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2017 Supreme(Raj) 1448
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR
AJAY RASTOGI, DEEPAK MAHESHWARI, JJ.
M/s. Real Mazon India Ltd. & Ors. - Appellants
Versus
State of Rajasthan & Ors. - Respondents
D.B Special Appeal Writ No. 1325 of 2017
Decided On : 02-11-2017
Important Points
Subject
Tender - INTERPRETATION OF NIT
Act Referred
RAJASTHAN TRANSPARENCY IN PUBLIC PROCUREMENT RULES : R.68
Headnote
TENDER - INTERPRETATION OF NIT - FINANCIAL CAPABILITIES - CONSORTIUM - JOINT VENTURE - RAJASTHAN TRANSPORT DEPARTMENT HSRP TENDER DOCUMENT - CONDITIONS OF NIT - APPLICABILITY - RATIO DECIDENDI - FINANCIAL CAPABILITIES OF BIDDERS - ADDITIONAL CONDITIONS FOR JOINT VENTURE AND CONSORTIUM - HARMONIOUS INTERPRETATION - DISTINCTION BETWEEN JOINT VENTURE AND CONSORTIUM - APPLICATION OF R.68 OF RAJASTHAN TRANSPARENCY IN PUBLIC PROCUREMENT RULES, 2013.
Fact of the Case:
Appellant, a consortium, challenged the rejection of its bid for creating infrastructure for supplying and affixing High Security Registration Plate (HSRP) in Rajasthan. The rejection was based on technical disqualification due to failure to meet financial capabilities as per the Notice Inviting Tender (NIT). The appellant contended that the NIT conditions for financial capabilities were not applicable to a consortium, while the State argued that the conditions applied to both joint ventures and consortiums.
Finding of the Court:
The court held that the NIT conditions for financial capabilities were not applicable to a consortium in addition to the conditions specifically mentioned for consortiums. The court found that the conditions for joint ventures and consortiums were separate and distinct, and that applying the conditions for joint ventures to consortiums would result in an erroneous interpretation of the NIT.
Issues: 1. Whether the NIT conditions for financial capabilities were applicable to a consortium in addition to the conditions specifically mentioned for consortiums. 2. Whether the conditions for joint ventures and consortiums were separate and distinct.
Ratio Decidendi: The court interpreted the NIT conditions for financial capabilities in a harmonious manner, considering the context and purpose of the conditions. The court found that the conditions for joint ventures and consortiums were separate and distinct, and that applying the conditions for joint ventures to consortiums would result in an erroneous interpretation of the NIT. The court also noted that the conditions for consortiums were additional to the general conditions for financial capabilities applicable to all bidders.
Final Decision: The court allowed the appeal, quashed the rejection order and the order of the Single Judge, and directed the Government to complete the tender process within four weeks in accordance with the NIT conditions.
For the Appellants :Mr. Aman Preet Singh, Advocate with Mr. Sandeep Pathak, Adv.
For the Respondents: Mr. Rajendra Prasad, A.A.G assisted by Mr. Ashish Sharma, Adv., Mr. Madhav Mitra, Adv. & Mr. Arun Singh Shekhawat, Adv.
DEEPAK MAHESHWARI, J.
1. This intra court appeal has been preferred to assail the judgment dt. 05.09.2017 passed by the Ld. Single Judge in the S.B Civil Writ Petition No. 14142/2017. The said writ petition sought to quash the order dt.18.08.2017 passed by the respondent No. 2 whereby the bid for creating infrastructure for supplying and affixing the “High Security Registration Plate” (hereinafter referred to as ‘the HSRP’) in the State of Rajasthan submitted by the present appellant, was rejected during technical evaluation the committee on the ground of technical disqualification.
2. With the consent of the parties, the matter was finally heard and during the course of arguments, opportunity was afforded to submit their written submissions. However, the same were filed by the appellants and respondent No. 3 only.
3. The narrow yet important issue to be decided in this appeal is whether cl.1.5.3.2 under the conditions of “Notice Inviting Tender” (hereinafter referred to as ‘the NIT’) dt.30.05.2017 read with corrigendum dt.30.06.2017 is in addition to the requirement envisaged in cl.1.5.3.1 or it is in reference to cl.1.5.3 (financial capabilities). Secondly, whether interpretation of the terms & conditions of the NIT as observed by the ld. Single Judge in the impugned judgment dt.05.09.2017 is tenable in law.
4. For the sake of brevity, before adverting to the facts of the case, it has come on record that the appellant herein earlier implemented the HSRP Project in the State of Rajasthan from 2012-2017 and concerning the first issue, our attention was drawn to the text of the NIT dt.30.05.2017 Cl.1.1.5 of the NIT stipulates that “Bidder’ shall mean an individual or a registered firm or a company or a corporation or a joint venture or a consortium, each having a valid Type Approval Certificate in its own name or in the name of an entity forming part of joint-venture/consortium, and in possession of such qualifications both technical and financial, as 1.1.16 respectively land down in this bid document”. Further definitions of “Bidder“ is given u/d 1.1.5 and “consortium” & “Joint Venture” u/cl.1.1.6 & 1.1.16 reactively, which state as following:
“1.1.5 “Bidder” shall mean an individual or registered firm or Company or a Corporation or a Joint Venture or a Consortium, each having a valid Type Approval Certificate in its own name or in the name of an entity forming part of Joint Venture/Consortium, and in possession of such qualifications both technical and financial as are laid down in this bid document.
1.1.6 “Consortium’ shall mean the association of a minimum of two and a maximum of four entities and of which one entity is the lead member duly nominated by all other members of that consortium. The lead member shall commit to hold a minimum equity stake of 40 percent in the consortium. Rest of the members may possess remaining equity share, but not less than 15 percent individually and such member shall not be a part of any other bidding entity for the purpose of this bid. Such consortium should possess Type Approval Certificate in its own name or in the name of one of the entities forming the consortium.
1.1.16 “Joint Venture’, duly incorporated under provisions of the Companies Act, 1956, shall mean the combination of a minimum of two and a maximum of four entities, one entity is the lead member, duly nominated by all other members of that joint-venture. The Lead Member shall commit to hold a minimum equity stake of 40 percent in the Joint Venture. Rest of the members, if any, may possess remaining equity share, but not less than 15 percent individually, one member of such joint-venture must hold a Type Approval Certificate and such member shall not be a part of any other bidding entity for the purpose of this bid. Each entity either individually or one of its constituent partners/members should hold a valid type approval certificate, as the case may be.”
5. The assessment of an application for bid, whether by a Joint Ventu
