Material deficiencies in a bid cannot be cured under the Rajasthan Transparency in Public Procurement Act, 2012, affecting the bid's responsiveness.

JUDGMENT :

Mahendar Kumar Goyal, J.

1. This writ petition has been filed assailing the legality and validity of the order dated 11.3.2024 passed by the Chairman, Rajasthan State Food and Civil Supplies Corporation Ltd., Rajasthan-the second appellate authority (for brevity-'the second appellate authority') whereby, while allowing an appeal preferred by the respondent no.1 under the provisions of Rajasthan Transparency in Public Procurement Act, 2012 (for brevity-'the Act of 2012'), the work order given to the petitioner has been cancelled and re-tender procedure is directed to be started.

2. The relevant facts in brief are that the Rajasthan State Food and Civil Supplies Corporation (for brevity'-the Procuring Entity') issued a notice inviting bids dated 27.1.2023 for transportation of foodgrains/sugar from the godowns of the Food Corporation of India to the fair price shops in District Dholpur. It was a two stage bid. The petitioner and the respondent no.1 were the only participants. During the bid process, the Procuring Entity required the petitioner to supply the documents mentioned therein such as, audited balance sheet and profit and loss account with correct UDIN No., turnover and working capital certificate and ITR of financial year 2022-23. Technical analysis comparison chart of both the bidders was uploaded by the Procuring Entity on 1.12.2023 wherein, the petitioner was found “responsive” whereas, the respondent no.1 was found “non-responsive” and was disqualified for the reason that it has submitted the financial undertaking to furnish performance security of 2.5% instead of 5%. The first appeal preferred by the respondent no.1 against its disqualification came to be dismissed by the appellate authority vide order dated 8.1.2024; however, the second appeal preferred by it came to be allowed vide order impugned dated 11.3.2024 in the manner stated hereinabove. Hence, this writ petition assailing the order impugned.

3. It is stated in the writ petition that the second appellate authority erred in failing to appreciate that while, the deficiencies in the bid document of the respondent no.1 amounted to material deviation and were not curable under Rule 61 of the Rajasthan Transparency in Public Procurement Rules, 2013 (for brevity-'the Rules of 2013'), the deficiencies in its bid, i.e., shortfall in the documents submitted along with the bid document, were permitted to be cured by the Procuring Entity under Rule 61(2) of the Rules not being material. It is further stated that the petitioner was granted work order on 18.12.2023 after opening its financial bid on 1.12.2023 and upon having paid the entire security deposit as also the bank guarantee. It is, therefore, prayed that the order impugned dated 11.3.2024 be quashed and it may be permitted to continue with the work.

4. The respondent no.1 has, in its reply to the writ petition, supporting the findings recorded by the second appellate authority, stated that since, it was put to hostile discrimination by the Procuring Entity, its appeal has rightly been allowed as both the bidders should have been afforded level playing field. It is averred that the Procurement Entity committed illegality in permitting only the petitioner to cure the defect in its technical bid which was material in nature. It is further averred that on account of a typographical error in the bid document, the amount of performance security came to be mentioned as 2.5% instead of 5% since in the NITs issued previously, the performance security amount was 2.5%. Dismissal of the writ petition is, therefore, prayed for.

5. The respondents no.2 to 5 in their reply, supporting the order dated 11.3.2024, submitted that the writ petition be dismissed.

6. The petitioner, in its rejoinder to the reply filed by the respondent no.1, averred that the respondent no.1 has tried to mislead by not stating anything about the deletion of the mandatory stipulation in the financial undertaking “or as per RTPP Rules amended tim