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High Court Of Delhi
GAMMON INDIA LIMITED - Appellant
Versus
UNION OF INDIA - Respondent
Civil 6636 of 2002
Decided On : 11/11/2002
TENDER - CONDITIONS - RELAXATION - ARBITRARINESS - PUBLIC INTEREST - JUDICIAL REVIEW - The tender conditions permitted the tenderers to submit deviations/assumptions. Therefore, merely because respondents 2 and 3 had included certain assumptions/deviations in the covering letters would not by itself make these bids as non-responsive. In pre-tender meeting, on queries raised by the bidders, it was clarified that only alternate bids would be rejected. Thus, if certain assumptions or deviations were stated in the covering letters, these would not make the bids substantially non-responsive per se. The language of these assumptions (already reproduced above) would make it abundantly clear that certain “requests” were made by these tenderers in respect of certain clauses. Thus while submitting firm bids, the respondents 2 and 3 wanted respondent no. 1 to consider some of the tender clauses. They did not submit the tender on the “conditions” that their bids were submitted with the “conditions” mentioned in covering letters. These were merely requests and it was for the. respondent no. 1 to accept or not to accept all or any of those requests. No doubt in respect of some of the “assumptions” clarifications had already been issued in the pre-tender meeting. However, if the respondents 2 and 3 still reiterated these “requests” that would not make the same as conditional or alternate bids.
Fact of the Case:
The petitioner, a bidder in a tender process for the construction of a Ship Lift civil Works for the Project Sea Bird of the Indian Navy, challenged the decision of the respondent, the Government of India, to allow two other bidders to withdraw certain assumptions and deviations stated in their covering letters before opening the bids. The petitioner contended that these assumptions and deviations made the bids of the other bidders conditional and non-responsive, and that the respondent had no authority to allow their withdrawal.
Finding of the Court:
The court held that the assumptions and deviations stated in the covering letters of the other bidders were not conditions, but rather requests for the respondent to consider certain changes to the tender conditions. The court also held that the respondent had the authority to allow the withdrawal of these assumptions and deviations, as it was in the best interest of the public to ensure that all bids were evaluated on an equal footing. The court further held that the petitioner had not suffered any prejudice as a result of the respondent's decision, as the bids of the other bidders were still subject to evaluation.
Issues: 1. Whether the assumptions and deviations stated in the covering letters of the other bidders made their bids conditional and non-responsive? 2. Whether the respondent had the authority to allow the withdrawal of these assumptions and deviations? 3. Whether the petitioner had suffered any prejudice as a result of the respondent's decision?
Ratio Decidendi: 1. The court held that the assumptions and deviations stated in the covering letters of the other bidders were not conditions, but rather requests for the respondent to consider certain changes to the tender conditions. The court reasoned that the language of the assumptions and deviations made it clear that they were not intended to be conditions, and that the respondent had the right to accept or reject them. 2. The court held that the respondent had the authority to allow the withdrawal of these assumptions and deviations, as it was in the best interest of the public to ensure that all bids were evaluated on an equal footing. The court reasoned that the respondent had the right to relax or waive any of the tender conditions, provided that it did so in a fair and non-discriminatory manner. 3. The court held that the petitioner had not suffered any prejudice as a result of the respondent's decision, as the bids of the other bidders were still subject to evaluation. The court reasoned that the petitioner had not been deprived of any opportunity to compete for the contract, and that it had not suffered any financial loss as a result of the respondent's decision.
Final Decision: The court dismissed the petition, holding that the respondent had acted fairly and reasonably in allowing the other bidders to withdraw their assumptions and deviations, and that the petitioner had not suffered any prejudice as a result of the respondent's decision.
( 1 ) VIDE NIT dated 14. 12. 2001 respondent No. l i. e. the government of India, Ministry of Defence through the director General, Project Sea Bird invited bids for pre-qualification for the construction of Ship Lift civil Works for the Project Sea Bird of the Indian Navy at the Karwar Port situated in Karnataka. Four parties submitted their tenders which included the petitioner, respondents 2 and 3 as well as M/s. AFCONS infrastructure Ltd. . Pre-bid meeting was convened on 2nd and 3rd July,20o2 which was attended by all the four bidders. Many points and queries raised by the bidders were clarified in this meeting. Minutes thereof were also recorded. Last date for submitting the tenders was 20. 9. 2002. The tenders were to be submitted before 1100 hrs on that date and were to be opened by the respondent no. 1 at 1130 hrs on the same day. As already pointed out above, aforesaid four parties submitted their bids which were opened at scheduled time in alphabetical order. Tender of AFCONS infrastructure Ltd was opened first, followed by the tenders of the petitioner, respondent no. 2 and respondent no. 3. The price quoted by respondent no. 3 was found to be the lowest. A Record Form recording opening of these tenders was filled wherein price quoted by the bidders were also mentioned and it was signed by the parties; This Record Form contained the following endorsement:
"certified that above four in no. tenders and no other tenders were received by 1130 hrs on 20 Sep 2002 and that these were opened in our presence at 1130 hrs on 20 Sep 2002 and no departure from the authorised procedure has occurred in the manner o f receipt of the above tenders
( 2 ) THEREAFTER all the four parties signed the same as witnesses. Signatures of the officers of respondent no. l also appeared therein.
( 3 ) AT this stage it is appropriate to point out that bids of respondents 2 and 3 had covering letters which, inter alia, included certain points described by respondent no. 2 as "assumptions" and by respondent no. 3 as "deviations/exceptions and assumptions". Before opening the tenders of respondents 2 and 3, the chairman of the Tendering Panel of the first respondent desired that the same be withdrawn by these respondents before tender is opened. Both respondents 2 and 3 agreed to the same and made endorsement to this effect on the same covering letter. They also agreed to forward formal letter withdrawing the stated assumptions. Thereafter, their tenders were opened. The minutes of tender were recorded and the factum of the withdrawal of list of assumptions in respect of respondent no. 2 is stated in these minutes in the following manner:
"however , it was observed that the tender covering letter included a list of assumptions, which have been used for deriving the quoted price. The Chairman informed the firm s representative that the price bid is required to be unconditional for correct and fair comparison and award of the contract to the lowest bidder. The assumptions mentioned in the tender document therefore, need to be withdrawn before opening of the tender. Mr. M. A. Ashok, the firm s representative agreed to withdraw the stated assumptions and made an endorsement to this effect on the same covering letter withdrawing all the conditions. He also agreed to forward a formal letter withdrawing the stated assumptions, signed by the power of attorney holder, on return. Only then the committee with the consent of other bidders decided to open the tender schedules"
( 4 ) ALMOST identical statement is made while recording the minutes relating to opening of bid of respondent no. 3. Thereafter, as noted above, the Record Form and certification thereon was signed by all concerned.
( 5 ) HOWEVER, on the next date i. e. 21st september ,2002, petitioner no. 1 sent fax lodging its protest in the manner respondents 2 and 3 were allowed to withdraw the said "assumptions" stating that these assumptions were nothing but conditions attached to their bids
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