TMI Blog2016 (7) TMI 1384X X X X Extracts X X X X X X X X Extracts X X X X ..... t No.1’s offer as matching with the revised minimum wage calculation, as that would make a new contract between the parties that the parties have not made themselves. As seen that the present tender has not gotten off the ground since May 2015, and one year’s precious time has been wasted due to litigation between the parties. We must hasten to add that the Government of Gujarat is partly to blame for this inasmuch as it arrived at a minimum wage figure and did not disclose the same to the tendering parties twice. Even in the second round of litigation, the Government did not disclose the newly arrived at minimum wage figure of ₹ 2,91,00,000/- to the two persons in the fray before us. Ordinarily, therefore, we would have asked the Government to disclose the second figure of minimum wage and restart the tendering process. However, we do not think that the justice of the case requires us to do so, for two reasons. First and foremost, Respondent No.1 before us has clearly violated the strict terms of the tender condition on every occasion and hence cannot be given relief. And, secondly, we already find that due to litigation the present tender has not taken off for over o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislations, rules, and orders as issued from time to time. Annexure 2 (Financial Bid) Format for Financial Bid Price Bid: (Financial/Commercial Bid submitted in physical form shall be liable for rejection. It should be submitted online only at https://www.nprocure.com ) Please provide price bid for supply of Man Power to be deployed at different Check-posts/CMC. Sr. No Particulars Qty Cost per person per month without tax Total cost for 24 months without tax 1 Data Entry operator 120 2 Computer Engineer 02 3 Electrician 12 4 Supervisor 12 Total Additional Service Tax % ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it their bids after being appraised of the minimum wage figure given by the Labour Department. This was done as the High Court was of the opinion that all the bidders ought to have been given an opportunity to revise their bills subsequent to the minimum wage calculated by the Labour Department. 5. In pursuance of the aforesaid judgment, the Transport Department of the Government of Gujarat furnished to all the competing bidders the Labour Department s calculation that minimum wages plus bonus payable for the contract was ₹ 3,00,92,346/-. 6. In response to the above, the Appellant wrote a letter dated 2.11.2015 sticking to the original bid figure of ₹ 2,92,93,944/-. On 3.9.2015, Respondent No.1, in response to the minimum wage figure disclosed, wrote to the Government of Gujarat, as follows:- (6.3) Thus, it can be seen that according to the calculation, Minimum Wages and other statutory benefits payable to the employees for 730 days [2 years of contract] comes to ₹ 3,00,92,346 [without service tax]. The price at which I am ready to work is ₹ 2,77,68,000 [without service tax]. Thus, against payment of wages and all statutory benefits of ₹ 3,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... again knocked at the doors of the High Court in a second writ petition filed by it. By the impugned judgment dated 22.2.2016, the High Court allowed Respondent no.1 s petition in the following terms:- 8. Under the circumstances, the decision of the authorities to shortlist respondent No.3 for awarding the contract is set aside. The offer of the petitioner shall be treated as matching with the revised minimum wage calculation. The petitioner shall give such offer in clear writing and undertaking to the authorities latest by 25.2.2016. The respondent authorities, unless there is any other disqualification of the petitioner to carry out the contract, being the lower, shall accept the same. 9. Petition is disposed of. 9. Being aggrieved by the aforesaid judgment, the Appellant is before us. 10. Shri Harin Raval, learned senior advocate appearing on behalf of the Appellant, has pointedly referred to the tender conditions and has argued before us that Respondent No.1 s writ petition was not at all maintainable in view of the fact that Respondent No.1 stuck to its earlier offer of ₹ 2,77,68,000/- which was lower than the figure of ₹ 3,00,92,346/- as well as the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the component of salary quoted is less than the minimum wage prescribed, the bid is liable to be rejected. On this ground alone, Respondent No.1 s bid is liable to be rejected inasmuch as, vide its letter dated 3.9.2015, Respondent No.1 stuck to its original figure of ₹ 2,77,68,000/- which is way below the minimum wage fixed by the Government. Secondly, Shri Raval is also right in stating that the without prejudice offer of ₹ 3,00,92,346/- is an offer which is not fixed, but open ended. This is clear from the fact that it was up to the Government then to pick up either figure by way of acceptance. This is clearly interdicted by clause 2.5.6 of the tender which states that prices quoted by the bidder have to be fixed, and no open ended bid can be entertained, the same being liable to be rejected straightaway. Such condition is obviously an essential condition of the tender which goes to the eligibility of persons who make offers under the tender. 14. Unfortunately, even though the High Court noticed the open ended nature of Respondent No.1 s bid, it went on to add that the offer of Respondent No.1 shall be treated as matching with the revised minimum wage calculati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction; (v) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with; [para 66] 17. We also agree with the contention of Shri Raval that the writ jurisdiction cannot be utilized to make a fresh bargain between parties. 18. In General Assurance Society Ltd. V. Chandmull Jain, (1996) 3 SCR 500, this Court, in a slightly different context, stated: In other respects there is no difference between a contract of insurance and any other contract except that in a contract of insurance there is a requirement of uberrima fides i.e. good faith on the part of the assured and the contract is likely to be construed contra proferentem that is against the company in case of ambiguity or doubt. A c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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