TMI Blog2004 (10) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... forementioned techniques for a length of around 600 kms. The tender document had two Sections. Section-I, captioned as NIT, inter-alia, contained the basic eligibility conditions, details of area wise works, time and last date of submission of bids and the schedule of Tender. Section-II contained twenty two instructions to bidders. The bid was to be in two parts, namely, Part A - Techno Commercial and Part B - Financial. The Financial and Techno Commercial bids were to be submitted in quadruplicate, indicating original, duplicate, triplicate and quadruplicate on the sealed cover/envelope. The eligibility of the bidder was to be considered only at the time of evaluating the commercial and technical bids. In the NIT it was specifically mentioned that the sale of the tender documents would not confer any eligibility or qualification on the purchaser to bid for the tender. As per instruction No.4 in Section-II, the tender was to be accompanied by an earnest money of amount mentioned in the NIT in the form of a demand draft/pay order in favor of the Accounts Officer (MM), MTNL, New Delhi. The said clause stipulated that tenders not accompanied by earnest money shall be summarily rejecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is stated that since it was received after 11:25 hrs., which was the time for submission of bids, it had no relevance unless the bidder was asked for the same. 7. We have head Mr. V.K.Shali, learned counsel for the petitioner and Mr. Ravi Sikri, learned counsel for the MTNL. 8. Mr. Shali has strenuously urged that the decision of the MTNL not to open the tender documents submitted by the petitioner because of the omission to superscribe the particulars of the earnest money on the outer envelope and rejection of the bid summarily is totally arbitrary, irrational and illegal inasmuch as the said condition in the NIT was, not an essential condition and Therefore, MTNL should not have insisted on its strict literal compliance. It is thus, submitted that MTNL ought to have ignored an unintended clerical error, particularly when it had nothing to do with the performance of the contract. It is also contended that the impugned decision is ex-facie illegal because the MTNL has failed to draw a distinction between an essential and an ancillary condition in the NIT. In support of the proposition that super scribing of the particulars of EMD on the envelope was not an essential condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principles of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tender. Instruction No.8, which is also of some relevance reads as follows: 8. SUMMARY REJECTION OF BIDS 8.1 Any bid received late without conclusive proof that it was delivered before the specified closing time. 8.2 Any bid, unless exempted specifically not accompanied by required earnest money or received with shorter validity period and insufficient amount of EMD. 8.3 Quotations from the bidder, without letter of authority from the principal, wherever required. 8.4 Any conditional bid. 8.5 Bid without purchase of tender from MTNL/ Tender document cost in case it is downloaded from MTNL web site. 8.6 Any bid received not signed by duly authorised signatory at all appropriate place. 8.7 Non-compliance of any of the eligibility conditions mentioned under Clause 6.1 to 6.5 of Section-II. Instruction No.11.1, on which strong reliance is placed by MTNL, is in the following terms: 11.1 Tender shall be submitted in sealed cover. Unsealed tenders will be summarily rejected. Bids will be invited in two envelopes. One envelope should contain commercial Technical Bid while the second will contain Financial Bid only. This will be indicated o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted and, Therefore, the bid had to be rejected. 15. There is no gainsaying that as a general rule tender conditions have to be adhered to scrupulously, for otherwise, as observed by the Supreme Court in West Bengal Electricity Board Vs . Patel Engineering Co. Ltd. [2001]1SCR352 any relaxation or waiver of a tender condition, unless so provided in the NIT, would encourage and provide scope for discrimination, arbitrariness and favoritism, which are totally opposed to rule of law and our Constitutional values. But a distinction has to be drawn between an essential condition and an ancillary condition. It needs little emphasis that an essential condition has to be enforced punctiliously and rigidly but an ancillary condition can be waived depending on the facts and circumstances of a given case. We are of the considered view that in the instant case, the competent authority acted irrationally in insisting on literal compliance of Instruction No.11.1 of the NIT and Therefore, its decision not to open petitioner's bid and disqualify them at the outset being illogical and too extreme cannot be sustained. 16. A similar issue came up for consideration of the Apex Court in Po ..... X X X X Extracts X X X X X X X X Extracts X X X X
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