JUDGMENT

G.S. Sistani, J.(Oral)

CM. APPL 45130/2019 (Exemption)

1. Exemption allowed, subject to all just exceptions.

2. The application stands disposed of.

W.P.(C) 10916/2019

3. Since we have heard the learned counsels for the parties at the admission stage itself, with the consent of the parties, the writ petition is set down for final hearing and disposal.

4. Brief facts which are required to be noticed for the disposal of the present writ petition are that the respondent invited a tender on 19.07.2019 for Construction of Residential Buildings including the Podium for Department of CGST and Central Excise at Sector-7, Kharghar, Navi Mumbai on Design, Engineering, Procurement and Construction (EPC) basis through NIT No.NBCC/CPG/CGST & Central Excise/Navi Mumbai/2019/217. The petitioner participated in the said tender proceedings.

5. A short controversy arises in this case on account of what is termed as `an inadvertent mistake' on the part of the petitioner in submitting an unconditional letter of acceptance (LoA) of the tender conditions as per Annexure-II of the General Conditions of Contract (GCC) instead of submitting the same as per the format of Special Conditions of Contract (SCC) as required.

6. The technical bids were opened by the respondent on 17.09.2019. On 09.10.2019, the petitioner was informed that the bid of the petitioner had been disqualified on the grounds

"Bidder has been disqualified since he has not submitted the Letter of Acceptance of tender conditions i.e. Annexure-II in the prescribed format as per NIT conditions".

7. The very next day the petitioner replied to e-mail dated 09.10.2019, clarifying its reasons for submission of letter of acceptance in the format provided in GCC and not SCC. The petitioner also informed the respondent that there were only minor differences between the two formats; and the disqualification of the petitioner was therefore unlawful. The petitioner also claims to have enclosed another LoA in the correct SCC format along with this communication. Letter dated 09.10.2019, by which the petitioner was informed about its disqualification, has led to the filing of the present petition.

8. Mr. Dayal, learned counsel for the petitioner has strongly urged before us that there is no material difference between the letter of acceptance as per GCC format and the one as per SCC format. It is submitted that most of the columns are almost identical and although the LoA in SCC format may have been essential, but since the difference between the LoA in the GCC format and SCC format is inconsequential, the bid of the petitioner ought not to have been declared disqualified or non-responsive.

9. Further the petitioner had given a fresh LoA as per the correct format and submission of an LoA was merely ancillary to achieving the main objective. It is also highlighted before us that the petitioner is the lowest tenderer; and that the respondent, while opening the financial bid, should have overlooked the inadvertent mistake and accept the petitioner's bid as it would be in public interest.

10. In furtherance of the submissions made, learned counsel for the petitioner places reliance on paras 47 and 51 of the judgment in the case of Selex Sistemi Integrati v. Union of India, reported at 2011 SCC OnLine Del 4210, wherein the Supreme Court has observed that insubstantial errors would not lead to the bid being treated as non-responsive. Further, interference of courts is only warranted in cases of complete arbitrariness on part of the authorities; and public interest lies in ensuring procurement is made at the lowest possible cost to the State exchequer. Reliance is also placed on paragraphs 10, 11 and 12 of the judgment in the case of Om Prakash Sharma v. Ramesh Chand Prashar and Others, reported at (2016) 12 SCC 632 to the same effect.

11. Ms. Shilpi Choudhary, learned counsel for the respondent has opposed this petition. She submits that the tender in question was called in E