TMI Blog2019 (11) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner has submitted his Techno Commercial and Price Bid on 22/12/2018. The respondents have stated that the contract was in respect of supply, installation, commissioning of skid mounted oil lubricated helium gas recovery compressor with essential spares and as per Part I ie., techno commercial bid, the bid was opened on 31/12/2018. It has been stated that the terms and conditions mentioned at Clause 45.1 of eDPS-0-103 version 2018-2, provides in case the bidder does not accept the terms and conditions stipulated in the NIT, their bid will be outrightly rejected . The petitioner himself has admitted his mistake while sending the e-mail communication to the answering respondents stating that the price quoted was inadvertently indicated as FOB instead of ex-works. The GST @ 18% indicated by the petitioner in their attachment to the techno commercial bid, is contrary to the terms and conditions of the NIT and as the petitioner has deviated from the terms and conditions of the NIT, the respondents have rightly disqualified the petitioner - the respondents have rightly rejected the petitioners tender. The scope of interference in the tender matters is quite limited. The apex Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the purchase manual issued by the Directorate of Purchase and Stores, Department of Atomic Energy and his contention is that the bid submitted by him was in consonance with the aforesaid manual. The contention of the petitioner is that the action of the respondents in disqualifying the petitioner is arbitrary and is also violative of Article 14 of the of the Constitution of India, hence, rejection of the petitioner's bid is bad in law. It has been further stated that the order passed by the respondents in disqualifying the petitioner is wholly illegal, the petitioner has not committed breach of any of the terms and conditions of the NIT. The petitioner has prayed for quashment of the communication dated 6/3/2019 issued by the respondents. 02. A detailed and exhaustive reply has been filed in the matter and the respondents have stated that the petitioner did participate in the tender process, however, as the petitioner has deviated from the tender conditions and, therefore, the petitioner has been declared as disqualified. The respondents have stated that the contract was in respect of supply, installation, commissioning of skid mounted oil lubricated helium gas recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he NIT terms; a mail communication dated 6/3/2019 was issued to the petitioner conveying rejection of their bid and, therefore, the rejection of the bid was fair and reasonable and the decision cannot be treated as arbitrary. 05. The stand of the respondents is that the petitioner's bid was not in consonance with the terms and conditions of the tender document and as per the terms of the tender, after evaluation of part I techno commercial bid, the part II ie., price bid is opened. The respondents have stated that the petitioner has quoted GST @ 18% in their attachment of techno-commercial bid which is contrary to the NIT. The applicable GST is @ 5% and the price bid clearly mentions that where ever 0 Zero is indicated in the price bid, the column is blocked by the purchaser. The contention of the respondent is that the petitioner in fact, committed a mistake while submitting the tender. The respondents have categorically stated that the petitioner has admitted the mistake committed by the petitioner Company while sending an e-mail dated 18/3/2019. The e-mail sent by the petitioner reads as under : Dear Sir, With reference to your below mail dated 6/3/2019, we w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s specifically called for, documents related to cost / price of blocked columns should not be attached by the bidder, failing which the bid shall be summarily rejected. (c) Offers will be summarily rejected, if price bid template and check-list template are not filled properly. Bids indicating price, GST etc., in irrelevant places will be summarily rejected. (d) The nature of price to be indicated by the bidder shall be : (i) For bids in INR; Safe delivery upto consignee. (ii) For bids in foreign currency; (a) Shipment by sea FOB port of shipment (b) Shipment by Air FCA at the specified gateway airport. 09. It has been further stated that as per the NIT conditions, the payment terms indicated that 80% of the contract value exclusive of installation and commissioning shall be released by the purchaser after delivery of all consignments and inspection by purchaser's inspector and balance payment shall be made after final inspection, testing and acceptance and on submission of acceptance of PBBG. 10. It has been further stated that on examination of bid submitted by the petitioner it was found that the offer was not complying with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ummarily rejected. They have deviated by indicating 1 and 2 above 4 Revised template e-DPS-P-103 version 2018-2 uploaded to the subject tender on 21/12/2018 which is in advance of due date ie., 31/12/2018 They have referred old version while uploading their offer. 13. In the light of the aforesaid deviations, the respondents have rightly rejected the petitioners tender. The scope of interference in the tender matters is quite limited. 14. The apex Court has time and again dealt with the issue of interference in the matter of award of contract. The apex Court in the case of Manohar Lal Sharma Vs. Narendra Damodardas Modi (Writ Petition (Criminal) No.225 of 2018, decided on December 14, 2018) in paragraphs No.7 and 8 has held as under:- 7. Parameters of judicial review of administrative decisions with regard to award of tenders and contracts has really developed from the increased participation of the State in commercial and economic activity. In Jagdish Mandal vs. State of Orissa and Ors. 1 this Court, conscious of the limitations in commercial transactions, confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the Court can examine the decision making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process the Court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should intervene. 17. The apex court in the aforesaid case has observed that decision taken by the authorities is not amenable to the judicial review and the same can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncrease the project cost manifold. The Court before interfering in tender or contractual matters in exercise of power of judicial review, should restrict its inquiry to 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 no responsible authority acting reasonably and in accordance with relevant law could have taken it; and whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226. 20. A similar view has been taken by the apex Court in the case of Central Coalfields Ltd. Vs. SLL-SML Joint Venture Consortium and Others reported in (2016) 8 SCC 622 . Paragraph No.43 of the aforesaid judgment reads as under:- 43. Continuing in the vein of accepting the inherent authority of an employer to deviate from the terms and conditions of an NIT, and reintroducing the privilege-of-participation principle and the level playing field 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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