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2014 Supreme(Mad) 1443
High Court of Judicature at Madras
B. RAJENDRAN, J.
M/s. Ambuj Hotels & Real Estates (P) Ltd., rep. by its Director
Versus
The Executive Director (Catering) Rail Bhavan & Others
W.P. Nos. 13932 & 13933 of 2014 & M.P. Nos. 1 & 2 of 2014
Decided on: 18-06-2014
For the Petitioner:N. Prakash, Sr. counsel, Pradeep Ranjan Tiwari, Advocate.
For the Respondents:R1 & R2, V.G. Suresh Kumar, M.S. Krishnan, Sr. counsel for Rajkishore Bhagwatsaran, Advocates.
Failure to comply with mandatory requirements outlined in a tender document and the obligation of bidders to rectify mistakes in a timely manner.
Headnote:
Tender - Catering Services - [Railway Catering Services] - [Chapter 3, Clause 3.5, Annexure A/2, Chapter 1, Section B, Clauses 10 and 11] - The court dismissed the writ petition challenging the rejection of a tender bid for catering services on the grounds of non-compliance with mandatory requirements, emphasizing that the tender notification clearly outlined the mandatory requirements, and the petitioner failed to rectify the mistake in a timely manner.
Fact of the Case:
The petitioner, a catering company, submitted a bid for providing catering services on a specific train but failed to include the ESIC Registration number as required in the tender document. The financial bid was opened without informing the petitioner, leading to the filing of a writ petition seeking direction to open the financial bid.
Finding of the Court:
The court found that the petitioner did not comply with the mandatory requirements outlined in the tender document and failed to rectify the mistake in a timely manner. The court emphasized that the tender notification clearly outlined the mandatory requirements, and the petitioner's failure to produce the required documents even after the tender bid was opened led to the dismissal of the writ petition.
Issues: Non-compliance with mandatory requirements in a tender bid, failure to rectify the mistake in a timely manner, and the authority's obligation to inform bidders of mistakes in the tender document.
Ratio Decidendi: The court held that the petitioner's failure to comply with the mandatory requirements outlined in the tender document and the delay in rectifying the mistake after the tender bid was opened led to the dismissal of the writ petition.
Final Decision: The writ petition was dismissed, and no costs were awarded. Connected miscellaneous petitions were also dismissed.
1. By consent the main writ petition itself is taken up for final disposal.
2. The petitioner company is engaged in the catering service of Railways, particularly in Rajdhani and Shatabdi express. The first respondent issued a tender document for provision of catering services on Train No.12615/16 Chennai Central -New Delhi Grand Trunk Express, dated 27.5.2013. The petitioner submitted the bid document for participation in technical and financial bid and it has given the Permanent Account Number, VAT/Service Tax Registration Number, Commercial Gas Cylinder License, Fire Training Certificate and PF Registration number. However, in Annexure A/2, under Serial Nos.10 and 11, the petitioner has mentioned only the EPF Registration Number and missed to mention the ESIC Registration number. The Second respondent issued a communication dated 01.04.2014 seeking clarification in regard to the above said repetition of EPF Registration Number in Sl.Nos.10 and 11. The petitioner submitted its reply letter, dated 04.04.2014, followed by another letter, dated 24.04.2014, but the respondents have not responded to the same. It is stated that in the previous bid documents issued by the Southern Railways, there was no clause in relation to ESIC account and the same is not mandatory to decide the bid/tender.
3. It is also stated that the financial bid was opened on 19.5.2014 without any information to the petitioner company. Hence the petitioner has come up with the present writ petition for a direction to respondents 1 and 2 to open the financial bid of the petitioner company in relation to train NO.12615-16 Chennai Central - New Delhi Grand Trunk Express.
4. Learned counsel for the petitioner submitted that the conditions which were imposed, including the condition for production of ESIC Number and the Registration Certificate cannot be termed as a mandatory. Therefore, the learned counsel contended that in view of the fact that the condition regarding mentioning of ESIC Number is not a mandatory, the authorities should not have rejected the tender form on the technical side. They should have also opened the financial bid of the petitioner.
5. The learned counsel for the respondents brought to the notice of this Court that under clause 3.5 of Chapter 3 of the Bid Document, the Additional Mandatory Requirements have been clearly spelt out. Clause 3.5 of Chapter-3 of the Bid Document is extracted hereunder for ready reference:
"3.5 Additional Mandatory Requirements:
3.5.1. All other mandatory requirements have been enlisted at Annexure A/2, Chapter 1 of Section B of the Bid Document. This includes Permanent Account Number, VAT/Service Tax Registration, ESIC and PF Registration, Commercial Gas Cylinder License, Fire Training Certificate etc."
6. Further, in Annexure A/2 under Chapter 1 of Section B of the Bid Document, the 'Mandatory Information for Eligibility of the Bid' is provided under Clauses 10 and 11 and the same are extracted hereunder for ready reference:
"10.ESIC Registration of the bidder (please enclose attested photo copy of ESIC Registration)"
11. PF Registration of the bidder (please enclose attested photocopy of Provident Fund Commissioner)."
7. When the above requirements are mandatory, even as per the Tender Notification, the present argument that those are not mandatory requirements and the mere non-filling of the document, which is only a mistake, should not be taken as suppression of fact, cannot be countenanced. The learned counsel has relied on the judgments of the Honourable Apex Court in W.B. State Electricity Board vs. Patel Engineeering Co. Ltd and Others (2001)2 Supreme Court Cases 451 and (2013) 10 Supreme Court Cases 95 Rashmi Metaliks Limited and Another vs. Kolkata Metropolitan Development Authority and others.
8. The successful bidder is also impleaded as a party and he would contend that he has already deposited the amount and he has complied with all the requirements as contemplated under the Tender Bid a
