TMI Blog2015 (12) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... s was the one dated 10.07.2015, which we referred to earlier. That undertaking, however, provided that service tax will be charged extra, if applicable at any stage. This, as we noted earlier, was contrary to Clause-34. It required the rates to be quoted inclusive inter alia of service tax - The petitioners do not deny that the condition contained in the undertaking is contrary to the terms and conditions of the tender. The petitioners, however, contend that it was an error that the official respondents called upon the petitioners to rectify and that the petitioners had, in fact, rectified the same. The petitioners, therefore, contend that their bid was not liable to be rejected. Clause-30 contemplates clarifications being sought by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.2 and 3 are the Executive Engineer and Superintending Engineer of the Electricity Division/Circle of the Union Territory. Respondent No.4 is the Chief Engineer of the Chandigarh Administration. Respondent No.5-M/s Vee Kay Electricals is the party to whom the work has been awarded upon the rejection of the petitioners bid. 3. Respondent No.2 invited tenders for the work of providing electrification of 2108 flats under the respondents general housing scheme. The following provisions of the e-tender notice are relevant:- 9. The financial bid of the bidders shall be opened one by one by the designated officer. .. .. .. .. 11. Bids other than in the form of E-Bids shall not be accepted against above Tenders. For this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .. .. .. .. 30. The offer must be completed in all respect along with all technical/financial detail as required in tender specification. During comparison of offer, if clarification would be required, the bidder will respond in not more than 4 days of issue of clarification letter failing which the bid of bidder will be evaluated on its own merit. .. .. .. .. 34. The rates shall be quoted in BOQ inclusive of all taxes like VAT, Service Tax etc. No taxes whatsoever shall be paid extra. Further 1% labour welfare cess will be deducted from the contractor bill, whenever raised. (emphasis supplied) 4. The petitioners submitted their bid. By a letter dated 10.07.2015, the petitioners submitted the required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NIT specifically provided that a copy of the undertaking shall be scanned and uploaded to the etender website within the period of the bid submission. Further, Clause-15(d) required the undertaking as per Clause-13 to be scanned and uploaded within the period of bid submission. The undertaking furnished by the petitioners was the one dated 10.07.2015, which we referred to earlier. That undertaking, however, provided that service tax will be charged extra, if applicable at any stage. This, as we noted earlier, was contrary to Clause-34. It required the rates to be quoted inclusive inter alia of service tax. 8. The petitioners do not deny that the condition contained in the undertaking is contrary to the terms and conditions of the tender. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extra, as applicable, could have been ignored. 11. This interpretation of Clause-11 appears attractive at first blush. However, as Mr. Dhiraj Chawla, the learned counsel appearing on behalf of respondent No.5 submitted, the interpretation on behalf of the petitioners is incorrect. What is liable to be ignored is rates and other financial terms in any other form/letter head if attached incorporated by the vendor. The words in any other form/letter head relate to material other than the rates entered into BOQ and duly signed digitally. The undertaking which contained the said condition was digitally signed and could not have been ignored by the official respondents while evaluating the financial bid. This is for the reason that the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l/financial detail as required in tender specification. During comparison of offer, if clarification would be required, the bidder will respond in not more than 4 days of issue of clarification letter failing which the bid of bidder will be evaluated on its own merit. He submitted that Clause-30 contemplates clarifications being sought by the official respondents and being furnished by the bidders. The imposition of the condition contrary to the terms of the tender that the price is exclusive of service tax if applicable, does not fall within the ambit of Clause-30. The respondents by their letter dated 21.07.2015 did not seek a clarification in that regard. No clarification was necessary. The condition was clear, namely, that service ..... X X X X Extracts X X X X X X X X Extracts X X X X
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