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2015 Supreme(Guj) 1056
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
JAYANT PATEL AND N.V. ANJARIA, JJ.
ROSMERTA TECHNOLOGIES LIMITED & Anr. – Petitioners
Versus
COMMISSIONER OF TRANSPORT & Ors. – Respondents
SPECIAL CIVIL APPLICATION NO. 12306 of 2015
Decided on : 06-10-2015
For the Appellant :MR. MIHIR JOSHI, LD. SR. ADVOCATE FOR J. SAGAR ASSOCIATES, ADVOCATE.
For the Respondent:MR. KAMAL TRIVEDI, LD. ADVOCATE GENERAL WITH MS. S.K. VISHEN, LD. AGP, KOMAL S. DAVE, MR. ASPI M. KAPADIA, MR. D.K. SINGH, LD. SR. ADVOCATE WITH MR SIDDHARTH H. DAVE, ADVOCATE.
Important Point
While considering question of deviation from conditions, it has to be ascertained whether condition deviated from is an essential condition or non-essential condition.
Headnote:Government Contract – E-Tender – While considering question of deviation from conditions and whether such deviation has resulted into non-transference, non- fairness or arbitrariness, it has to be ascertained whether condition not complied with or deviated from is an essential condition or non-essential condition – Whether condition as regards composition of PET and PVC material in the card to be used for smart card licence was mandatory or minor, was it fundamental or subsidiary and whether it was ancillary condition is a question having significant bearing on the subject matter – Action of respondents in issuing Letter of Intent for awarding contract cannot sustain.
.Result – Petition allowed.
N.V. ANJARIA, J.
1. Invoking jurisdiction of this Court under Article 226, and asserting violation of Article 14 and 19(1)(g) of the Constitution, the petitioners herein have prayed for setting aside the Letter of Intent dated 30th June, 2015 issued by respondent No.1-Commissioner of Transport, Government of Gujarat in favour of private respondent No.3 pursuant to an E-Tendering process and thereby selecting respondent No.3 to be the agency for supply of consumables and manpower for supply and preparation of Smart-Card based Driving Licences in the State of Gujarat. Along with the said principal prayer to quash the award of the contract to respondent No.3, the petitioner has prayed for a direction against the respondent authorities to award the aforesaid work/tender to the petitioner company, to treat respondent No.3 as technically disqualified, etc.
2. Commissioner of Transport, Government of Gujarat-respondent No.1 came out with tender being E-tender No.GIPL/COT/2014/SDL/10, for supply of consumables and manpower for preparation of smart card based driving licenses for the State. Respondent No.2- Gujarat Info Petro Limited (GIPL) was the nodal agency which was assigned the task for completing the bidding process for the said work. The contract period of the project was provided to be of five years.
2.1 The process envisaged in the Request For Proposal (RFP) document relating to the bidding procedure involved the stages comprising of preliminary and pre-qualification scrutiny, evaluation of technical bids, evaluation of commercial bids, negotiations with the selected bidders and awarding the contract. The RFP document, copy of which is produced along with the petition, inter-alia mentioned the qualification criteria for the intending bidder including that the bidder shall be registered under the Companies Act, 1956, that it shall have the prescribed turn over of more than Rs.15 crores during the last three years, ought to have positive net worth for more than Rupees Five crores, must have executed at least two projects, etc. The RFP document prescribed and mentioned various qualification criteria mentioned as under- (1) The above mentioned qualification criteria is mandatory, otherwise, the bid will not be considered valid bid for opening of the Technical Bid, and adequate documentary proof shall be submitted for verification, (2) Financial bid qualification criteria: Bidders who have complied to all the above mentioned points and provided all the supporting document will qualify for the opening up of the Financial bid.
2.2 The further relevant clauses from the RFP document are extracted herein below which explain the stages in the tender process.
“3. Overview of Bidding Process
All evaluation will be carried out by GIPL on behalf of COMMISSIONER OF TRANSPORT (COT) as detailed below.
(i) Preliminary Scrutiny
The technical proposals will be opened on the mentioned date in this Bid Document at GIPL's Office. The bidders not submitting tender fees & EMD shall be straight away rejected for further tender evaluation.
(ii) Pre-qualification Criteria Scrutiny
The tenders who do not conform to meet any/partial/all the pre-qualification criteria mentioned in tender shall be straight away rejected. All eligible tenders will be considered for further evaluation.
(iii) Evaluation of Technical bids
The Technical Bid will be examined on the basis of responsiveness of the Evaluation Methodology and the Scope of work and other details as mentioned herein the document. Technical evaluation marking statement of bidders is prepared based on the Evaluation Methodology & their compliance to all the terms and conditions of the tender will be prepared.
(iv) Evaluation of Commercial bids
The Commercial bids will be opened for the technically qualified bidders only. The bidder who stands L1 may be awarded the contract. COT will have the right to divide this order between more than one party at L1 price and may do as at his discretion.
The decision of COMM
