TMI Blog1990 (2) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... us, is that the K.P.C. should not at all have entertained the tender of M.C.C. as the M.C.C. did not fulfill certain preliminary requirements which, under the Notification Inviting Tenders (N.I.T.), had to be fulfilled even before the forms of tender could be supplied to any intending contractor. The contract pertained to the construction of a Main Station Building of a Power House at the Raichur Thermal Power Plant at an estimated cost of about ₹ 1.8 crores. The N.I.T. dated 27.12.1988 invited tenders from registered contractors of appropriate class. Paragraph I of the notification listed three Minimum qualifying requirements viz., that the intending tenderer: (1) should have executed civil and architectural works including insulation in a power plant/industrial complex, preferably in power plant; (2) should have executed atleast 1000 cubic metres per month of concrete pouring and atleast 300 cubic metres per month of brick work at one site; and (3) should have had an annual turnover of atleast 1 crore for each of the preceding three years. Para V-required the intending tenderers to furnish the following information along with the application for issue of bla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that paragraphs I and V of the N.I.T. specified certain pre-qualifying requirements. Unless these requirements were fulfilled, the contractor was not even entitled to be supplied with a set of tender documents. It is submit-ted that M.C.C. did not comply with these requirements and hence its application for tender forms should have been rejected at the outset. The learned single Judge in the High Court went into the matter in great detail and came to the conclusion that the petitioner's contentions were not well founded. He took the view that the pre-requisites for supply of tender forms were only the three conditions set out in para I of the N.I.T. and that the details called for in para V could be supplied at any time. He, therefore, rejected the petitioner's contention that the extensions of time given to M.C.C. to submit the tender with requisite clarifications were not warranted. The Division Bench, on appeal, did not express any clear opinion as to the nature of the requirements set out in Para V but was satisfied, on an overall view, that there was nothing unfair or arbitrary about the award of the contract to the M.C.C. It observed: We have carefully consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o operation only after the tenders are received and para XII makes it clear that the K.P.C.'s decision regarding the fulfilment of para IV may remain open right till the actual award of the contract. However, on the contrary, the condition set out in para VI has clearly to be fulfilled even before asking for tender forms. Para V seems to stand some-where in between. If one reads paras I and V together, it will be seen that a common thread runs through them and that they are really meant to supplement each other. It is in order to satisfy itself that the requirements of para I(1) and (2) are fulfilled that the K.P.C. calls for the certificates mentioned in para V and the fulfilment of the requirement in para I(3) has obviously to be verified by reference to the audited balance sheets called for under clause (a) of para V. The reference in clause (d) of para V to the annual output of the works of the above nature is also obviously a reference to the works of the nature described in para I. It is clear that at least some, if not all, of the documents referred to in para V, are intended to verify the fulfilment of the three prequalifying requirements of para I. The stipulation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s submitted, do not come up to the requirements of Para I. We think that this criticism, based on the differences in wording as between the language of para I and the certificates produced by the M.C.C., is too weak to be accepted. It was for the K.P.C. to consider the sufficiency of these certificates. The conditions only required that the applicant should supply information to show that he had experienced in insulation work and that he could carry out brick work in a month to the extent indicated. It was for the K.P.C. to assess the value of the certificates furnished in this regard and if the K.P.C. considered them sufficient to warrant the issue of a tender form to the applicant, we do not think we should interfere with their decision. So far as para V is concerned, the criticism is that two items of information concerning the requirements of clause (d) of Para V were not supplied along with the request for application of tender forms.but were supplied much later. It was only on 21.6.89 that M.C.C. furnished a certificate that they had executed hollow cement blocks work for the Indian Telephone Industries Ltd. but even that certificate gave no details. It vaguely stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral sword shall perish with the sword. This Court accepted the rule as valid and applicable in India in A.S. Ahluwalia v. Punjab, [1975] 3 SCR 82 and in subsequent decision given in Sukhdev v. Bhagatram, [1975] 3 SCR 619. Mathew, J., quoted the above-referred observations of Mr. Justice Frankfurter with approval. It may be noted that this rule, though supportable also as emanation from Article 14, does not rest merely on mat article. It has an independent existence apart from Article 14. It is a rule of administrative law which has been judicially evolved as a check against exercise of arbitrary power by the executive authority. If we turn to the judgment of Mr. Justice Frankfurter and examine it, we find that he has not sought to draw support for the rule from the equality clause of the United States Constitution, but evolved it purely as a rule of administrative law. Even in England, the recent trend in administrative law is in that direction as is evident from what is stated at pages 540-41 in Prof. Wade's Administrative Law 4th edition. There is no reason why we should hesitate to adopt this rule as a part of our continually expanding administrative law. XXX XXX ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the prescribed condition of eligibility, was clearly discriminatory, since it excluded other person similarly situate from tendering for the contract and it was plainly arbitrary and without reason. The acceptance of the tender of the 4th respondents was, in the circumstances invalid as being violative of the equality clause of the Constitution as also of the rule of administrative law inhibiting arbitrary action. Shri Vaidyanathan, who supplemented the arguments for the petitioner, contended that this rule has been demonstrably infringed in the present case, even on the K.P.C.'s own showing. He cited two documents filed by the K.P.C. to substantiate this contention. The first is A note on the tendering system in K.P.C. which, inter alia, reads: 2.00 Brief tender notification containing description of the work, estimated cost of the work, period of completion and the minimum prequalifying/eligibility conditions required and other general requirements such as the value/fashion of C.M.D. to be furnished, latest certificates works, and furnishing of audited balance sheet etc., duly indicating the dates for issuing and receipt of tenders is widely circulated and also adve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been to go by the minimum qualifying requirements as stated in the N.I.T. and the rest of the information were only for assessing the capabilities of the tenderers as well as their eligibility and simply because Mr. G.J. Fernandez has made a complaint it would not be proper to deviate from this established procedure. As per clause-11, the Corporation reserves the fight to reject or accept the tender without assigning any reasons. In this particular case, the lacuna in furnishing the information has been set right subsequently by the tenderer before opening of the price documents, the Chief Engineer had come to the conclusion that the firm had fulfilled all the prequalifying requirements and as such the tender of M/s M.C.C. had been found to be in order. It was also clarified by GM(T) that the use of cement hollow block masonry may not be required at all and instead the brick masonry may be used as this item of work was essentially for a filler wall and the walls would be non-load bearing. It was clarified that those who were prequalified had satisfied the condition with regard to quantity of brick masonry work. 57.02 Under the circumstances, the Committee recommended entru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to time. Para 2.00 of the note makes it clear that the K.P.C. took the view that para I alone incorporated the minimum prequalifying/eligibility conditions and the data called for under para V was in the nature general requirements . It further clarifies that while tenders will be issued only to those who comply with the prequalifying conditions, any deficiency in the general requirements will not disqualify the applicant from receiving tender documents and that data regarding these requirements could be supplied later. Right or wrong, this was the way they had understood the standard stipulations and on the basis of which it had processed the applications for contracts all along. The minutes show that they did not deviate or want to deviate from this established procedure in regard to this contract, but, on the contrary, decided to adhere to it even in regard to this contract. They only decided, in view of the contentions raised by the appellant that para V should also be treated as part of the prequalifying conditions, that they would make it specific and clear in their future N.I.T.s that only the fulfilment of prequalifying conditions would be mandatory. If a party has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as that party come to Court with any such grievance. The question, then, is whether the course adopted by the K.P.C. has caused any real prejudice to the appellant and other parties who had already supplied all the documents in time and sought no extension at all? It is true that the relaxations of the time schedule in the case of one party does affect even such a person in the sense that he would otherwise have had one competitor less. But, we are inclined to agree with the respondent's contention that while the rule in Ramana's case (supra) will be readily applied by Courts to a case where a person complains that a departure from the qualifications has kept him out of the race, injustice is less apparent where the attempt of the applicant before Court is only to gain immunity from competition. Assuming for purposes of argument that there has been a slight deviation from the terms of the NIT, it has not deprived the appellant of its right to be considered for the contract; on the other hand, its tender has received due and full consideration. If, save for the delay in filing one of the relevant documents, M.C.C. is also found to be qualified to tender for the contract, no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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