The court found that the decision-making process in the tender evaluation was reasonable and acceptable, and there was no fault in the decision-making process that would require interference.

JUDGMENT :

G.S. SISTANI, J.

1. Rule D.B.

2. Pleadings are complete.

3. With the consent of parties, the writ petition is set down for today for final hearing and disposal.

4. The necessary facts, which are required to be noticed for disposal of this writ petition are that respondent No. 1 invited bids for construction of High-Speed Rail Terminal Building vide Tender No. NHSRCL/CO/SBI-HUB/2018/7. The petitioner submitted its bid in compliance with the conditions of the tender document. The procedure adopted was that, along with a technical bid, the financial bid was also to be submitted in a sealed cover, being a single stage Two-Enveloped Bidding process, by on or before 2.45 PM on 17.10.2018. As the petitioner and respondent No. 2 (L-1, successful tenderers) qualified the technical bid, the price bid was opened on 14.12.2018.

5. The main thrust of the argument of Mr. Dewan, learned senior counsel appearing for the petitioner revolves around non-submission of the Letter of Price Bid by respondent No. 2. It is the case of the petitioner that submission of Letter of Price Bid with seal and signature of the bidder is an essential condition of the tender. It is also the stand of the petitioner that it is a common case of the parties that the Letter of Price Bid was not submitted by respondent No.2. Resultantly, it is contended that the said defect in the submission of the bid, amounts to breach and non-compliance of the essential condition of tender. It is also the grievance of the petitioner that its representation informing respondent no.1 about the non-compliance by respondent No.2, has been rejected without any application of mind. The petitioner through the documents of price bid of respondent No.2 found out that the price bid of respondent No.2 was lower than that of the petitioner, hence the respondent No. 2 was awarded the Letter of Intent (LOI) of the contract. It is contended that respondent No. 2 has been awarded the LOI of the contract on the criteria of being L-1 and having submitted the lower price bid in comparison to the petitioner, who was L-2. The respondent No. 2 quoted the price of Rs.328 crores as a lump sum price while the petitioner quoted Rs.331,91,11,111/- as a lump sum. Admittedly, the price difference between the two bids is Rs.3.91 crores; and without item-wise break-up and evaluation of the price bid of respective parties, respondent No. 1 awarded the contract LOI without application of mind and without complying with the tender conditions, more particularly, conditions 38, 29 and 41 of Section 1 Part 1 of the tender document.

6. Since the submission of Mr. Dewan revolves around some of the tender conditions and on which strong reliance has been placed, we deem it appropriate to reproduce the said tender conditions. The said tender conditions, which are relied upon are extracted below:-

11.3 The Price Bid submitted by the Bidder shall comprise the following:

(a) Letter of Price Bid;

(b) completed Price Schedules, in accordance with ITB 12 and 18;

(c) alternative Price Bids, at the Bidder’s option and if permissible, in accordance with ITB 13; and

(d) any other document required in the BPS.

12.1 The Bidder shall complete the Letters of Technical Bid and Price Bid, including the appropriate Technical and Price Schedules, using the relevant forms furnished in Section IV, Bidding Forms. The forms must be completed without any alterations to the text, and no substitutes shall be accepted except as provided under 1TB 22.2. All blank spaces shall be filled in with the information requested.

34.1 Provided that a Technical Bid is substantially responsive, the Employer may waive any non-conformity in the Technical Bid that does not constitute a material deviation, reservation or omission.

34.2 Provided that a Technical Bid is substantially responsive, the Employer may request that the Bidder submit the necessary information or documentation, within a reasonable period of time, to rectify nonmaterial non-conformities in the Tec