tender fees have been paid by the petitioner no.1 and then the bid is submitted. 5.3. It is further submitted by Shri Mihir Joshi, learned counsel for the petitioners that even otherwise assuming without admitting that payment of Bid / Document Fees or tender fees was a condition, non fulfillment of such conditions cannot be said to be a non fulfillment of essential conditions of the eligibility. It is submitted that requirement in the 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 to the main object to be achieved by the condition. It is submitted that in the first case the authority issuing the tender may be require
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bid / tender fee and that too non payment of GST @18% on the amount of bid / tender fee is not considered to be Non Responsive . 5.6. It is further submitted by Shri Mihir Joshi, learned counsel for the petitioners that even otherwise in the facts and circumstances of the case, more particularly, when immediately having come to know, the petitioners have initially sent the demand draft of GST @ 18% of ₹ 18000/( bid/ tender fee) and as respondent Corporation did not accept the same, thereafter deposited the said with the appropriate authority on reverse charge basis which the petitioners deposited with the appropriate authority within the time prescribed under the relevant provision of Central Goods and Service Tax, 2017. It is submitted that as such therefore, the petitioners can be said to have substantially complied with relevant terms and conditions of the eligibility criteria. 5.7. It is submitted that even such lapse if any of non deposit of GST @18% on the amount of ₹
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upreme Court as well as this Court and Delhi High Court, it is requested to allow the present petition, more particularly, now subsequently only respondent no.2 herein is held to be qualified and therefore, there shall not be any competition and therefore, the public interest will suffer. (1). G.J.Fernandez vs. State of Karnataka and Ors reported in (1990) 2 SCC 488. (para 11,14 and 15) (2). Poddar Steel Corporation vs. Ganesh Engineering Works and Ors reported (1991) 3 SCC 273. (para 6) (3). Rashmi Metaliks Limited and Another vs. Kolkata Metropolitan Development Authority and Ors reported in (2013) 10 SCC 95. (para 17 & 18) (4). Om Prakash Sharma vs. Ramesh Chand Prashar and Ors reported in (2016) 12 SCC 632. (Para 10 to 12) (5). Jal Mahal Resorts Private Limited vs. K.P. Sharma and Ors reported in (2014) 8 SCC 804. (para 108 to 116 and 138). (6). Bakshi Security And Personnel Services Private Limited vs. Devkishan Computed Private Limited and Ors reported in (2016) 8 SCC 446. (7
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ical bid stage. It is submitted that the decision to consider the petitioners ineligible at the technical bid stage is absolutely in consonance with the relevant terms and conditions of the tender notice which is neither arbitrary nor mala fide. 6.2. It is vehemently submitted by Shri Desai, learned counsel for the respondent Corporation that merely because the petitioners could download the E Tender bid documents, the petitioners as such does not acquire any right in its favour to consider its bid which was submitted electronically, unless and until the petitioners comply with all other terms and conditions of the tender document / notice including that of deposit of bid document / bid processing fee. 6.3. It is vehemently submitted by Shri Desai, learned counsel for the respondent Corporation that as the entire process of inviting tender was through E Tender, if any party, who opens website of the respondent Corporation for the purpose of downloading E Tender Bid Document, then at th
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ugh RPAD or Speed Post so as to reach the Accounts Department within 7 days from the last date of submission of price bid. It is submitted that everybody was informed about the amount to be paid towards bid Document Fee / Bid Processing Fee i.e. ₹ 21240/. It is submitted that as the entire process of invited tender through E Tender anybody could download E Tender Bid document, however for the purpose of considering such party as bidder, such party is required to deposit bid / document fee (entire) and also bid security. It is submitted that only when the entire amount of bid document fee / bid processing fee and the EMD is deposited within the stipulated time as provided under the tender document, the receipt is generated in the record of the Corporation and on generation of the receipt, such party who had complied with all the terms and conditions at the initial stage namely deposit of entire amount of bid document fee and the EMD is considered to be the bidder / tenderer and on
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ted that nobody remained present on behalf of the petitioners in the pre bid meeting and therefore, no query was raised even with respect to the GST and / or GSTIN number. It is submitted that therefore, the submission on behalf of the petitioners that at the relevant time the petitioners did not deposit the GST amount (Rs.18000 + GST @18%) due to non availability of GST number and / or GSTIN is nothing but an afterthought. It is submitted that every other bidders in fact initially deposited the entire amount of ₹ 21,240/towards bid document fee / bid process fees with the Corporation and within the time prescribed as per the tender document. It is submitted that even thereafter as GST rate was changed and it was reduced to 12% the difference between 18% and 12% was refunded and returned to the concerned bidder. It is submitted that therefore, when all other bidders could deposit and/or deposited the entire amount of bid document fee / bid document processing fee of ₹ 21240
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considered the petitioner as tenderer itself. It is submitted that any amount / differential amount deposited subsequently and after the relevant date as prescribed in the tender document, such payment cannot be considered to be a valid payment and / or such payment is not required to be considered at all, more particularly, in the present case the differential amount was deposited after technical bid was opened on 18.09.2017. 6.6. It is vehemently submitted by Shri Desai, learned counsel for the respondent Corporation that as such on 19.09.2017 itself the draft of differential amount was sent back / returned to the petitioners. It is submitted that the technical bid was opened on 18.09.2017 and the prebid was opened on 03.10.2017 and after the price bid was opened, the petitioners have preferred present petition on 3.10.2017. It is submitted that the petitioners did nothing, more particularly, did not approach this Court immediately after 18/19. 09.2017. 6.7. It is further submitted
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er. It is submitted that non fulfillment of essential condition would render the concerned party ineligible and / or its bid is not required to be considered at all. In support of his above submission, Shri Desai, learned counsel for the respondent Corporation has relied upon the decision of the Hon'ble Supreme Court in the case of Rashmi Metaliks Limited and Another vs. Kolkata Metropolitan Development Authority and Ors reported in (2013) 10 SCC 95 as well as in the case of Aksh Security And Personnel Services Private Limited vs. Devkishan Computed Private Limited and Ors reported in (2016) 8 SCC 446 as well as in the case of Central Coalfields Limited and Another vs. SLLSML (Joint Venture Consortium) And Ors reported in (2016) 8 SCC 622. Learned counsel for the respondent Corporation has also relied upon the unreported decision of the Division Bench of this Court in the case of P. Kavitha vs. State of Gujarat and Ors rendered in Special Civil Application No.4731 of 2017. 6.9. It
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818 and in the case of Tamil Nadu Generation And Distribution Corporation Limited (Tangedco) Represented by its Chairman and Managing Director and Another vs. CSEPDITRISHE Consortium Represented by its Managing Director and Another reported in (2017) 4 SCC 318. Making above submissions and relying upon the above decisions, it is requested to dismiss the present petition. 7.0. Shri Mihir Thakore, learned counsel for the newly added respondent no.2 has submitted that to avoid any repetition, he adopts the submissions made on behalf of the respondent Corporation. It is submitted that as in the present case, there is non compliance at the entry stage itself and therefore, the decision of the Corporation not to consider the petitioners as tenderer / bidder itself and consequently not opening the price bid of the petitioners is absolutely just and in consonance with the terms and conditions of the tender. Therefore, relying upon the decision of the Hon'ble Supreme Court in the case of Ce
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he outset, it is required to be noted that as such in the present case the petitioners are not considered to be tenderer at all by the respondent Corporation on non deposit of entire amount of bid document fee, which as such was required to be paid as per the terms and conditions of the tender document and nProcure document. It is required to be noted that as per nProcure document the party who submit its bid online was required to deposit / pay within the stipulated time the bid document fee/ bid processing fee of ₹ 21240/which includes GST at 18%. It is an admitted position that when the petitioners submitted its bid online and thereafter in physical format the petitioners did not pay the entire amount of bid document fee/ bid processing fee of ₹ 21240/and deposited only part of the bid document fee / bid processing fee i.e. ₹ 18000/only. At this stage, it is required to be noted that other two tenderers who submitted their bid, paid / deposited the entire document
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r fee electronically and for the purpose of realization of EMD and tender fee, bidder was required to send EMD and tender fee in the required format in original through RPAD / Speed Post so as to reach the Accounts Department within 7 days from the last date of submission of price bid. It is required to be noted that as entire process inviting tender was through E Tender, downloading was free and if any party who open website of the respondent Corporation is allowed to download the entire tender document. However, thereafter for the purpose of considering such party as bidder / tenderer and its bid is opened and considered, such party is required to fulfill all the terms and conditions of the tender bid document. As per the procedure, after the tender documents are downloaded which as such was free of charge and thereafter the concerned parties who submits the bid, fulfills all the terms and conditions of the nProcure tender consolidated details including the deposit of entire bid docu
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e either arbitrary and / or mala fide and / or contrary to the terms and conditions of the tender document, more particularly, the terms and conditions mentioned in the nprocure tender consolidated details. In light of the above facts and circumstance of the case, few decisions of the Hon'ble Supreme Court on the nature and scope of judicial review of the Constitutional Court / High Court in exercise of powers under Article 226 of the Constitution are required to be referred to. 9.1. In the case of Michigan Rubber (India) Limited (supra) after considering the various other decisions of the Hon'ble Supreme Court on the point, more particularly, after considering the decisions of the Hon'ble Supreme Court in the case of Jagdish Mandal (supra) and Tejas Constructions and Infrastructure (P) Ltd (supra), in para 23 and 24, the Hon'ble Supreme Court has observed and held as under: 23. From the above decisions, the following principles emerge: (a) the basic requirement of Arti
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e State authorities unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, interference by Courts is not warranted; (d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by Court is very restrictive since no person can claim fundamental right to carry on business with the Government. 24.Therefore, a Court before interfering in tender or contractual matters, in exercise of power of judicial review, should pose to itself the following questions (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: â€oethe decision is
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so further observed that however, the Constitutional Courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute its view for that of the administrative authority. It is further observed that mere disagreement with the decision making process or the decision of the administrative authority is no reason for a Constitutional Court to interfere. It is further observed that the threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the Constitutional Court interferes with the decision making process or the decision. 10. Now, so far as submission on behalf of the petitioners that non deposit of entire amount of bid document fee/ bid processing fee cannot be said to be an essential condition relatable to eligibility on merits and non deposit of entire amount of bid document fee / bid processing fee would not render the petitioners disqualified for considering its bid on me
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en concerned party who has downloaded E tender document deposits the entire amount of bid document fee / bid processing fee and the EMD would get entry for the purpose of considering its bid at technical bid stage as well as price bid stage. Unless and until, the aforesaid amount is deposited as required and within the stipulated time, such a party would not get entry at all and cannot be said to be tenderer / bidder. Therefore, as such there is no question of considering its bid as on nonfulfillment of aforesaid terms and conditions and nondeposit of entire bid tender document fee / bid processing fee, it cannot get the entry at all and it cannot be considered to be bidder / tenderer at all whose bid is required to be opened and / or considered. At this stage, few decisions of the Hon'ble Supreme Court on the point are required to be referred to. 10.1. In the case of the Central Coalfields Limited and Another (supra), it is specifically observed and held by the Hon'ble Supreme
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has observed and held as under: [31] We were informed by the learned Attorney General that 9 of the 11 bidders furnished a bank guarantee in the prescribed and correct format. Under these circumstances, even after stretching our credulity, it is extremely difficult to understand why JVC was unable to access the prescribed format for the bank guarantee or furnish a bank guarantee in the prescribed format when every other bidder could do so or why it could not seek a clarification or why it could not represent against any perceived ambiguity. The objection and the conduct of JVC regarding the prescribed format of the bank guarantee or a supposed ambiguity in the NIT does not appear to be fully above board. [32] The core issue in these appeals is not of judicial review of the administrative action of CCL in adhering to the terms of the NIT and the GTC prescribed by it while dealing with bids furnished by participants in the bidding process. The core issue is whether CCL acted perversely e
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meaning. The court must, as far as possible, avoid a construction which would render the words used by the author of the document meaningless and futile or reduce to silence any part of the document and make it altogether inapplicable. 34. In Ramana Dayaram Shetty case, the expression registered IInd Class hotelier was recognized as being inapt and perhaps ungrammatical; nevertheless common sense was not offended in describing a person running a registered II grade hotel as a registered II Class hotelier. Despite this construction in its favour, respondents 4 in that case were held to be factually ineligible to participate in the bidding process. [35] It was further held that if others (such as the appellant in that case) were aware that nonfulfillment of the eligibility condition of being a registered II Class hotelier would not be a bar for consideration, they too would have submitted a tender, but were prevented from doing so due to the eligibility condition, which was relaxed in th
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too would have meaningfully participated in the bidding process. In other words, by rearranging the goalposts, they were denied the privilege of participation. [37] For JVC to say that its bank guarantee was in terms stricter than the prescribed format is neither here nor there. It is not for the employer or this Court to scrutinize every bank guarantee to determine whether it is stricter than the prescribed format or less rigorous. The fact is that a format was prescribed and there was no reason not to adhere to it. The goalposts cannot be rearranged or asked to be rearranged during the bidding process to affect the right of some or deny a privilege to some. [38] In G.J. Fernandez v. State of Karnataka, 1990 2 SCC 488 both the principles laid down in Ramana Dayaram Shetty were reaffirmed. It was reaffirmed that the party issuing the tender (the employer) has the right to punctiliously and rigidly enforce the terms of the tender. If a party approaches a Court for an order restraining
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ntroducing the privilegeofparticipation principle and the level playing field concept, this Court laid emphasis on the decision making process, particularly in respect of a commercial contract. One of the more significant cases on the subject is the threejudge decision in Tata Cellular v. Union of India, 1994 6 SCC 651 which gave importance to the lawfulness of a decision and not its soundness. If an administrative decision, such as a deviation in the terms of the NIT is not arbitrary, irrational, unreasonable, mala fide or biased, the Courts will not judicially review the decision taken. Similarly, the Courts will not countenance interference with the decision at the behest of an unsuccessful bidder in respect of a technical or procedural violation. This was quite clearly stated by this Court (following Tata Cellular) in Jagdish Mandal v. State of Orissa, 2007 14 SCC 517 in the following words: Judicial review of administrative action is intended to prevent arbitrariness, irrationalit
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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 succour to thousands and millions and may increase the project cost manifold. This Court then laid down the questions that ought to be asked in such a situation. It was said: Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide 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
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y, the soundness of the decision taken by the employer ought not to be questioned but the decision making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone or a decision that no responsible authority acting reasonably and in accordance with relevant law could have reached as held in Jagdish Mandal followed in Michigan Rubber. [48] Therefore, whether a term of the NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders as held in Ramana Dayaram Shetty. However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. The lawfulness of that decision can be questioned on very limited grounds, as mentioned in the various decisions d
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ermissibly rewritten by the High Court. [52] There is a wholesome principle that the Courts have been following for a very long time and which was articulated in Nazir Ahmad v. King Emperor, 1936 AIR(PC) 253 namely Where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. There is no valid reason to give up this salutary principle or not to apply it mutatis mutandis to bid documents. This principle deserves to be applied in contractual disputes, particularly in commercial contracts or bids leading up to commercial contracts, where there is stiff competition. It must follow from the application of the principle laid down in Nazir Ahmed that if the employer prescribes a particular format of the bank guarantee to be furnished, then a bidder ought to submit the bank guarantee in that particular format only and not in any other format. However, as mentioned above, there is no inflex
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anner whatsoever. 10.2. In the case of Afcons Infrastructure Limited (supra) in para 50 and after considering earlier decision in the case of Central Coalfields Limited and Another (supra), Dwarkadas Marfatia and Sons (supra), Raman Dayaram Shetty vs. International Airport Authority reported in (1979) 3 SCC 489, it is observed and held that the holder / employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. It is further observed that Constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of terms of the tender conditions. It is further observed that it is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the Constitutional Courts but that by itself is not a reason for inter
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favoritism. The terms and conditions of the tender document are applied uniformly all other bidders had complied with the the aforesaid and have deposited the entire amount of bid document fee i.e. ₹ 21,240/( ₹ 18000/+ GST @18%) and EMD. At this stage, it is required to be noted that in the pre bid meeting held on 22.08.2017. Admittedly, representative of the petitioners did not remain present in the prebid meeting and did not raise any query with respect to the GSTIN number etc. If the petitioners had any doubt, it could have and ought to have sought clarification from the authority concerned as mentioned in the tender document. In the nProdcure tender consolidated details, it has been specifically mentioned that in case bidder needs any clarifications and / or if training is required to participate online tenders, they can contact (n)Procure Support Team. Moreover, the petitioner could have and ought to have at least made representation to the respondent Corporation prio
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₹ 21,240/and thereby complied with the relevant terms and conditions / essential conditions. 11. Now, so far as the submission on behalf of the petitioners that subsequently the petitioners in fact sent the demand draft of difference of amount of bid document fee by sending demand draft subsequently which was returned and even thereafter deposit the amount of GST on reverse charge basis and therefore, there is not loss to the respondent Corporation is neither here nor there. What is required to be considered as payment of entire amount of bid document fee / bid processing fee and the EMD at the relevant time and before the prescribed period mentioned in the tender document. As observed herein above, such a requirement was required to be complied with the entry stage itself. As observed herein above, unless and until, entire amount of bid document fee/ bid processing fee and the EMD is deposited the persons who submitted bid would not get entry at all and only after the aforesaid
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ving found ineligible on the ground of non compliance of essential condition of non deposit of entire bid tender document fee and consequently not getting the entry at the initial stage itself, thereafter, it would not be open for the petitioners to challenge the condition and / to contend that such a condition was not warranted. 12.1. Now, so far as submission on behalf of the petitioner that once the petitioners downloaded the entire tender documents and submitted its bid, the bid submitted by the petitioner is required to be considered at technical stage and price bid stage is concerned, it is required to be noted that entire tender process was through E Tender process and downloading of tender document was free. Unless and until all the terms and conditions of the tender document, more particularly, nProcure and the essential conditions are complied with the petitioners / bidders would not get right automatically to consider him eligible. Downloading of tender document is different
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aid has no substance. At the outset, it is required to be noted that as such no such case has been pleaded. However, in the affidavit in reply, it is specifically submitted on behalf of the respondent Corporation that aforesaid shall not be applicable in case of second time tender process. 13.0. Now, so far as reliance placed upon the decisions of the G.J.Fernandez (supra), Poddar Steel Corporation (supra), Rashmi Metaliks Limited and Another (supra), Om Prakash Sharma (supra), Jal Mahal Resorts Private Limited (supra), Baksh Security And Personnel Services Private Limited (supra), MHS Infra Tech Pvt Ltd (supra), PES Installations Pvt. Ltd and Anr (supra) and R.G. Holding Pvt Ltd (supra) by the learned counsel for the petitioners are concerned, in the facts and circumstances of the case, the said decisions shall not be applicable to the facts of the case on hand. At this stage, it is required to be noted that in the case of Central Coalfields Limited and Another (supra) and Afcons Infr
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