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SUPREME COURT OF INDIA
DIPAK MISRA, R.F. NARIMAN, JJ.
BAKSHI SECURITY & PERSONNEL SERVICES PVT. LTD. – APPELLANT
VERSUS
DEVKISHAN COMPUTED PVT. LTD. & OTHERS – RESPONDENTS
CIVIL APPEAL NO. 6978 OF 2016 (ARISING OUT OF SLP (CIVIL) NO. 5695 OF 2016)
Decided On : 26-07-2016
Government contract – Tender mandatorily required to conform to Annexure 2 – Annexure 2 in turn making it clear that if the component of salary quoted is less than the minimum wage prescribed, the bid is liable to be rejected – High Court could not hold otherwise – Moreover ‘without prejudice’ offer of Respondent no. 1 rendered the quoted price as variable and not fixed – An essential condition of a tender has to be strictly complied with. (Para 14, 15)
(1991) 3 SCC 273; (2006) 11 SCC 548 – Relied upon
(b) Constitution of India – Article 226 – Writ jurisdiction – Cannot be utilized to make a fresh bargain between parties – High Court treating Respondent No.1’s offer as matching with the revised minimum wage calculation – Amounting to making a new contract – Not correct. (Para 17, 19)
(1996) 3 SCR 500; (2012) 8 SCC 216 – Relied upon
(c) Administration of justice – Judicial review – Constitution of India – Article 226 – Invocation of power of judicial review to protect private interest at the cost of public interest or to decide contractual disputes – Not permitted – High Court finding no mala fides in determining minimum wage figures – Ought not have interfered. (Para 20, 21)
(2012) 8 SCC 216 – Relied upon
Facts of the case:
The Commissioner of Transport, Government of Gujarat, floated a tender seeking bids for services inter alia of supervisors, computer programmers, data entry operators, and electrician staff at 11 RTO check-posts.
9 bidders gave financial bids of which only three were qualified. The Appellant bid for a total amount of Rs.2,92,93,944/-; Respondent No.1 bid for Rs.2,77,68,000/-, and one Airan Consultants Pvt. Ltd. made a bid for Rs.3,03,83,184/-.
The Technical Evaluation Committee arrived at a minimum wage figure of Rs.3,00,92,346/-. Inasmuch as both the Appellant as well as Respondent No.1 gave bids which were below this figure, both the Appellant as well as Respondent No.1 were held to be ineligible. A decision was, therefore, taken to award the tender to the third bidder, namely, M/s Airan Consultants Pvt. Ltd.
Respondent No.1 approached the Gujarat High Court in a writ petition challenging the aforesaid decision. The High Court directed that the Government of Gujarat shall give an opportunity to all three tenderers to resubmit their bids after being appraised of the minimum wage figure given by the Labour Department.
Both the appellant and respondent no. 1 stuck to their offers.
the Government, on 30.10.2015, arrived at a decision that the actual minimum wage plus bonus worked out to Rs.2,91,00,000/-, and thus revised their earlier figure of Rs.3,00,92,346/-. This figure was not disclosed to either party.
Respondent No.1 filed second writ petition which was allowed.
Finding of the Court:
Respondent No.1 has clearly violated the strict terms of the tender condition on every occasion and hence cannot be given relief.
Result: Appeal allowed.
JUDGMENT
R.F. NARIMAN, J.
1. Leave granted.
2. On 20.11.2014, the Commissioner of Transport, Government of Gujarat, floated a tender seeking bids for services inter alia of supervisors, computer programmers, data entry operators, and electrician staff at 11 RTO check-posts. A few material clauses of the tender are set out hereinbelow:-
“2.5.5 Commercials
The Commercial Bids should strictly conform to the formats provided in Annexure 2 of this tender document.
2.5.6 Fixed Price
Prices quoted by the Bidder shall be fixed and no variation will be allowed under any circumstances during the entire period of the project. No open-ended Bid shall be entertained and the same is liable to be rejected straightaway.
2.8.3 Rejection of Bid
The hard-bound copy of Technical Bid Document shall be submitted in the form of printed document. Bids submitted by Telex, fax or email shall not be entertained. Any bid not secured in accordance with Clause 2.8 mentioned above, shall be rejected by COT without any further correspondence, as non-responsive. A bid that does not meet all pre-qualification criteria or is not responsive or not fulfilling technical evaluation shall be rejected by COT, and may not subsequently be made responsive by correction or withdrawal of the non-conforming deviation or reservation by the Bidder.
3.4.5
It shall be the responsibility of the Bidder to abide by the provisions of the labour welfare legislations, like The Payment of Wages Act, 1936, The Payment of Bonus Act, 1965, The Minimum Wages Act, 1948, The Equal Remuneration Act, 1976, The Payment of Gratuity Act, 1972, The Employees’ State Insurance Act, 1948, Contract Labor Act, 1970, The Workmen’s Compensation Act, 1923 and other similar legislations, rules, and orders as issued from time to time.
Annexure – 2 (Financial Bid)
Format for Financial Bid
Price Bid: (Financial/Commercial Bid submitted in physical form shall be liable for rejection. It should be submitted online only at https://www.nprocure.com)
Please provide price bid for supply of Man Power to be deployed at different Check-posts/CMC.
| Sr.No. | Particulars | Qty | Cost per person per month without tax | Total cost for 24 months without tax |
| 1 | Data Entry operator | 120 | ||
| 2 | Computer Engineer | 02 | ||
| 3 | Electrician | 12 | ||
| 4 | Supervisor | 12 | ||
| Total | ||||
| Additional Service Tax | % | |||
| Grand Total | ||||
1. Salary paid to the deployed manpower should not be less than the minimum wages published as per the notification issued by state govt. labour department or other statutory benefits applicable. In case of revision of minimum wages/DA by the labour department, agency would be entitled to get the revised rates from Commissioner of transport.
2. Break-up of salary for each category of employee should be provided indicating clearly the wages, DA, other mandatory statutory benefits & the service charges.
3. If the component of salary quoted is less than the minimum wages prescribed or the components of mandatory statutory benefits are not included in the break-up, the bid is liable to be rejected.
4. The quantity of manpower required may vary and the supplier may be asked to supply upto 25% extra manpower at the rate quoted above.
5. L1 will be decided on grand total.
Signature: Date:
Designation: Seal:”
3. The financial bids were opened on 10.12.2014. 9 bidders gave financial bids of which only three were qualified. The Appellant bid for a total amount of Rs.2,92,93,944/-; Respondent No.1 bid for Rs.2,77,68,000/-, and one Airan Consultants Pvt. Ltd. made a bid for Rs.3,03,83,184/-.
4. On 26.2.2015, the Technical Evaluation Committee, after taking into account the opinion of the Labour Department, arrived at a minimum wage figure of Rs.3,00,92,346/-. Inasmuch as both the Appellant as well as Respondent No.1 gave bids which were below this figure, (which would, therefore, be less than the amount required as minim
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