9911796707
TMI Blog2011 (4) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... er Protection, hereinafter referred to as "FCS", issued a Request for Proposal, hereinafter referred to as "RFP", for the appointment of a vendor for District Mechanism for Public Distribution System, hereinafter referred to as "PDS". The last date for submission of bids was 7th January, 2010, which was subsequently extended till 17th February, 2010. 4. The RFP, as it stood at the time when the bids were invited, included Section 3.1 which, inter alia, provides that the bidder/one partner in the consortium must possess a valid certification in the Capability Maturity Model (CMM level 3 or above). In addition, the bidder/all partners of consortium (in case of consortium) should have an active (valid at least till June, 2010) ISO 9001:2000 certificate which had to be submitted as qualifying documents. 5. Subsequently, on 18th January, 2010, the prequalification (Eligibility Criteria) provided in the RFP was changed and the corrigendum, as far as it relates to Section 3.1, was amended so that the bidder/one partner in the consortium had to possess a valid certification in the Capability Maturity Model (CMM level 3 or above). In case of consortium, the partner developing the software ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id ISO 9001:2000 certificate at the time of making of the bid. 7. The case of the Appellant depends almost entirely on the submission that on the date of submission of the Bid, it had a valid and active ISO 9001:2000 certification, but that through inadvertence the expired certification of the previous year had been filed along with the bid papers. 8. Mr. Harish N. Salve, learned Senior Advocate, appearing for the Appellant Company, submitted that even if no ISO 9001:2000 certification was filed along with the bid documents, it would have made no difference and the submission of the bid would have been fully valid in view of Section 7.1.1, which consists of the Bidder's Check List and indicates what were the requirements for a valid bid and what supporting documents were to be submitted along with the bid papers. Referring to Clause 9 of the aforesaid Section, which deals with Quality Certification, Mr. Salve pointed out that the requirement of the said Clause was that the Company/one of the partners of the consortium (in case of consortium) should have an active ISO 9001:2000 certification at the time of submission of the Bid. Mr. Salve submitted that the said condition was duly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that all the partners of the consortium (in case of consortium) should have an active (valid at least till June, 2010) ISO 9001:2000 certification, at the time of submission of the bid. Mr. Salve submitted that all those documents to be submitted as qualifying documents, included the Quality Certificate and ISO 9001:2000 certificate, and if the said condition is read with the conditions contained in Clause 9 of Section 7.1.1 of the RFP, it would be seen that the requirement of a valid ISO 9001:2000 certification on the date of submission of the Bid documents was duly satisfied in the Appellant's case. 12. Mr. Salve also referred to the correspondence between Shri Naveen Prakash, the representative of the Wipro Consulting Services, which had been appointed a consultant for the selection of suitable candidates, and Shri Sandeep R. Chalke, who was the Chief Executive of QAL International Certification (India), which was the repository of information relating to such certificates. Mr. Salve pointed out that Shri Naveen Prakash had sent an E-mail to Shri Sandeep R. Chalke, requesting information as to whether Glodyne Technoserve Ltd., the Appellant herein, had a valid ISO 9001:2000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on to Shri Kesari. 15. In support of his aforesaid submissions, Mr. Salve firstly referred to the decision of a Three- Judge Bench of this Court in Tata Cellular Vs. Union of India [(1994) 6 SCC 651], which laid down certain tests in regard to the right of the Courts to intervene in a Tender process. This Court, inter alia, held that while the Court does not normally interfere with the Government's freedom of contract, invitation of Tender and refusal of any Tender which pertain to policy matters, when such a decision or action is vitiated by arbitrariness, unfairness, illegality or irrationality, then such decision can be looked into by the Court since the test was as to whether the wrong was of such a nature as to require intervention. In this regard, the Court laid down the areas of scope of judicial review in paragraph 69 of the judgment. For the sake of convenience, paragraph 69 of the said judgment is extracted hereinbelow : "69. A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated, the following are the requisites of a valid tender : 1. It must be unconditional. 2. Must be made at the proper place. 3. Must confor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Certificate on the date of submission of bid documents? and (iv) Even assuming that the Appellant possessed a valid ISO 9001 Certification, was the same produced before the Respondents? Referring to Clause 3.1 of the RFP relating to Pre-qualification (Eligibility Criteria), the learned Attorney General submitted that both the CMM Certificate and the ISO 9001:2000 Certificate were listed as documents to be submitted as qualifying documents and that the criteria set out in the said form would have to be read accordingly. In any event, the Bidder's Check List was completely changed by the Corrigendum which was subsequently issued. 20. The learned Attorney General submitted that the provisions of the RFP which had been initially provided were subsequently altered which had the effect of replacing the provisions relating to Prequalification (Criteria Eligibility) contained in Section 3 of the Request For Proposal and Section 7.1 containing the proforma of the Bidder's Response Form. The learned Attorney General submitted that the Appellant could not, therefore, rely any longer on the terms and conditions indicated in the un-amended RFP since the provisions of Sections 3 and 7 stood s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsortium) should have an active (valid at least till June 2010) ISO 9001:2000 certification at the time of submission of the bid." 22. The learned Attorney General urged that once the provisions relating to the Bidder's Response Form contained in Section 7.1 stood substituted by the Corrigendum and the provision relating to Quality Certification stood altered omitting the relaxation given regarding filing of documents with the tender papers, it was no longer open to the Appellants to rely on the unamended Form. 23. The learned Attorney General also submitted that Shri Navin Prakash had collected the information regarding the ISO 9001 Certification of the Appellant Company on his private initiative and not under the instructions of the Tender Advisory Committee. Furthermore, the said information was not divulged by him at the meeting which was held at 2.15 p.m. on the same day when the said information was received. Referring to the Disqualification Clause contained in paragraph 4.11.6 in the Request For Proposal, the learned Attorney General pointed out that the proposal of the bidder was liable to be disqualified if, inter alia, the bid received from him was in incomplete form o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho had responded to the tender notice, one stood disqualified at the threshold and the lowest tenderer stood disqualified for having filed the requisite documents three days late. In effect, the Appellant in the said case ultimately turned out to be sole bidder and his bid was accepted, being the lowest among all the eligible bids. 27. Referring to the decision in the Tata Cellular case (supra), cited on behalf of the Appellant Company, the learned Attorney General pointed out that the said case was not a case of omission, but of breach of the mandatory condition of filing certain documents which were required to be filed. 28. The learned Attorney General submitted that the order of the High Court impugned in the present appeal did not suffer from any infirmity which required any interference by this Court. 29. The submissions made by the learned Attorney General were reiterated by Mr. Paras Kuhad, appearing for the Respondent No.4, HCL Construction Ltd, which was impleaded as a Respondent by this Court on 3rd August, 2010. Mr. Kuhad submitted that having regard to the fact that a Corrigendum had been issued by which the provisions of paragraphs 3.1 and 7.1 had been completely s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been rejected at the Technical bid stage. 32. Having considered the submissions made on behalf of the respective parties, we are inclined to accept the submissions made by the Attorney General that the introduction of the Corrigendum completely changed the provision in the Bidder's Response Form relating to submission of the Quality Certificate in the form of an active ISO 9001:2000 certification. In any event, the appellant's contention based on clause 9 of Section 7.1.1 of the RFP as it stood prior to corrigendum is misconceived. The said clause 9 specifically provided: ".....A copy of the Quality certificate or documentation of the Quality policy needs to be provided along with the bid document. In case the certificate is due for renewal, the bidder should ensure that the renewed certificate is made available at the time of signing of contract. In case the same is not provided, the Department may consider negotiating the award of contract with the L2 bidder." The above provision obliges a tenderer to produce along with the bid document a copy of the Quality certificate which is valid and active on the date of submission of the bid and it does not enable a bidder to withh ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
