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Nila Infrastructure Limited & 1 Versus Surat Municipal Corporation & 1

2017 (11) TMI 809 - GUJARAT HIGH COURT

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 .....

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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 .....

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d. - 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. - The is .....

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t 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 all .....

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entire amount of ₹ 21,240/and thereby complied with the relevant terms and conditions / essential conditions. - 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 .....

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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 .....

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ugned 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 .....

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d the bidder to make payment of ₹ 18,000/towards Bid/ Document Fee . Pursuant to the first RFP the petitioner no.1 submitted its online bid on 22.06.2017 and the physical bid on 23.06.2017. It is the case on behalf of the petitioners that as per the condition of First RFP, the petitioner no.1 also made the payment of ₹ 18000/towards bid / document fee. It appears that since the petitioner no.1 was the only entity who had submitted its bid in response to the First RFP, the respondent .....

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e 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 hr .....

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1 also prepared a Demand Draft of ₹ 18,000/for the payment of Bid/ Document Fee. However, since the respondent had not provided any details pertaining to its GST Registration / GSTIN, the Enterprise Resource Planning (ERP)system of the petitioner no.1, which is GST complaint, provided for the payment of GST @18% on reverse charge basis as per the provisions of Central Goods and Service Tax, 2017, petitioner did not deposit 18% GST. 3.2. It is the case on behalf of the petitioners that ther .....

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8% 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 .....

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the letter dated 19.09.2017 along with the Demand Draft dated 19.09.2017 with an endorsement Not Accept and Refused to accept . It is the case on behalf of the petitioners that in view of the aforesaid refusal, the petitioner no.1 addressed letter dated 22.09.2017 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 sin .....

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pose 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 .....

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ound that the petitioners had not deposited the bid/ document fee with 18@ GST and thereby to that extent the petitioners were not responsive of the eligibility criteria / terms and conditions of the tender document / notice that bidder was required to deposit the bid / document fee ₹ 18000/with GST @18%, the petitioners have preferred present Special Civil Application under Article 226 of the Constitution of India. 4.0. Shri Mihir Joshi, learned Senior Advocate has appeared on behalf of t .....

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n 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 .....

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hat 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 ₹ .....

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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 .....

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authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases. 5.4. It is further submitted by Shri Mihir Joshi, learned counsel for the petitioners that even otherwise the conditions of payment of Bid/ document / tender fees can neither be said to be a condition of eligibility nor the condition for evaluation. It is submitted that the charges for production of bid document per se is unrelated to bid evaluation. It is submitted that therefo .....

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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 basi .....

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ner 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 eliminate .....

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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 Autho .....

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(para 11). (8). PES Installations Pvt. Ltd and Anr vs. Union of India and Anr reported in AIR 2015 (Del) 108. (para 1, 17 and 24) (9). R.G. Holding Pvt Ltd vs. M.T.N.L & Anr reported in 2004(78) DRJ 274 (Delhi). 10. R.G. Holding Pvt Ltd vs. M.T.N.L. & Anr reported in AIR 2005 (Delhi) 134. 6.0. Present petition is vehemently opposed by Shri Prashant G Desai, learned counsel for the respondent Corporation. 6.1. It is vehemently submitted by Shri Desai, learned counsel for the respondent C .....

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s 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 com .....

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nsolidated 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 drawn the attention of the copy of the nProcure Tender Consolidated Details produced along with affidavit in reply. It is submitted that in the said nProcure document, it was specifically case that the document fee and EMD Details is mandatory to be paid. It is further submitted that in the said tender, it was also s .....

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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 am .....

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submitted that in the present case as the petitioners did not deposit the entire bid fee/ tender fee, no such receipt was generated in favour of the petitioners and therefore, the petitioners are not considered to be the tenderer itself, when technical bid was processed and thereafter the financial bid was opened. It is submitted that therefore, when the petitioners have not been considered to be tenderer itself on non deposit of the entire amount of bid fee / tender fee, there is no question o .....

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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 .....

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t to have deposited the entire bid document fee/ bid processing fee. It is submitted that as per the nprocure document, bid document fee/ bid processing fee was stated to be ₹ 21,240/- 6.5. It is vehemently submitted by Shri Desai, learned counsel for the respondent Corporation that in the present case the petitioners submitted bid online on 7.9.2017 and physical bid was received on 14.09.2017. It is submitted that as the petitioners did not pay the full bid document fee, which was mandato .....

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nt / 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 dif .....

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petitioners are never considered to be tenderer because of non fulfillment of primary condition of requirement of paying bid document fee as stated in the E Tender Document 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 th .....

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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 .....

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ration that the decision taken by the respondent Corporation is absolutely just, legal and absolutely in consonance with the terms and conditions of the tender document, which is neither perverse nor arbitrary and therefore, it is requested not to interfere with the same in exercise of powers under Article 226 of the Constitution of India. 6.10. On scope of judicial review in the contractual matter, Shri Desai, learned counsel for the respondent Corporation has relied upon the decision of the Ho .....

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mited (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 sub .....

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n. 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 .....

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etitioners 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 admit .....

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tion details and nProcure tender consolidated details deposit of entire amount of document fee and EMD details was mandatory to be paid. Even as mentioned in Annexure A24 (Instruction to Bidder regarding Tender Fee and EMD) submission of EMD and tender fee is for the purpose of opening bid. Therefore, only those parties who paid the EMD and tender fee electronically and thereafter in the physical format within the stipulated time is required to be considered the tenderers / bidders, whose bid is .....

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e, 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 .....

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d 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 .....

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ditions 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 variou .....

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nd substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities; (b) fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for s .....

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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 wi .....

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relevant law could have reached ? and; (ii) Whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226. 9.2. In the case of Afcons Infrastructure Limited (supra), again the Hon'ble Supreme Court has occasion to consider the nature and scope of judicial review in the tender matter / contractual matter. In the aforesaid decision, it is specifically observed and held by the Hon'ble Supreme Court after referring the decision of .....

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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 Cour .....

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rporation considered it as an essential condition. The respondent Corporation applied has the same unilaterally to all the bidders / persons / parties and other two bidders as such did deposit the entire bid document fee and the EMD. Not only that in the nProcure tender consolidated details which was available with the petitioners at the time when the petitioners downloaded the entire E Tender bid document, bid document process fee is stated to be ₹ 21,240/, which also specifically provide .....

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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 .....

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ould 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. It is further observed that whether a term of NIT is essential or not is a decision taken by the employer, which should be respected and soundness of that decision cannot be questioned by Court. In the case before the Hon'ble Supreme Court the bid was rejected for non furnishing of bank guarantee in prescribed format. While submitt .....

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y 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 .....

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n the prescribed format, thereby calling 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 prom .....

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d 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 ca .....

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pondents 4 treatment that was constitutionally impermissible. Expounding on this, it was held: It is indeed unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the interests of the individual. Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of th .....

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ords, 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 re .....

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ould 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 privilegeofparticipati .....

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d 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 .....

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oice or decision is made lawfully and not to check whether choice or decision is sound . When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public inter .....

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ess 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 cour .....

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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 irrational in any manner whatsoever or intended to favour anyone. The decision was lawful and not unsound. [47] The result of this discussion is that the issue of the acceptance or rejection of a bid .....

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ioned 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 t .....

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rwise this Court would be taking over the function of the tender issuing authority, which it cannot. [49] Again, looked at from the point of view of the employer if the Courts take over the decisionmaking function of the employer and make a distinction between essential and nonessential terms contrary to the intention of the employer and thereby rewrite the arrangement, it could lead to all sorts of problems including the one that we are grappling with. For example, the GTC that we are concerned .....

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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 .....

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id document but only within the parameters mentioned above. 55] On the basis of the available case law, we are of the view that since CCL had not relaxed or deviated from the requirement of furnishing a bank guarantee in the prescribed format, in so far as the present appeals are concerned every bidder was obliged to adhere to the prescribed format of the bank guarantee. Consequently, the failure of JVC to furnish the bank guarantee in the prescribed format was sufficient reason for CCL to rejec .....

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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 t .....

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n'ble Supreme Court in the aforesaid decision, to the facts of the case on hand, 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 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 docu .....

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formly 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 clari .....

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mbiguity, it is not possible for the petitioners to deposit the amount of GST. The petitioners neither sought any clarification nor did it make any representation to the respondent Corporation. Therefore, even the case on behalf of the petitioners so pleaded in the petition that the petitioners did not deposit the amount of GST in absence of GST registration / GSTIN is nothing but an afterthought. At this stage, it is required to be noted that as such the petitioners was not required to deposit .....

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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 pr .....

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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 com .....

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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 bi .....

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conditions of the tender document nProcure requirement. Therefore, merely because the petitioner and others were permitted to download the tender document free of cost, unless and until all the terms and conditions are satisfied, it does not get any right to consider its bid. Mere downloading of tender document cannot be said to be entry at the initial stage to consider such person who has downloaded as bidder / tenderer. 12.2. Now, so far as the submission on behalf of the petitioners that earl .....

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