A bid found technically non-responsive cannot be revived solely based on curable defects, as meeting minimum technical capacity is paramount for eligibility in tender processes.

JUDGMENT

Vipin Sanghi, J. (ORAL)

W.P.(C) 4616/2021 & CM APPLs. 14129/2021, 16537/2021-(STAY)

We have heard the learned counsels for the parties and proceed to dispose of the same at the admission stage.

1. This petition was taken up by the Court for the first time on 13.04.2021. The following order was passed by the Court:

"1. The limited grievance of the petitioner is that its bid has been rejected as "technically non-responsive" on the ground that the cost for RFP (i.e., request for proposal) process was short by Rs.10,000/-.

2. According to the learned counsel for the petitioner, in terms of the notice inviting tender (in short "NIT") dated 15.01.2021, the petitioner, as required, made deposit on 05.03.2021, towards costs of the RFP process amounting to Rs. 80,000/-. It is stated that the respondent/NHAI extended the date of submission of the bid twice. The extensions enabled submission of bids in the first instance by 08.03.2021, and thereafter, by 11.03.2021.

2.1. These extensions were notified by the respondent/NHAI on 23.02.2021 and 04.03.2021.

2.2. It is the contention of the petitioner that, since the stipulated cost of the project was enhanced beyond the original estimated cost of Rs.789.29 crores, the cost of the RFP process was also enhanced by Rs.10,000/-. It is also the petitioner's contention that, although, the enhancement of the costs of the RFP process was notified on 04.03.2021, the petitioner was unaware of the said enhancement.

2.3 As per the counsel for the petitioner, the cost of the RFP process, based on NIT dated 15.01.2021 read with notice dated 23.02.2021, amounting to Rs.80,000/- was accepted by the portal set up by the respondent/NHAI.

2.4 Furthermore, the counsel for the petitioner says that the deficiency was brought to the petitioner's notice only on 23.03.2021. Counsel for the petitioner says that the deficit cost of Rs. 10,000/- towards RFP process was deposited on 25.03.2021.

3. It is in these circumstances, that the petitioner has impugned the order dated 07.04.2021, which, as noticed hereinabove, declared the petitioner's bid "technically non-responsive."

4. Counsel for the petitioner submits that the said deficiency cannot be the basis for declaring the petitioner's bid as "technically non- responsive" as it was a curable defect. In support of this plea, counsel for the petitioner relies upon the judgment of the Supreme Court rendered in Poddar Steel Corporation vs Ganesh Engineering Works And Ors. 1991 (3) SCC 273.

5. We may note that the matter was passed over to enable Ms. Kadambari, who appears on behalf of the respondent/NHAI, to take instructions as to whether the petitioner's financial bid was returned only on the ground as claimed in the writ petition.

5.1 Ms. Kadambari has returned with instructions and says that the petitioner's bid was returned only on account of the fact that the cost deposited by the petitioner towards RFP process was deficient by Rs.10,000/-.

6. Issue notice. Ms. Kadambari accepts service on behalf of the respondent/NHAI. Counter-affidavit will be filed within three weeks. Rejoinder thereto, if any, will be filed before the next date of hearing.

7. In the meanwhile, the respondent/NHAI will allow the petitioner to proceed to the next step which, we are told, concerns the opening of the financial bid and consider the same on merits. The decision, so taken, will be subject to the final outcome in the writ petition.

8. List the matter on 25.05.2021."

2. The respondents have filed their counter affidavit and the stand taken by the respondents is that in furtherance to the orders passed by this Court, the bid of the petitioner was placed before t