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2018 Supreme(Raj) 492
IN THE HIGH COURT OF RAJASTHAN
Sandeep Mehta, J.
IDL Explosives Limited - Appellant
Vs.
State of Rajasthan - Respondent
C.W.P. No. 7553 of 2017
Decided On : 06-04-2018
Advocate Appeared:
Anil Bhansali, G.J. Gupta, Pancham Surana, Surendra Singh
A bidder's failure to comply with the mandatory requirements of a tender document, such as providing a complete and accurate price break up form, may lead to the disqualification of the bid, but the forfeiture of the bid security may not be justified if the disqualification should have occurred at an earlier stage.
Headnote:
TENDER - DISQUALIFICATION - DEFICIENCY IN BID - FORFEITURE OF BID SECURITY - Rajasthan State Mines and Minerals Limited invited online tenders for manufacture and delivery of Bulk Site Mixed Emulsion Explosive down the hole at Jhamarkotra Rock Phosphate Mines, Udaipur. The petitioner's bid was initially accepted as the lowest, but later rejected due to a deficiency in the price break up form (Form-7). The petitioner challenged the rejection of its bid and the forfeiture of its bid security.
Fact of the Case:
The petitioner, an experienced manufacturer of explosives, participated in an online tender invited by Rajasthan State Mines and Minerals Limited (RSMML) for the manufacture and delivery of Bulk Site Mixed Emulsion Explosive. The petitioner's bid was initially accepted as the lowest, but later rejected due to a deficiency in the price break up form (Form-7). The petitioner challenged the rejection of its bid and the forfeiture of its bid security.
Finding of the Court:
The court held that the petitioner's bid should have been disqualified at the techno qualification stage due to the deficiency in Form-7. However, the court quashed the direction to forfeit the petitioner's bid security, directing the respondents to refund the bid security within 30 days.
Issues: 1. Whether the petitioner's bid should have been disqualified due to the deficiency in Form-7? 2. Whether the forfeiture of the petitioner's bid security was justified?
Ratio Decidendi: 1. The court held that the petitioner's bid should have been disqualified at the techno qualification stage due to the deficiency in Form-7, as it was an integral part of the tender document and the petitioner had intentionally left it blank. 2. The court held that the forfeiture of the petitioner's bid security was not justified, as the petitioner's bid should have been disqualified at the techno qualification stage, before the bid security was forfeited.
Final Decision: The court upheld the rejection of the petitioner's bid but quashed the direction to forfeit the petitioner's bid security, directing the respondents to refund the bid security within 30 days.
Sandeep Mehta, J.
The matter is today listed for orders on the interlocutory application No.1598/2018 filed by the learned counsel Shri Pancham Surana for bringing a document on record. Learned counsel for the respondents do not object to the said application. Thus, the interlocutory application is hereby allowed and the document is taken on record.
2. With the consent of the learned counsel for the parties, final arguments were heard on the writ petition and the matter is being decided today itself.
3. Facts in brief are that the petitioner herein claims to be having extensive experience in the business of manufacture, production, preparation, import, export, etc. of detonators, industrial explosives, explosive accessories, etc. The respondent Rajasthan State Mines and Minerals Limited invited online tenders in electronic form through its E-portal from individuals/firms/companies for manufacture and delivery of Bulk Site Mixed Emulsion Explosive down the hole at Jhamarkotra Rock Phosphate Mines, Udaipur with the estimated total quantity being around 7500 metric tones. The period of contract was stipulated as 60 months. The tender was uploaded on the website on 03.11.2016.
4. The aspiring applicants were required to submit their bids online in the electronic form as prescribed in the tender. The complete bid document was published on the site of the www.rsmm.com/eproc.rajasthan.gov.in, for the purpose of downloading. It was conveyed that the tender shall be per-qualified on the basis of documents/credentials/downloaded alongwith Techno-commercial bid and the company reserved its right to call for any additional information so as to verify the tenderer's eligibility. The tender document also stipulated that the BOQ Format must not be modified/replaced timely by the bidder and the same should be uploaded after filling the relevant columns else the bid would be liable to be rejected for this tender. Various corrigendums were also issued in the tender process and the last date for submission of tenders was extended till 27.12.2016. Only two bidders namely the petitioner herein and the respondent No.4 Solar Industries India Limited submitted their bids in pursuance of the said E-tender. The technical bids were opened on 05.01.2017.
5. On 08.02.2017, information was uploaded to the effect that both the bids were found techno-commercially qualified for price bid opening. The financial bids were opened on 10.02.2017 and the summary thereof was uploaded on the E-portal previously intimated. The petitioner was ranked as the lowest bidder because its rate was significantly lower than that offered by the respondent No.4 herein i.e. Solar Industries India Limited. The petitioner claims that it had strictly adhered to the required stipulations in the manner of quoting the basic rate in the BOQ Format. The petitioner also claims that immediately after the financial bids had been opened, the respondent No.3 i.e., the General Manager (Contract), RSMML, directed it to submit the price break up in Form-7 of the tender document because the online Form-7 submitted by the petitioner was inadvertently left blank. The petitioner was advised vide letter dated 15.02.2017 to furnish hardcopy of the form offline. It is claimed in the writ petition that the information contained in Form No.7 is only for the internal use of the RSMML and is not an essential part of the tender. The petitioner's further plea is that the basic rate stipulated by a bidder in the online item rate BOQ Form-6 is the sole criterion for determining the financial bid and the price break up as stipulated in the Form-7 is not material/relevant for determining the same.
6. The petitioner has asserted that despite its bid being lower and its rightful claim to be declared the lowest bidder, the respondents colluded with each other and contrary to the lawful process of tender evaluation, the respondent No.4 was invited for negotiations vide communication dated 19.04.2017 and thereafte
