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2018 Supreme(P&H) 3760
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
Krishna Murari, Arun Palli, JJ.
Malwa Land Solution And Surveyor Through Its Proprietor Gurpreet Singh - Appellant
Versus
State Of Haryana And Others - Respondent
Civil Writ Petition No. 22076 of 2018
Decided On : 31-08-2018
Saurabh Bajaj, Adv.
Not all tender conditions are essential, and non-compliance with ancillary or subsidiary conditions may not warrant rejection of the tender.
Headnote:
Tender Conditions - Bid Acceptance - NIT Clause 9, 25
Fact of the Case:
The petitioner challenged the acceptance of the bid of respondent No.5 for a demarcation work project. The petitioner claimed that the bid of respondent No.5 was in violation of condition Nos.9 and 25 of the Notice Inviting Tender (NIT) as it was not in lump sum and was on a per day basis.
Finding of the Court:
The court found that the bid offered by respondent No.5 was lower than the petitioner's bid and that the alleged violations of NIT conditions were not essential in nature but ancillary or subsidiary. The court declined to enter into a judicial review of the decision to accept respondent No.5's bid.
Issues: The issues involved the alleged violation of NIT conditions by the successful bidder and the petitioner's challenge to the acceptance of the bid.
Ratio Decidendi: The court held that not all tender conditions are essential, and non-compliance with ancillary or subsidiary conditions may not warrant rejection of the tender. The court cited various cases to support the principle that the decision-making process should be respected unless there is mala fide or perversity in the understanding or application of the tender conditions.
Final Decision: The writ petition was dismissed in limine as the court found the alleged violations of NIT conditions to be insufficient for judicial review of the decision to accept respondent No.5's bid.
JUDGMENT
Krishna Murari, C.J. - Petitioner an unsuccessful bidder has approached this Court by filing the instant writ petition challenging the acceptance of the bid of respondent No.5. A further writ of mandamus has been claimed to declare him a successful bidder and to command the respondents to accept his bid.
2. Respondent No.3 issued a Notice Inviting Tender (NIT) for the work of demarcation through DGPS/TS machine of outer boundary by plying and fixing stone pillars at the abadi area of 30 villages of Bhakra Dam oustees resettled in District Hisar, Fatehabad and Sirsa. The time limit of the work as per the NIT was three months'.
3. In response to the aforesaid NIT, the petitioner firm as well as respondent No.5 alongwith other bidders submitted their bid. Petitioner firm submitted its bid quoting lump sum amount of Rs. 9,50,001/-. Respondent No.5 also submitted its bid quoting the rate at the rate of Rs. 9500/- per day.
4. The bids offered by the tenderers were scrutinized and since the rates offered by respondent No.5 were found to be the lowest working out to be Rs. 8,55,000/- calculated at the offered rate of Rs. 9500/- per day for a period of 90 days, his bid was accepted vide impugned letter dated 24.08.2018. The challenge to the same has been made by the petitioner on the ground that acceptance of the bid of respondent No.5 is in violation of condition Nos.9 and 25 of the NIT. According to the petitioner, the terms and conditions provided, the rate to be offered in lump sum and since the offered submitted by respondent No.5 was on per day basis, it was not in lump sum and thus was liable to be rejected in view of clause-9 of the NIT which provided that a conditional tender was not liable to be accepted. For a ready reference, clauses 9 and 25 of the NIT are being reproduced hereunder:-
"9. Conditional tenders or tenders received late or tenders submitted telegraphically or incomplete tenders will be rejected out rightly without assigning any reason.
25. The quantities as given in the estimate/tender form/tentative schedule of quantities is approximate and only for the guidance of contractors and not for any claim etc. The quantity of work can be increased/decreased or any item of work withdrawn/added and no claim on this account shall be entertained and rates are on lump sum basis."
Thus clause 9 of the NIT provides that conditional tenders or late tenders or incomplete tenders were liable to be rejected. Similarly clause-25 provides the quantities as given in the estimate/tender form is approximate and not for the purposes of any claim etc. and in case the quantity of the work gets increased/decreased or any item of work is withdrawn/added, no claim on that count was liable to be entertained and the rates were on lump sum basis.
5. Learned counsel for the petitioner is harping upon the words "rates are on lump sum basis" used in clause-25 of the NIT to urge that it was a conditional tender and thus was liable to be rejected as per clause 9.
6. We have considered the arguments advanced by learned counsel for the petitioner and perused the record.
7. There is no dispute about the fact that the time limit prescribed to carry out was three months. Equally undisputed is the fact that the bid offered by the petitioner for the work in question was Rs. 9,50,001/- whereas the rate offered by respondent No.5 was Rs. 9500/- per day and on calculation at the said rate for a period of 90 days i.e. three months, worked out to be Rs. 8,55,000/- which was lower than the bid of the petitioner, for which reason the respondents' authorities accepted the same.
8. Now what is to be considered is whether the bid offered by respondent No.5 was in any manner in violation of the terms and conditions of the tender notice and was thus liable to be rejected.
9. As a matter of law, there can be no two opinions that tender conditions bind both the agency which invites the bid as well as the potential bidder. The NIT contains number of condition
