Writ Petition No. 384 of 2013

21st January, 2013

Petitioner Counsel: Mr. J.N. Singh
Respondent Counsel: Mr. V.D. Godbharle,Mr. V.D. Sapkal,Mr. S.S. Wagh

Cases Cited:
M/s. G.J. Farnandez Vs. State of Karnataka & Ors., AIR 1990 SC 958 [Para 10]
Kanhaiya Lal Agrawal Vs. Union of India & Ors., AIR 2002 SC 2766 [Para 10]
Goldyne Technoserve Ltd. Vs. State of MP & Ors., 2011 ALL SCR 977 : AIR 2011 SC 2574 [Para 10]

JUDGMENT

A.H. JOSHI, J. :- Rule. Rule made returnable forthwith. Contesting parties have filed their affidavits, rejoinders etc. Heard finally by consent of parties.

2. Subject matter pertains to allotment of tender for the work described as Package No.1463. In the tender notice, work is described as follows :

" PACKAGE NO. MH 1463

NAME OF WORK : Construction of Bridge on SH-176 to Dadhegaon @ Ch-0/ 600,"

2. Construction of Bridge on SH-176 - Bantakali @ Ch.4/00"

3. The bidding system provided for the facility of uploading the bid/offer for any one or for all i.e. 29 jobs. Offering was to be done by uploading documents, tenders etc. on e-mail on the website of respondent Nos. 2 to 4.

4. The petitioner has participated in the bid for the work/project listed at item No. 21 in the tender notice for the work referred to above.

5. A list of the documents which are to be uploaded on the site under the title technical cover, was incorporated in internal page No.9 of the tender document. The document described as "Declaration by the Contractor on his letter head" to be furnished in the prescribed format is listed at Sr. No. VI in the said list.

6. The declaration is submitted by the petitioner in the prescribed format. A photo copy of the declaration submitted by the petitioner is placed on record at page No. 138, as annexure to the affidavit of the respondent Nos. 3 and 4. It is seen that the name of the work mentioned in the declaration reads as follows :-

"MH-1453 GHANSAWANGI DISTRICT JALNA"

7. In the scrutiny of technical bids, the bid furnished by the petitioner is rejected on the ground that package described by him in the declaration , is "MH-1453 Ghan Savangi", instead of the name of work as "MH-1463 Ambad".

8. This petition is opposed by the respondent Nos. 3 and 4 as well as by the respondent No.5 - the contractor/the only bidder.

9. The grounds on which the petition is opposed are summarized as follows :-

(a) That furnishing the declaration is in the nature of one amongst other conditions precedent.

(b) The declaration is the document on the basis of which the solemn undertaking of the contractor to reiterate certain undertakings. The work/project for which the offer is made is to be ascertained from the description of the work stated in the said undertaking. The defect in the description will render the offer defective and rather render the offer a nullity.

(c) Therefore, rejection of the tender was to be the inevitable outcome. Due to the defect in the declaration, the offer is short of compliance of the condition precedent. Hence, in fact, there was no offer by petitioner in the eye of law.

10. Both the learned Advocates Mr. Sapkal as well as Mr. Wagh, for respective respondents have placed reliance on judgments of the Honourable Supreme Court. The citations alongwith brief discussion thereon is as follows :-

[1] AIR 1990 SC 958 M/s. G.J. Farnandez v. State of Karnataka and others :-

This judgment is relied upon to urge that when documents supporting tender which were in the nature of condition precedent were not furnished by the contractor, the offer was liable to be rejected.

[2] AIR 2002 SC 2766 Kanhaiya Lal Agrawal v. Union of India and others:-

This judgment is relied upon to lend support to the submission, as observed in para. 6 of the judgment which reads thus :-

"It is settled law that when an essential condition of tender is not complied with, it is open to the person inviting tender to reject the same."

The observations made in para.6 relate to the settled law and need no further discussion.

On facts, as involved in Kanhaiya Lal's case (supra) it was a case where tender was rejected on the ground that apart from the offer made therein, the contractor had offered to give discount for punctual action. This added clause was considered by the employer to be a conditional offer. This construction of the employer was not accepted by the Honourable Supreme Court.

[3] AIR 2011 SUPREME COURT 2574 : [2011 ALL SCR 977] Goldyne Technoserve Ltd.v. State of MP and others :-

This judgment pertains to a case wherein a valid and current "ISO 9001-2000" certificate was required to be furnished by the contractor. It was urged that furnishing of said certification pertains to the basic eligibility of the person making offer, and this plea was accepted by Honourable Supreme Court.

On facts, the certificate furnished by the tenderer/contractor was a copy of the certificate of earlier (expired duration). The contractor had admitted that he had furnished old certificate and he carried a belief that latest and valid certificate could be produced at the time of signing of the final document.

This plea, however, was declined by the Honourable Apex Court.

The ratio which follows in this case is that, whenever in relation to any offer, the condition precedents to offer are not fulfilled, the offer deserves rejection. On facts, it had also revealed that the work had already progressed much ahead by the date when the petition was being considered.

11. Basic question to be decided on facts of present case is :-

(1) Whether the condition of declaration in the prescribed format free from any error, is a condition precedent ?which defective compliance has led to rejection of technical/pre-qualification bid of the petitioner was/is in the nature of failure to comply with the conditions precedent.

(2) Whether rejection of technical/pre-qualification bid of the petitioner on the ground of error in describing the title of the project work was/is in the nature of failure to comply with the condition precedent ?

12. Therefore, this court has to scrutinize and decide on facts as to whether the description of the name of project/work/job to be done in space meant to be filled by subscribing/writing the title of project, in the format of declaration is in the nature of condition precedent and whether non-compliance thereof would render the offer non est.

13. The answer/finding on the questions formulated by us in foregoing paragraph shall decide the fate of the case.

14. As we see, it is a case of :-

(A) e-tendering

(B) Documents have to be uploaded in relation to a particular work which is identified by its package number as well as brief description of the work, on the network of the respondent.

15. The offer document as seen from record contains the description as is apparent from page 27 and is not disputed, which reads as follows :-

"Construction of Bridge and their maintenance for 5 years under Pradhan Mantri Gram Sadak Yojana.

(Construction of Bridges over PMGSY Roads in Block Jalna

Package No. MH 1463

Construction of Bridge on SH-176 to Dadhegaon @ Ch-0/ 600,"

2. Construction of Bridge on SH-176 - Balantakali @ Ch.4/00"

16. On earlier occasion, when petition was heard, we had directed the respondent Nos. 3 and 4 to clarify on oath, on the following point :-

"Do all other documents contained in the tender, (excluding the defective declaration submitted by petitioner), describe the work for which offer is made to be 'MH-1463 block Ambad"

17. The affidavit in reply filed by the respondent No.3 in response to foregoing question contains the following statement :-

"I say and submit that all other documents contained in the technical bid (excluding the defective declaration submitted by the petitioner) do not described the work for which officer is made to be "MH-1463, Block Ambad".

18. Today, in the midst of oral submissions, we have further asked learned Advocate Mr. Sapkal to clarify certain points :-

Learned Advocate Mr. Sapkal has taken instructions from the respondent Nos. 3 and 4 as to the answer of the queries made by this court, and thereafter, he has replied those queries.

The questions put by us and reply received, are as follows :-

Question : [a] whether in the documents other than declaration format, there was any room and/or occasion for the contractor to specify the nature of work ?

Reply : There is no room occasion or space left in the documents to be accompanying the offer except the declaration form, to describe or narrate the title of the work.

Question : [b] Whether whenever the bids done on net, bids pertaining to the work subject matter, namely, MH-14 - 1463 (Ambad) is to be opened, petitioner's bid could be seen.

Reply : Since bid was to be furnished electronically, the petitioner has furnished bid for tender/contract work MH-1463 Block Ambad.

19. After oral enquiry and oral reply, we have dictated our question and dictated the reply as received, and learned Advocate Mr. Sapkal confirms before us that the answers are correctly recorded.

20. The condition prescribed in the tender require that the declaration format is to be prepared on letter head of the contractor and is to be scanned and uploaded, alongwith all other documents. Hence, it was to be part and parcel of the document forming part of technical/pre-qualification bid.

21. It is an admitted fact that the scanned copy of declaration format which was uploaded was uploaded as a part and parcel of set of documents forming part of the petitioner's offer for the work project 1463 Ambad only.

22. It is not disputed even by respondent Nos. 3 and 4 that the offer uploaded by the petitioner pertained and formed part of e-communication for or in the file meant for the "package 1463 Ambad"

23. From all documents furnished/uploaded by the petitioner only conclusion which compulsorily emerges is that all other documents pertained and the offer was for the package 1463 Ambad only.

24. It will have to be seen whether the deficiency or error in mentioning the work/package in the declaration format, shall vitiate the fact that uploading was done for project 1463 Ambad only.

25. Apart from the deficiency in the declaration, the petitioner's offer is found to be in order and no other grounds are put forward as additional grounds for declining the technical bid.

26. In the facts and circumstances of the case, error in description of work is a ministerial matter. Said error ought not be regarded as failure of the petitioner to comply with a technical pre-qualification.

27. Conditions to be complied as matters of pre-qualification consist of production of evidence of past experience, capacity to invest, mobilize and/or technical know-how etc. Any defect or deficiency in relation to these matters or as regards any other conditions precedent are not noted by the committee as is evident from the minutes of scrutiny. It is not shown by the respondents as to how error in describing the title of project would render a technical pre-qualification bid non-est. It is not shown by the respondents as to how defect in the declaration constitutes to be a factor relating to qualification and/or technical work and proves lack of eligibility of the petitioner, except bare argument.

28. In the result, rejection though is apparently by sticking to the working and terminology employed in the terms and conditions of the tender, it is adherence to the letter than to spirit. The question is an outcome of the hyper-technical approach to the scrutiny of technical or pre-qualification bid. It cannot be lost sight that due to rejection of petitioner's technical pre-qualification bid, now only one contractor remains in the fray. Such technical approach may result in respecting the literal aspect than the object, real intent and the spirit. The need of fair competition is given a go-bye, by necessary implication.

29. The acts of respondents tend to do lifeless adjudication than justice expected from executive. Respondents' conduct is far away and dis-trancing themselves from being just which really is the genesis of justice.

30. We are of the considered view that the error committed by petitioner is of such nature that it does not go to hit at the root of the qualification and the eligibility of the petitioner. Petitioner's technical bid was, therefore, liable to be accepted.

31. We, therefore, make Rule absolute and direct that the petitioner's technical bid be accepted and his price bid be opened and further decision would be taken by the respondent Nos. 1 to 4, in accordance with law.

32. We direct parties to bear own costs.

33. At this stage, learned Advocate Shri Wagh, appearing for the respondent No. 5 prays for stay to this judgment for enabling the respondent No.5 to approach the Honourable Supreme Court.

34. We find that considering the nature of contest and that execution of the work of public importance is involved, the view of the respondent Nos. 3 and 4 who are the executing agency be taken into consideration. Therefore, we have called upon learned Advocate Mr. Sapkal and enquired about the point of view of the respondent Nos. 3 and 4. Learned Advocate Mr. Sapkal has taken instructions and states that the respondents do subscribe the prayer of the respondent No.5 for staying this order for four weeks.

35. We, therefore, direct as follows:-

(a) This order shall not take effect for a period of four weeks from today.

(b) Interim directions given by this court, directing that the work order should not be issued, shall remain in operation till that date.

(c) Certified copy expedited.

Petition allowed.