The interpretation of tender clauses and the entitlement of the State to accept additional material as per the terms of the bid document.

ORDER (ORAL) RAVI MALIMATH, C. J. : – The case of the petitioner is that it is a non-profit professional organization operating in the Public-Private Partnership (PPP) mode. That the respondents called for a tender for operating the National Ambulance Services. That the respondent/State to achieve the objective of National Health Mission Scheme floated a tender through its e-portal website for selection of an agency for operation and management of the Integrated Referral Transport System (IRTS) and the 104- Health Helpline for National Health Mission (M.P.). The respondent No. 3 and two others bid for the same.The tender was awarded in favour of respondent No. 3. Questioning the same, the instant writ petition is filed.

2. The contention of the petitioner is that respondent No. 3 was not eligible to be awarded the tender. That he does not satisfy the basic requirements as called for in the tender. That he does not possess the basic qualifications. Even assuming that he possesses the basic qualifications, the relevant material in support of the bid were not furnished by him. The last date to furnish the bid was 4th October, 2021. Admittedly, certain documents were not filed within that date. They were filed much later. Therefore, the acceptance of the additional material produced by the respondent No. 3 and consideration of the same by the State by awarding him the tender is illegal and liable to be set aside. Hence, the instant petition seeking for a prayer to reject the technical bid of the respondent No. 3 and for a declaration to declare that the respondent No. 3 is not a successful bidder and on the contrary to declare that the petitioner is a successful bidder.

3. The respondent No. 2 filed objections disputing the plea. The respondent No. 3 supports the impugned order.

4. Heard learned counsels.

5. The learned counsel for the petitioner firstly contends that in terms of the tender document the same has specified the date before which the tender has to be filed. The same could be seen in terms of Annexure P/1 which would indicate that the last date for submission of the bid was 31-8-2021. However, by virtue of a corrigendum, the same was extended to 4-10-2021. He refers to various material produced by respondent No. 3 which would indicate that the documents were produced by him before the respondent No. 2 on 28th October, 2021. Since the last date was 4th October, 2021 such document could not be accepted. He placed reliance on Clause 2.6.7 of the bid document, which reads as follows : –

“2.6.7. Bidders should note the Proposal Due Date, as specified in Notice of RFP, for submission of Proposals. Except as specifically provided in this RFP, no supplementary material will be entertained by the NHM-MP, and the evaluation will be carried out only on the basis of documents received by the closing time of Proposal Due Date as specified in Notice of RFP. Bidders will ordinarily not be asked to provide additional material information or documents subsequent to the date of submission, and unsolicited material, if submitted, will be summarily rejected. For the avoidance of doubt, the NHM-MP reserves the right to seek clarifications in case the Proposal is non-responsive on any aspects.

6. Therefore, he contends that even though additional documents could be submitted by the bidders in case the relevant material or the crucial material has not been filed by him, the bid requires to be rejected. Therefore, he contends that in the absence of crucial document being filed, the bidder cannot be asked to give additional documents. In support of his case he relies on a judgment of the Hon’ble Supreme Court in the case of Vidarbha Irrigation Development Corporation vs. Anoj Kumar Garwal, reported in 2019 SCC Online SC 89 with reference to para Nos. 11 and 17.

7. We have considered the said judgment. In para 17, the Hon’ble Supreme Court has held as follows : –

“17. It is clear even on a reading of this judgment that the words used in the te