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IN THE HIGH COURT OF JUDICATURE AT PATNA
RAJEEV RANJAN PRASAD, J.
Larsen and Toubro Ltd. having its registered office at L and T House - Petitioners
Versus
SJVN Thermal (P) Ltd. - Respondents
Civil Writ Jurisdiction Case No.4681 of 2019
Decided On : 30 -04-2019
Commercial Contract – Principle of Business Efficacy – Business efficacy test should be applied only in cases where term that is sought to be read as implied is such which could have been clearly intended by parties at the time of making of agreement. (Para 59)
Government Contract – Tender – Extension of time for submission of bids – Respondent no.4 in this case had got itself registered online well before deadline for submission of bids – Employer had power to extend deadline for submission of bids – Employer has got power to come out with subsequent communication – Deadline for bid submission may be amended by a subsequent communication issued by employer after expiry of deadline – Once by way of a subsequent communication issued by employer a fresh deadline for submission of bid is communicated, earlier deadline gets extended as it gets a new lease of life – Petitioner has chosen to participate in tender knowing fully well stipulations present in bid data sheet – By way of subsequent communication if employer has provided for a power to extend deadline for submission of bids by amending bid documents word 'extension' must be interpreted harmoniously to give effect to all other clauses – Employer in present case was acting well within conditions present in tender documents in exercising its power to extend deadline for submission of bids by issuing a subsequent communication – 'Penta Test' is not satisfied in this case – Petitioner is not able to make out a case of prejudice to Petitioner – Writ application dismissed. (Paras 61, 67, 69, 70, 75, 76, 77 and 78)
Constitution of India – Article 226 – Government Contract – Tender – Scope of judicial review noticed. (Paras 87 to 100)
Cases Referred :
Nabha Power Limited (NPL) vs. Punjab State Power Corporation Limited (PSPCL), (2018) 11 SCC 508; Provash Chandra Dalui vs. Biswanath Banerjee, (1989)1 SCC 487; Bharat Petroleum Corporation Ltd. vs. N.R. Vairamani, (2004) 8 SCC 579; Tata Cellular vs. Union of India, (1994) 6 SCC 651; Raunaq International Ltd. vs. I.V.R. Construction Ltd., (1999) 1 SCC 492; Raunaq International Ltd. vs. IVR Construction Ltd., (1999) 1 SCC 492; Air India Ltd. vs. Cochin International Airport Ltd., (2000) 2 SCC 617; Michigan Rubber (India) Ltd. vs. State of Karnataka, (2012) 8 SCC 216; Union of India vs. International Trading Company, (2003) 5 SCC 437; Jagdish Mandal vs. State of Orissa, (2007) 14 SCC 517; Maa Binda Express Carrier vs. North-East Frontier Railway, 2014 (1) BLJ 54 (SC) : (2014) 3 SCC 760; Meerut Development Authority vs. Association of Management Studies, (2009) 6 SCC 171; Central Coalfields Limited vs. SLL-SML (Joint Venture Consortium), (2016) 8 SCC 622; G.J. Fernandez. vs. State of Karnataka, (1990) 2 SCC 488; Poddar Steel Corporation V. Ganesh Engineering Works, (1991) 3 SCC 273; State of Jharkhand vs. CWE-Soma Consortium, (2016)14 SCC 172; Rajasthan Housing Board vs. G.S. Investments, (2007) 1 SCC 477; U.P. Avas Evam Vikas Parishad vs. Om Prakash Sharma, (2013) 5 SCC 182; Caretel Infotech Ltd. vs. HPCL, 2019 SCC Online SC 494 – Relied.
Ramana Dayaram Shetty vs. International Airport Authority of India, (1979) 3 SCC 489 – Followed.
G.K. Transport Company vs. Western Coalfield Ltd. (2014) SCC Online Bom.1030; Maharashtra Housing Development Authority vs. Shapoorji Pallonji & Co. Pvt. Ltd. (2018) 3 SCC 13 (para 9) = AIR 2018 SC 945 – Distinguished.
G.K. Transport Company vs. Western Coalfield Ltd., (2014) SCC Online Bom. 1030 ; Mahindra Sanyo Special Steel Private Limited vs. Union of India, decided on 15th November, 2018; Tata Cellular Limited vs. Union of India, (AIR 1996 SC 11); Sterling Computers vs. M& N Publications Limited, (AIR 1996 SC 51); Reliance Energy Ltd. vs. Maharashtra State Road Development Corporation Ltd., (2007) 8 SCC 1; Sorath Builders vs. Shreejikrupa Buildcon Limited, (2009) 11 SCC 9; W.B. SEB vs. Patel Engineering Company Ltd., (2001) 2 SCC 451; Jagdish Mandal vs. State of Orissa, (2007) 14 SCC 517; Michigan Rubber (India) Limited vs. State of Karnataka, (2012) 8 SCC 216; B.P. Refinery (Westernport) Proprietary Ltd. vs. Shire of Hastings, 1977 UKPC 13: (1977) 180 CLR 266 (Aus); Central Coalfields Limited vs. SLL-SML, (2016) 8 SCC 622; Poddar Steel Coporation vs. Ganesh Engineering Works, (1991) 3 SCC 273; State of Jharkhand vs. CWE- Soma Consortium, (2016) 14 SCC 172; Laxmikant vs. Satyawan, (1196) 4 SCC 208, Rajasthan Housing Board vs. G.S. Investments, (2007) 1 SCC 477; U.P. Awas Evam Vikash Parishad vs. OM Prakash Sharma, (2013) 5 SCC 182; Tata Cellular vs. Union of India, (1994) 6 SCC 651; Associated Provincial Picture House Ltd. vs. Wednesburry Corporation, (1948) 1 KB 223 = (1947) 2 ALL ER 680(CA); Afcons Infrastructure Limited vs. Nagpur Metro Rail Corporation Limited (2016) 16 SCC 818 – Referred.
CAV JUDGMENT :
Petitioner is one of the bidders.
2. This writ application is seeking to challenge the decision of the respondent no.1 to 3 (hereinafter referred to as ‘the employer’ or ‘the respondent no.1 Company’) whereby the respondent no.1 Company has extended the prescribed date and time for submission of bids as mentioned in the Invitation for Bidders (in short ‘IFB’). The application goes on to say that if the respondent no.4 could not submit its bids by prescribed time in the IFB read with clause 6.1 of the Instruction to Bidders (‘ITB’) and the time lapsed, the respondent nos.1 Company could not have extended the time and the extension is nothing but a favour shown to accommodate the respondent no.4. The legality and validity of Amendment No. ‘24’ and Amendment No. ‘25’ as contained in Annexure- ‘5’ and ‘6’ respectively to the writ application have been questioned even before opening of the technical bid.
3. Learned senior counsel for the parties have argued the matter at length and this Court acknowledges their assistance rendered to this Court.
Brief facts of the case
4. The respondent no.1 is a wholly owned subsidiary of SJVN Ltd. which in turn is a joint venture of the Government of India and Government of Himachal Pradesh. The respondent no.1- Company came out with an Invitation for Bid (IFB) No.STPL/BTPP/P&C/EPC-01/2018-878 dated 22.08.2018 for Engineering Procurement and Construction (EPC) Package for Buxar Thermal Power Project (2x660 MW). Initially as per the bid documents the date fixed for submission/uploading the bid documents was 10.10.2018 at 14.00 Hrs.(2.00 PM). The bid document, the relevant part of which has been brought on record with the supplementary affidavit of the petitioner as Annexure-11, would show that it is contained in seven volumes. Volume-I deals with Conditions of Contract (Commercial and General). Volume-I consists of six Sections. Section I is called Invitation for Bids (IFB), Section II is the Instructions to Bidders (ITB), Section III is the Bid Data Sheet (BDS), Section IV lays down the General Conditions of Contract (GCC), Section V provides Special Conditions of Contract (SCC) and Section VI prescribes the Forms and Procedures (FP).
5. In terms of Clause 6.1 of the ITB, respondent no.1- Company amended the original date of submission of bid on various occasions. It is an admitted position that all those amendments prior to impugned amendments were effected before expiry of the time prescribed in the original bid document as also before expiry of time fixed in the subsequent amendments. It is also an admitted position that so far Annexure- ‘5’ and ‘6’ which are the two amendments under challenge by which the time for submission of bid on 05.03.2019 at 13.00 Hrs. was extended to 17.00 Hrs. (IST) on 05.03.2019 and then the date and time for submission of the bids were further extended from 05.03.2019 to 08.03.2019 at 13.00 Hrs. (IST). These extensions were done after expiry of prescribed time i.e. 05.03.2019 at 13.00 Hrs.
6. The petitioner had raised its objection to the extension of time after expiry of the last amended time. Annexure-8 series are copies of the letters written by the petitioner to respondent no.1-Company raising it’s protest on the ground that any extension of time after closure of scheduled bids time violates the tender norms and is against the tender provisions specified in Clause 16.4 of the ITB.
7. It is also on record that pursuant to the extension of time the Bharat Heavy Electrical Limited, a Public Sector Undertaking (respondent no.4) has submitted its bids. The participation of respondent no.4 in the given manner is not acceptable to the petitioner, hence the present writ application.
8. In order to appreciate the rival submissions, this Court, while hearing the writ application on 02.04.2019, thought it just and proper to implead the service provider in the case i.e. M/s E-Procurement Technologies Limited as party respondent no.5. The background in which th
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