2019 Supreme(Raj) 167

IN THE HIGH COURT OF RAJASTHAN, JAIPUR BENCH
Mohammad Rafiq, Goverdhan Bardhar, JJ.
The Project Director, RUIDP and Ors. - Appellants
Vs.
Ramky Infrastructure Ltd. and Ors. - Respondents
D.B. Special Appeal (Writ) No. 804 of 2018, D.B. Civil Misc. Stay Application No. 10067 of 2018 in S.B. Civil Writ Petition No. 17954 of 2017 and D.B. Special Appeal (Writ) No. 724 of 2018 in S.B. Civil Writ Petition No. 17954 of 2017
Decided On : 29-03-2019

The tender conditions must be strictly complied with and any deviation from the terms and conditions is permissible only if the level playing field is maintained and it does not result in any arbitrariness or discrimination.

Headnote:

TENDER - TECHNICAL BID - NON-RESPONSIVE - CLARIFICATION - TIME - EXTENSION - FINANCIAL RESOURCES - WORKING CAPITAL - REVOLVING LINE OF CREDIT - UNCONDITIONAL CERTIFICATE - MATERIAL DEVIATION - JUDICIAL REVIEW - SCOPE - INTERFERENCE - CONTRACTUAL MATTERS - FREEDOM OF CONTRACT - TENDER CONDITIONS - STRICT COMPLIANCE - LEVEL PLAYING FIELD - ARBITRARINESS - DISCRIMINATION - PUBLIC INTEREST.

Fact of the Case:

The appellant-RUIDP floated a bid for procurement of design and construction of work of providing sewer network with house sewer connections, trench-less sewer, design and construction of sewage treatment plant, sewage pumping station, power generation unit at STP & allied works and operation & maintenance services of the entire system for 10 years in Kota City (Part Area). The respondent-writ-petitioner M/s. Ramky Infrastructure Ltd. was required to provide clarification on the following points:- 1. The bidder has not submitted the mobilization and construction schedule. Bidder to submit the same. 2. MOA with Sub contractor M/s. Gypsum Structural India Pvt. Ltd., Delhi for the work of "Providing, laying, jointing, testing and commissioning of sewer pipeline by micro tunneling" is not notarized,. Bidder to submit Notarized copy of MOA. 3. Financial Statements for the FY ended 31-3-17 have not been submitted. The Bidder is requested to provide audited copy of financial statements for FY 2016-17 for the purpose of financial evaluation. 4. FIN 6 - The calculations have to be redone with the Turnover for 2016-17 and Affidavit needs to be resubmitted. 5. The Revolving line of Credit submitted by the Bidder is requested to resubmit the letter from Bank strictly as per format in the bid document and unconditional. 6. The certificate of fund based and non fund based credit facility provided by SBI is conditional. Bidder to provide unconditional letters from the Bank for credit facilities. The writ-petitioner M/s. Ramky Infrastructure Ltd. submitted clarification on 11.09.2017 in respect of Item No. 1 to 4 and sought time upto 15.09.2017 for submitting clarification in respect of Item No. 5 and 6. The Technical Evaluation Committee (for short, 'the TEC') on 20.09.2017 considered the bid document as per Clause 30 and declared the writ-petitioner and one more bidder-M/s. Gammon-Technofab JV, non-responsive as FIN-5 furnished by them was not in format and was conditional one. The decision of the TEC was uploaded on its website on 25.09.2017 at 10:56 AM and time of 3:00 PM was fixed for opening the financial bid. The writ-petitioner however submitted a letter on 25.09.2017 of the Punjab National Bank (for shot, 'the PNB') for revolving line of credit. The writ-petitioner challenged action of the appellant-RUIDP declaring its technical bid as non-responsive in writ petition, which has been allowed by the learned Single Judge by the impugned judgment.

Finding of the Court:

The learned Single Judge has erred in ignoring Clause 29.2 while applying Clause 30.2. A harmonious reading of these two Clauses would reveal that a bid in which the documents as required by ITB-16, and those prescribed under Section 4 are missing shall have to be rejected. This would be treated as material omission as defined in Clause (c) of Clause 28.1. The bid became clearly non-responsive as according to Clause 29.2 this omission is bound to result in rejection of the bid. Learned Single Judge was therefore not justified in holding that further opportunity to cure the deficiency should have been given. In doing so, learned Single Judge overlooked the fact that firstly it was a material non-conformity and secondly, reasonable time to cure deficiency was provided. Consideration of the letter of assurance of the PNB would have resulted in substantial addition to the bid document, and would have amounted to permitting the bidder to subsequently make a non-responsive bid responsive by correction of material deviation/omission, which opportunity was not available to others. If done, this would have vitiated the entire bidding process as a person, who does not have the assurances making him financially capable by the time of the last date for submission of the bid, may be able to secure such assurances later on to cure the ineligibility.

Issues: 1. Whether the appellant-RUIDP was justified in declaring the technical bid of the writ-petitioner as non-responsive? 2. Whether the learned Single Judge was justified in allowing the writ petition and directing the appellants to open the financial bid of the writ-petitioner and take a decision relating to award of contract?

Ratio Decidendi: 1. The appellant-RUIDP was justified in declaring the technical bid of the writ-petitioner as non-responsive as the writ-petitioner failed to submit the unconditional certificate from the Banker with regard to the credit facilities as provided in Fin-3 and Fin-5. 2. The learned Single Judge was not justified in allowing the writ petition and directing the appellants to open the financial bid of the writ-petitioner and take a decision relating to award of contract as the writ-petitioner failed to comply with the mandatory requirements of the bidding documents.

Final Decision: Both the appeals are allowed. The impugned judgment dated 22.05.2018 is set-aside. Consequently, the writ petition is dismissed.