TMI Blog2017 (11) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fee / bid processing fee i.e. ₹ 21,240/. Thus, in the tender consolidation details and “nProcure” tender consolidated details deposit of entire amount of document fee and EMD details was mandatory to be paid. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceipt 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. Petition dismissed - decided against petitioner. - Special Civil Application No. 18236 of 2017 - - - Dated:- 2-11-2017 - MR. M.R. SHAH AND MR. B.N. KARIA, JJ. For The Petitioner : Mr. Mihir Joshi, Sr. ADVOCATE with Mr.Sandeep Singhi, Advocate with Mr. Siddharth Joshi, advoctae for Singhi co, advocate For The Respondent : mr. Mihir Thakore, Sr. Advocate With Mr. Mahavir m Gadhvi, advocate And Mr. Prashant Desai, sr. Advocate With Mr Dhaval G Nanavati, Advocate CAV JUDGMENT ( PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. Rule. Shri Dhaval Nanavati, learned advocate waives service of notice of Rule on behalf of respondent no.1 and Shri Mahavir Gadhvi, learned advocate waives service of notice of Rule on behalf of respondent no.2. In the facts and circumstance of the case and with the consent of the learned advocates for the respective parties, present petition is taken up for final hearing today. 2.0. By way of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Surat Municipal Corporation response to queries Response to queries will be uploaded online as corrigendum/amendment after pre bid meeting. 3 Pre Bid Meeting Pre Bid meeting will be held on 22.08.2017 @ 16.00 hrs. Place of Pre bid meeting: 88, Conference hall, 2 nd 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 017 to the Municipal Commissioner of the respondent Corporation narrating the chain of events and inter alia requesting him to grant an opportunity to the petitioner no.1 to rectify the purported technical irregularity, if any, more so since such opportunities are generally given to bidders in order to keep the competition alive and that the RFP was reissued in the form of Second RFP to achieve the same object. 3.3. 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. 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d deposit on reverse charge basis before the relevant date of payment of GST under the provision of Central Goods and and Service Tax, 2017. It is submitted that therefore, as such neither there is a any loss to the respondent Corporation nor any consequence on non payment of GST had arisen. It is therefore, vehemently submitted that on mere non payment of GST @ 18% while making the payment of bid / document fee of ₹ 18000/, the petitioners could not have been declared disqualified at the technical bid stage, more particularly, when the amount of GST at 18@ was ₹ 3520/only, against which, the petitioners, as such, paid / deposited ₹ 18000/towards the bid / document fee and ₹ 93,00,000/towards EMD. It is submitted that therefore, action of the respondent Corporation in declaring the bid submitted by the petitioner no.1 as disqualified at technical stage is unreasonable and arbitrary, which deserves to be quashed and set aside. 5.2. It is further submitted by Shri Mihir Joshi, learned counsel for the petitioners that even otherwise the payment of bid / document fee or tender fees cannot be said to be a condition of the tender or the eligibility and therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 ₹ 18000/( bid/ document fee) can be condoned and the bona fide of the petitioner no.1 ought to have been considered favourably by the respondent no.1 Corporation, more particularly, when there is a substantial compliance. It is submitted that even otherwise, such lapse, if any, could have been condoned and could not have resulted into rejecting the bid of the petitioner no.1 at technical bid stage. 5.8. It is submitted that therefore, the rejection of the bid of the petitioners at technical bid is arbitrary, hyper technical, against the public interest since it eliminated competition, which deserves to be quashed and set aside. 5.9. It is further submitted by Shri Mihir Joshi, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that time, the first page which is provided to the said party in the Tender Consolidated Details in which bid document process fee is clearly mentioned as ₹ 21240/. For that, Shri Desai, learned counsel for the respondent Corporation has relied upon and dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted by Shri Desai, learned counsel for the respondent Corporation that in the present case E Tender Notice was published on website of the Corporation and downloading period of the Tender Document was from 01.08.2017 to 07.09.2017 upto 17.00 hrs. It is submitted that pre bid meeting (technical) was held on 22.08.2017 @ 16.00 hrs. It is submitted 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocument itself, the question of considering the petitioners as tenderer does not arise. It is submitted that therefore, it can be said that the petitioners are not part of the tender process at all as the petitioners are not considered to be tenderer / bidder at all. 6.8. It is further submitted by Shri Desai, learned counsel for the respondent Corporation that for participation of bid, one of the essential condition was to deposit the entire bid document fee and EMD. It is submitted that therefore, the deposit of entire bid document fee / EMD is an essential condition, which is required to be complied with before tender document / bid submitted is considered and / or before the concerned party like the petitioners are considered as bidder / tenderer. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers 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 Central Coalfields Ltd (supra), it is requested to dismiss the present petition. 8.0. In reply to the aforesaid submission, Shri Joshi, learned counsel for the petitioners has submitted that as such there is no delay at all in preferring the petition on 03.10.2017. It is submitted that the petitioner came to know only on 03.10.2017 and therefore, the present petition has been preferred on 03.10.2017. It is further submitted by Shri Joshi, learned counsel for the petitioners that as such deposit of the bid document fee cannot be said to be essential condition relatable to eligibility. It is submitted that in the present case the downloading is free of cost and therefore, non deposit of entire amount of bid document fee cannot be construed as non fulfillment of essential condition, for which, the petitioners bid is liable to be rejected outright. Making above submission, it is requested to allow the present petition. 9.0. Heard the learned counsel for the respective parties at length. At the outset, it is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 document fee / bid processing fee and EMD within the stipulated time as mentioned in the tender document, in favour of such party / bidder receipt is generated and on generation of the receipt in the records of the Corporation, such party is considered to be tenderer / bidder and subject to fulfillment of other terms and conditions, if any, its bid is required to be opened and thereafter considered on merits. In the present case, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to be conceded to the 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: oethe decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached ? and; ( ii) Whether public interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 21,240/, which also specifically provides that document fee and EMD is mandatory to be paid. Even in the Instruction to Bidder regarding Tender Fee and EMD it has been specifically mentioned that EMD and tender fee is for the purpose of opening bid. Thus, as such, deposit of tender fee and EMD can be said to be an essential condition at the entry stage itself. As observed herein above, after the E Tender bid document is downloaded which was free of cost and when 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lling for judicial review by a constitutional court and interfering with CCL's decision. [ 33] In Ramana Dayaram Shetty v. International Airport Authority of India, 1979 3 SCC 489 this Court held that the words used in a document are not superfluous or redundant but must be given some meaning and weightage: It is a wellsettled rule of interpretation applicable alike to documents as to statutes that, save for compelling necessity, the Court should not be prompt to ascribe superfluity to the language of a document and should be rather at the outset inclined to suppose every word intended to have some effect or be of some use . To reject words as insensible should be the last resort of judicial interpretation, for it is an elementary rule based on common sense that no author of a formal document intended to be acted upon by the others should be presumed to use words without a 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 reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . [ 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 the employer from strict enforcement of the terms of the tender, the Court would decline to do so. It was also reaffirmed that the employer could deviate from the terms and conditions of the tender if the changes affected all intending applicants alike and were not objectionable. Therefore, deviation from the terms and conditions is permissible so long as the level playing field is maintained and it does not result in any arbitrariness or discrimination in the Ramana Dayaram Shetty sense. [ 42] Unfortunately, this Court did not at all advert to the privilegeofparticipation principle laid down in Ramana Dayaram Shetty and accepted in G. J. Fernandez. In other words, this Court did not consider whether, as a result of the deviation, others could also have become eligible to participate in the bidding process. This principle was ignored in P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing 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 and in accordance with relevant law could have reached ; ( ii) Whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226. [ 44] On asking these questions in the present appeals, it is more than apparent that the decision taken by CCL to adhere to the terms and conditions of the NIT and the GTC was certainly not irrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended this term to be mandatory, yet the High Court held that the bank guarantee in a format not prescribed by it ought to be accepted since that requirement was a nonessential term of the GTC. From the point of view of CCL the GTC has been impermissibly 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble even prior to technical bid stage, cannot be said to be perverse and / or arbitrary and suffering from vice of favoritism. The understanding on the part of the respondent Corporation with respect to applying relevant terms and conditions of the tender document and to treat and / or consider the deposit of bid document fee / bid processing fee and the EMD before relevant date as essential condition to be fulfilled and / or complied with the at the entry stage itself cannot be said to be perverse and / or arbitrary to the terms and conditions of the tender document. At this stage, it is required to be noted that as such there are no specific allegation of mala fide and / or 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. 12. Now, so far as submission on behalf of the petitioners that such condition cannot be said to be essential condition is concerned, considering the aforesaid decisions of the Hon'ble Supreme Court and when the Corporation applied such condition to all the bidders and as such other bidders also complied with the same, thereafter it will not be open for the petitioners and that too after participating in the tender process that such a condition cannot be said to be essential condition. Similarly, submission on behalf of the petitioners that such a condition is not backed by law and therefore, such a condition could not have been provided is concerned, once having participated in the tender process thereafter and having found ineligible on the ground of non compliance of essential condition of non deposit of entire bid te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orts 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 Infrastructure Limited (supra), the Hon'ble Supreme Court did consider the aforesaid decisions and has distinguished the same on facts. Therefore, considering the decision of the Hon'ble Supreme Court in the case of Central Coalfields Limited and Another (supra) and Afcons Infrastructure Limited (supra), we are of the opinion that impugned decision cannot be said to be either perverse and / or arbitrary and / or mala fide and therefore, the same does not require any interference of this Court in exercise of under Article 226 of the Constitution of India. 14. In view of the above and for the reasons stated above, present petition fails and same deserves to be dismissed and is accor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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