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2019 Supreme(Del) 1094
IN THE HIGH COURT OF DELHI AT NEW DELHI
Vibhu Bakhru, J.
S.P. Singla Constructions Private Limited And Another - Appellants
Vs.
Rail Vikas Nigam Limited - Respondent
Writ Petition (Civil) No. 2484 of 2019, Civil Miscellaneous No. 11553 of 2019, 11554 of 2019
Decided On : 12-03-2019
Akhil Sibal, Adv., Anirudh Wadhwa, Adv., Pradeep Chhindra, Adv., Parinay Chhindra, Adv., Parinay Vasandani, Adv., Bhargav Thali, Adv., Udit Seth, Adv.
A bid submitted after the specified deadline is not considered responsive, and the respondent is obligated to return it unopened to the petitioner.
Headnote:
Tender Bid - Construction of Bridge - Clauses 22, 23, 29, 30 - The court discussed the tender documents' clauses 22, 23, 29, and 30, which defined the deadline for bid submission, rejection of late bids, determination of responsiveness, and waiver of nonconformities. The court emphasized that a bid submitted after the deadline is not considered a bid at all, and therefore, the question of responsiveness does not arise. The court upheld the respondent's decision not to open the late bid and highlighted the respondent's obligation to return the bid unopened to the petitioner. The court also noted that if an inadequate number of competitive bids are received, the respondent has the discretion to call for fresh tenders.
Fact of the Case:
The petitioners sought a writ to open and consider their bid for the construction of a bridge, which was submitted after the deadline specified in the tender documents.
Finding of the Court:
The court found no infirmity with the respondent's decision not to open the late bid and dismissed the petition.
Issues: The main issue was the consideration of a bid submitted after the specified deadline and the adequacy of the number of competitive bids received.
Ratio Decidendi: The court held that a bid submitted after the deadline is not considered a bid at all, and the respondent is obligated to return it unopened to the petitioner. Additionally, the respondent has the discretion to call for fresh tenders if an inadequate number of competitive bids are received.
Final Decision: The petition was dismissed, and all pending applications were disposed of.
Vibhu Bakhru, J.
The petitioners have filed the present petition, inter alia, praying as under:-
"Issue a Writ of Mandamus or any other appropriate writ, order or direction to the Respondent, to open and consider the bid submitted by the Petitioner in response to the Notice Inviting Tender dated 31.10.2018 issued by the Respondent for construction of 24x76.20 M SPAN Important Bridge over river Ganga at Allahabad between Jhusi and Daraganj Station of NER in the State of Uttar Pradesh, India, on merits and in accordance with law;"
2. The controversy in the present petition relates to not opening of petitioner no.1's bid for construction of 24 x 76.20 M SPAN Bridge over river Ganga at Allahabad between Jhusi and Daraganj Station of NER, in the State of Uttar Pradesh. Admittedly, the deadline for submission of the bid was 21.12.2018 at 11.00 hours. The said time was subsequently extended on three occasions. First, it was extended to 22.01.2019; second, it was extended to 22.02.2019; and finally it was extended to 06.03.2019.
3. There is no dispute that the bids were to be submitted before 11.00 hours on 06.03.2019. Admittedly, there was some delay in petitioner no.1 submitting its bid, which was submitted at 11.04 hours.
4. The learned counsel appearing for the respondent points out that the bids were to be dropped in a tender box, which was sealed at 11.00 hours on 06.03.2019 (the deadline so fixed). The petitioner had failed to drop its tender in the said box and, therefore, furnished it to the officers of the respondent at 11.04 hours.
5. Mr Sibal, the learned Senior Counsel appearing for the petitioners has contended that notwithstanding that the bid was submitted beyond the deadline, it could be considered as the responsive bid in terms of clause 29.2 and 30 of the tender documents. He submits that the examination of the bid would reveal that there is no material irregularity, and therefore the respondents should have exercised its discretion to accept the said bid.
6. Before proceeding further, it would be relevant to refer to clauses 22, 23, 29 and 30 of the tender documents which read as under:-
"22. Deadline for Submission of Bids
22.1 Bids must be received by the Employer at the address and not later than the date and time indicated in the BDS.
22.2 The Employer may, at its discretion, extend the deadline for the submission of bids by amending the Bidding Document in accordance with ITB 8, in which case all rights and obligations of the Employer and Bidders previously subject to the deadline shall thereafter be subject to the deadline as extended.
Late Bids
23.1 The Employer shall not consider any bid that arrives after the deadline for submission of bids, in accordance with ITB 22. Any bid received by the Employer after the deadline for submission of bids shall be declared late, rejected, and returned unopened to the Bidder.
29. Determination of Responsiveness
29.1 The Employer's determination of a bid's responsiveness is to be based on the contents of the bid itself, as defined in ITB 11.
29.2 A substantially responsive bid is one that meets the requirements of the Bidding Document without material deviation, reservation, or omission. A material deviation, reservation, or omission is one that,
(a) if accepted, would:
(i) affect in any substantial way the scope, quality, or
performance of the Works specified in the Contract; or
(ii) limit in any substantial way, inconsistent with the Bidding Document, the Employer's rights or the Bidder's obligations under the proposed Contract; or
(b) if rectified, would unfairly affect the competitive position of other Bidders presenting substantially responsive bids.
29.3 The Employer shall examine the technical aspects of the bid submitted in accordance with ITB 16, Technical Bid, in particular, to confirm that all requirements of Section 5 (Works Requirements) have been met without any material deviation or reservation.
29.4 If a bid is not substantially responsive to the requirements of the B
