Point of Law: The rejection of the tender form of the petitioner on the ground that it is not submitted by the authorized person is a curable defect and if only amended clause 17.4 is made applicable, the said defect would not even arise.

ORDER :

This Writ Petition is filed seeking a Writ of Mandamus declaring the action of the respondents in disqualifying the bid placed by the petitioner in Tender No.52-CAO-C-SC-2020 as illegal and arbitrary and violative of Indian Railway Standard SGeneral Conditions of Contract (IRSGCC) July 2020 and consequently set aside the disqualification of the petitioner.

2. Heard Sri Kailash Nath P.S.S., learned counsel for the petitioner and Sri C.V.Rajeeva Reddy, learned Standing Counsel for the respondents.

3. It has been contended by the petitioner that it is a Joint Venture (JV) between M/s.Railone Projects Pvt. Ltd and M/s. Avexa Corporation Pvt. Ltd., and both the companies have entered into a Memorandum Of Understanding (MOU) on 25-07-2020 to apply jointly in pursuance to the tender notification issued by the respondents. Both the companies are in the construction of projects and the respondents have issued a tender notification on 01-07-2020 for the proposed Third Line between Balharshah – Kazipet Station in Secunderabad Division for the proposed construction of RUR box (cast in situ). The last date for submission of filled in tenders was 28-07-2020. The petitioner participated in pursuance to the said tender as a joint venture and submitted its technical bids. The respondents had rejected the technical bid on the ground that the authorized signatory has not submitted the tender forms. The petitioner had further contended that as per General Instructions in the tender documents, it is abundantly made clear that the General Conditions of Contract governing the performance of the works are covered by the Indian Railways Standard General Conditions of Contract (herein after referred to as “IRSGCC” for short). The relevant clause which reads as follows:

“The General conditions of Contract governing the performance of the works covered by this tender are the Indian Railway Standard General Conditions of Contract (IRSGCC) as amended from time to time up to date. A soft copy of the IRSGCC is uploaded in the attached documents to the tender for reference. Hard coy of IRSGCC (with up-to-date correction slip) may be perused in the office of the Chief Administrative Officer/Construction/South Central Railway/ Secunderabad-500071. The tenderer/s is/are deemed to have kept himself/themselves fully informed of the provisions of the IRSGCC including all corrections and Amendments issued up to date while submission of offer and any claim that he/they is/are not aware of any amendment of correction slip to the IRSGCC shall not be entertained.”

4. The petitioner had contended that as per the joint venture of the petitioner’s consortium, the Power of Attorney was given to one K.Kotireddy to submit tender documents and all the documents were accordingly signed by the said Kotireddy but however while submitting the tender application form, one Jogeswara Rao, one of the partners, has signed. The petitioner had further contended that the IRSGCC was further amended on 16-07-2020 and as per Clause 17.4 of the amended IRSGCC, the tender form shall be purchased and submitted only in the name of the Joint Venture not in the name of any constituent member. The tender form can however be submitted by JV or any of its constituent member or any person authorized by Joint venture through Power of Attorney to submit the tender. General Clause No.1 of the IRSGCC makes it clear that the tenderers are deemed to have kept themselves fully informed of the provisions of IRSGCC including all corrections and amendments issued up to date while submission of offer and any claim that he/they is/are not aware of any amendment or correction slip to the IRSGCC shall not be entertained, which should mean that any amendment made till the submission of tenders are issued, the new amendments are also to be acted upon. Though the tender notice was issued on 01-07-2020 and the last date for submission of the tender was 28-07-2020, there was an amendment on 16-07-2020 wherein as per