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2020 Supreme(Pat) 351
IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR, J.
M/S OMEGA ELEVATORS - PETITIONERS
Versus
The Union of India through the Secretary, Ministry of Railways – Respondents
Civil Writ Jurisdiction Case No.5607 of 2020
Decided On : 04-05-2020
For the Petitioners:Mr. Bhargav Hasurkar, Advocate Mr. Nikhil Kumar Agrawal, Advocate Ms. Aditi Hansaria, Advocate
For the Respondents:Mr. S.D. Sanjay, ASG Mr. Ramadhar Shekhar, Advocate
Headnote:
Government Contract – E-Tender Notice/Detailed Notice inviting tender – Cancellation of previous tender for same work in which petitioner/company was declared to be lowest tenderer – One of eligibility conditions for tender was submission of UAN number of workers of tenderer along with original offer which requirement has been made mandatory in clear and unambiguous terms – UAN number is referable to workers of tenderer and there cannot be any ambiguity with respect to its meaning – Bidders participating in a tender notice have no other right except right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tenders in a transparent manner and free from hidden agenda – Terms and conditions of tender cannot be challenged and no bidder will have authority to insist for any further negotiations unless terms and conditions of notice so provides – So long as bid has not been accepted, highest or lowest bidder acquires no vested right to have contract concluded in his favour – Authority is well within its rights to reject a bid without assigning any reason thereof – Petitioner has not been proscribed from participating in fresh tender – Writ petition dismissed. (Paras 15, 17 to 22)
Interpretation of Statute – Contra proferentem rule of construction can be used only when there is an ambiguity before a court and because of which it is unable to decide by resorting to ordinary principles of interpretation as to which of two meanings of a word employed is correct one – Rule cannot be used to create ambiguity. (Para 16)
ORAL JUDGMENT :
Heard Mr. Bhargav Hasurkar and Mr. Nikhil Kumar Agrawal, learned Advocates for the petitioner and Mr. S.D. Sanjay, learned Additional Solicitor General assisted by Mr. Ramadhar Shekhar, Advocate, for the respondents.
2. This writ petition has been filed against the decision of the respondents for setting aside the E-Tender Notice/Detailed Notice inviting tender (hereinafter referred to as ‘DNIT’) L-OpenPatna 19-20-33 dated 05.03.2020 issued under the signature of respondent no. 4 on the ground that the same has been issued illegally by cancelling the previous tender for the same work in which the petitioner/company was declared to be the lowest tenderer. It may be noted that the petitioner is a manufacturer and supplier of lifts/escalators and had approached this Court earlier vide CWJC No. 25129 of 2019 seeking a direction to the respondents, especially respondent no. 4, to allow the petitioner to participate in the tender as in that tender document, there was a restrictive clause which permitted only the named companies manufacturing lifts, to participate.
3. Pursuant to an order passed in the aforesaid petition on 19.12.2019, the petitioner was permitted to participate in the tender proceedings and was declared L-1.
4. It has been submitted that the documents furnished by the petitioner were complete in all respects including the requirement of submitting the document indicating its registration with the Employees Provident Fund Organization and the PF Code provided by the EPFO as well as the Udyog Aadhar Number.
5. It has been urged that the petitioner participated in the tender process in which it was declared to be the lowest bidder (L- 1) by way of Tabulation Statement of Financial bids which was published online on 26.12.2019. Thereafter, when no communication was made by the respondents, the authorized representative of the petitioner contacted the respondent no. 4 with a request to execute a letter of award and enter into an agreement so that the work could begin. It was only telephonically informed to the representative of the petitioner on 08.04.2020 by respondent no. 4 that the tender in question (Tender Notice No. L-Open-19- 20-24 dated 22.11.2019) has been cancelled and a fresh tender for the same work has been issued on 05.03.2020.
6. The petitioner has challenged the aforesaid decision viz. of cancellation of the earlier tender and issuance of a fresh tender for the same work on the ground that no reason has been assigned for the same and that such decision is palpably arbitrary, illegal, perverse and therefore unsustainable in the eyes of law.
7. As opposed to the aforesaid contentions, Mr. S.D. Sanjay, learned ASG has submitted that the petitioner, though, is registered with Employees Provident Fund Organization and had also submitted the PF Code along with the tender documents but it did not submit the Universal Account Number (UAN) of the workers along with its offer, which was a mandatory requirement.
8. Mr. Sanjay has referred to the item break-up of the eligibility conditions in the Special Financial Criteria which is being extracted here for ready reference:
Special Financial
| S. No.
| Description
| Confirmation Required
| Remarks Allowed
| Documents Uploading
|
| 1
| Contractor should have to be registered with Employee Provident Fund Organization (EPFO). It is mandatory for contractor to submit PF code provided by EPFO with their tender offer. Also each contractor has to submit “UAN” of their worker with their offer and have to mention in tender document. It is mandatory. Otherwise offer will not be considered for further action and your offer will be summarily rejected. | No
| No
| Allowed (Mandatory)
|
(emphasis provided)
9. It has been pointed that only two bidders submitted their E-Tender and the tender committee, on evaluati
