2015 Supreme(Raj) 1699
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Ms.Bela M.Trivedi, J.
Abeinsa Infrastructuras Medio Ambiente, S.A. - Appellant
Versus
State of Rajasthan and others - Respondent
S.B. Civil Writ Petition No.8027 of 2015.
Decided On : 27-07-2015
Advocates:
For the Petitioners:Mr. Kamlakar Sharma, Senior Counsel assisted by Mr. Harsh Sahu, Advocate.
For the Respondent:Mr. J.M. Saxena, Advocate.
Clause 42.5 of the ITB, which allowed the respondents to withhold reasons for rejecting technical bids until the award of the contract, was not arbitrary or illegal.
Headnote:
TENDER - EVALUATION OF TECHNICAL BIDS - SUBSTANTIALLY NON-RESPONSIVE - CLAUSE 42.5 OF INSTRUCTIONS TO BIDDERS - ARBITRARINESS AND LEGALITY - RAJASTHAN TRANSPARENT IN PUBLIC PROCUREMENT ACT, 2012 - APPLICABILITY - SECTION 3(3).
Fact of the Case:
Petitioner challenged the evaluation of its technical bids for three packages of a rural water supply project as substantially non-responsive, alleging arbitrariness and illegality in the process. It also challenged the legality of Clause 42.5 of the Instructions to Bidders (ITB) that allowed the respondents to withhold reasons for rejecting technical bids until the award of the contract.
Finding of the Court:
The court held that Clause 42.5 was not arbitrary or illegal as it was made known to the bidders in pre-bid meetings and accepted by them along with other conditions. The court also found that the respondents had acted fairly in evaluating the petitioner's technical bids and that there was substance in the reasons for finding them non-responsive.
Issues: 1. Whether Clause 42.5 of the ITB, which allowed the respondents to withhold reasons for rejecting technical bids until the award of the contract, was arbitrary and illegal. 2. Whether the provisions of the Rajasthan Transparent in Public Procurement Act, 2012 applied to the procuring entity in the matter of an agreement entered into by the Central Government with another country.
Ratio Decidendi: 1. The court held that Clause 42.5 was not arbitrary or illegal as it was made known to the bidders in pre-bid meetings and accepted by them along with other conditions. The court also found that the respondents had acted fairly in evaluating the petitioner's technical bids and that there was substance in the reasons for finding them non-responsive. 2. The court held that the provisions of the Rajasthan Transparent in Public Procurement Act, 2012 did not apply to the procuring entity in the matter of an agreement entered into by the Central Government with another country, as per Section 3(3) of the Act.
Final Decision: The court dismissed the petition, finding no substance in the petitioner's claims.
JUDGMENT
1. - The petitioner, by way of present petition, has challenged the action of the respondent No.2 in evaluating the Technical bids submitted by the petitioner for the package No.1(TM-01), package No.2(TM-02) and package No.3 (TM-03) for the Rajasthan Rural Water Supply & Fluorosis Mitigation Project (Nagaur)(hereinafter referred to as 'the said project'), as substantially non-responsive to the requirements of Bid documents. The petitioner has also challenged the legality of Clause 42.5 of the Instructions to the bidders (ITB) contained in the Bid documents.
2. The short facts giving rise to the present petition are that the petitioner is a company incorporated in Spain under the law of Spain having registered office at Spain as well as at Mumbai. The Government of India having received a loan from Japan International Cooperation Agency(JICA) under the loan agreement dated September 28, 2012 for the said project, and the Government of Rajasthan being an implementing agency for the said project, had invited online bids under the International Competitive Bid procedure on 25/11/2014 from the eligible bidders for three transmission projects i.e. IFB No.02/2014-15 (TM-01), IFB No.03/2014-15(TM-02) and IFB No.04/2014-14(TM-O3). The conditions and requirements for all the three packages were contained in the Bid documents Annexure-1. According to the petitioner, it had submitted the Technical Bids containing all the documents as required, along with the Financial Bids on March 10, 2015 separately for all the three packages and had also deposited the requisite bid security amount for the same. It appears that the concerned respondent vide the letters dated 24 and 26 March, 2015 had sought clarification from the petitioner on certain issues for the evaluation, and the petitioner vide the letters dated 31st march, 2015 had responded to the said queries raised by the respondent and furnished the documents sought for by the respondent. According to the petitioner, though it had complied with all the requirements of the three packages, it was informed by the respondent No.2 vide the letters dated 21st May, 2015 (Annexure-5 collectively) that the Technical bids submitted by the petitioner were found to be substantially nonresponsive to the requirements of the Bid documents for all the three packages. The said decisions contained in the said letters are under challenge in the present petition.
3. The respondents have filed the reply resisting the petition disputing and denying the allegations made in the petition, to which the petitioner has filed the rejoinder.
4. The learned Senior Counsel Mr. Kamlakar Sharma for the petitioner taking the Court to the various clauses and instructions contained in the Bid documents vehemently submitted that the action of the respondent No.2 in evaluating the Technical bids submitted by the petitioner as substantially nonresponsive to the requirements of the Bid documents was arbitrary and illegal, more particularly when the same was not supported by any reasons. According to him, though the petitioner had made representation to the respondents requesting them to give the reasons for treating the petitioner's Technical bids as substantially non-responsive, the respondents did not respond to the said representation. He further submitted that the Clause 42.5 contained in the ITB permitting the respondents to withhold the reasons for rejecting the Technical bids of the bidders, till the award of contract, is itself arbitrary, illegal and unconstitutional. Placing reliance upon the decision of Apex Court in case of Kranti Associates Private Limited & Anr. v. Masood Ahmed Khan & Ors., (2010) 9 SCC 496 , he submitted that the participating bidders are entitled to the fair, equal and non discriminatory treatment in evaluation of their bids/tenders, and that the fairness in decision could be known only through the reasons. He also relied upon the decision of Apex Court in case of Central Inland Water Transpo
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