TMI Blog2019 (1) TMI 2013X X X X Extracts X X X X X X X X Extracts X X X X ..... how Respondent No. 2 can be brought back in the event that Respondent No. 1 does not agree to carry out the work for the lower bid amount of Respondent No. 2. Appeal disposed off. - CIVIL APPEAL NO. 1049 OF 2019 (ARISING OUT OF SLP (C) NO. 26811 OF 2018) WITH CIVIL APPEAL NO. 1050 OF 2019 (ARISING OUT OF SLP (C) NO. 27818 OF 2018) - - - Dated:- 23-1-2019 - HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN AND HON'BLE MR. JUSTICE NAVIN SINHA For the Parties:- Mr. Shekhar Naphade, Adv., Mr. Gagan Sanghi, Adv., Mr. J.B. Kasat, Adv., Mr. Rameshwar Prasad Goyal, AOR, Mr. K.parameshwar, AOR, Mr. R. Basant, Sr. Adv., Mr. Hrishikesh Chitaley, Adv., Mr. Anup Gilda, Adv., Mr. J.T. Gilda, Adv., Mr. Vijay Kari Singh, Adv., Mr. Rajat Joseph, AOR, Mr. Raju Ramachandran, Sr.Adv., Mr. K. Parameshwar, AOR, Mr. M.V. Mukunda, Adv., Mr. Nishant Ramakantrao Katneshwarkar, AOR, Ms. Deepa M. Kulkarni, Adv., Mr. Anoop Kandari, Adv., Mr. Rameshwar Prasad Goyal, AOR ROHINTON F. NARIMAN, J. 1) Leave granted. 2) A Tender was called by the appellant before us on 06.01.2018 for balance earthwork to be done in a canal. The Tender was ultimately replied to by three persons whose bids, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st put to tender to 10% below the cost put to tender, tenderer shall submit the demand draft or FDR or BG of the amount equal to 1% of cost put to tender towards performance security in Envelope No.2 of tender. ii) If the tenderer quote his offer more than 10% below (offer below than 10%) the cost put to tender, tenderer shall submit the demand draft or FDR or BG of the cumulative amount which is equal to the amount by which offer is more than 10 % below plus the amount as per (i) above in the Envelop No.2 of tender. (For example, for 14% below rate, 1% + (14%-10%) i.e. 4%, then total 5% of the cost put to tender. iii) The amount of performance security shall be calculated on rounding of contractors offer upto two decimal places. The offer in envelop No.2 without demand draft or FDR or BG of appropriate amount of performance security shall be treated as invalid offer. iv) Demand draft/BG/FDR shall be drawn in the name of Executive Engineer, Ghodazari Canal Division Nagbhid. v) Demand draft/BG/FDR/shall be drawn from Nationalised or scheduled banks. vi) The BG/FDR shall be valid upto one month after defect liability period. Validity of demand draft shall be minimum 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally responsive, it will be rejected by the Employer, and may not subsequently be made responsive by correction or withdrawal of the non-conforming deviation or reservation. 3) On the facts in this case, it is undisputed that the bank guarantee that was furnished for Rs. 42.14 lakhs by Respondent No. 2 before us was initially furnished only for a period of six months on 12.03.2018, in response to the tender. It is common ground between the parties that the period ought to have been 40 (forty) months. The bids were opened on 06.04.2018, and on 07.04.2018, one day later, Respondent No. 2, sought to make up this deficiency by adding a period of 34 months to the bank guarantee which was valid for 6 months only. The aforesaid bid made by Respondent No. 2 was accepted initially on 03.05.2018. A Tender Evaluation Committee then evaluated all the bids on 07.07.2018, and finally, the bid of the Respondent No. 2 was accepted as it was the lowest bidder among the three bids that had been received. The bone of contention between the parties is whether it is possible for the appellant before us to condone the initial bank guarantee being given for an admittedly incorrect period of 6 months. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y at a pre-tender stage that a clarification may be obtained regarding tender conditions. Sub-clause 4 of Clause 2.15 is important because all tenderers are cautioned by this Clause that tenders containing any deviation from the contractual terms and conditions, specifications or other requirements, will be rejected as non-responsive. 7) At this stage, it is important to advert to the pre-tender meetings that took place between the Chief Engineer and prospective parties on 30.01.2018. Entry 46 of the document that is produced by the appellant reads as follows:- S.No. Provisions of Tender Modification/clarifications sought by contractor Modification/ Clarification sought by the Department 46 2.22 Performance Security: vi) The B.G./F.D.R. shall be valid upto one month after defect liability period. 2.22 Performance Security: The B.G./F.D.R s validity is upto 3 months at the time of tender submission if work is awarded this B.G./F.D.R s validity extended according to the tender condition. It should be taken after the award of work as general procedure in ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the employers right to a bank guarantee for a longer period. This being the case, since a material deviation from the terms and conditions of the tender document was made by Respondent No. 2, when it furnished a bank guarantee for only six months initially, it would be clear that such bid would have to be considered as not substantially responsive and ought to have been rejected by the employer. Clause 2.35.2 also makes it clear that such a bid would have to be rejected outrightly and may not be subsequently made responsive by correction. 11) It is important to note that the Government Resolution dated 12.04.2017, which applies to the PWD Department, has superseded the PWD Circular dated 12.02.2016 and corrigenda dated 17.03.2016 and 14.07.2016. However, so far as the tender conditions of the tender in question are concerned, Clause 2.18 is material and is set out hereunder:- Earnest Money: All tenderers shall pay entire E.M.D. the mode of payment is indicated as specified at Sr. No. 4, 6, 4 of Section IV. As per GR PWD 12.04.2017 E.M.D. shall be paid online through bank account of own by contracts, contractor shall submit the undertaking that the EMD has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any of such conditions, ordinarily again a power of relaxation may be held to be existing; (iv) the parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance with another part of tender contract, particularly when he was also not in a position to comply with all the conditions 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; 16. We also agree with the contention of Shri Raval that the writ jurisdiction cannot be utilised to make a fresh bargain between parties. 14) However, learned counsel appearing on behalf of the appellant strongly relied upon Afcons Infrastructure Ltd. v. Nagpur Metr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut instead focused on supposed contradictions made in an affidavit filed by the appellant in the High Court. Having gone through the affidavit, we find no such contradiction. It is also necessary to advert to the final relief given by the High Court. If, for the reason given by the High Court, the bid of the Respondent No. 2 had to be rejected, it cannot be understood as to how Respondent No. 2 can be brought back in the event that Respondent No. 1 does not agree to carry out the work for the lower bid amount of Respondent No. 2. For all these reasons, even though the reasoning of the Division Bench in the impugned judgment does not commend itself to us, yet, for the reasons contained in this judgment, the appeal will have to be dismissed. 18) We may record that Mr. Basant very fairly submitted before us that he will match the amount of Rs. 39.15 crores that was the bid of Respondent No. 2 before us. We record this statement and order, therefore, that the work now be performed by the Respondent No. 1 at this bid amount. The judgment of the High Court, insofar as para 8 is concerned, is set aside. 19) With these observations, the civil appeals are disposed of. - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
