W.P.(C)/13994/2019 of AMIT KUMAR Vs UNION OF INDIA

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+W.P.(C) 13994/2019 & C.M. 55922/2019 & CM No.55921/2019

AMIT KUMAR

..... Petitioner

Through:Mr. Aditya Goel and Ms SrishtiBansal, Advocates.Bansal, Advocates.

versus

UNION OF INDIA

..... RespondentThrough:Mr. Bhagvan Swarup Shukla,CGSCwithMr.NikhilBhardwajandMr.SarvanKumar Shukla, Advocates.CGSCwithMr.NikhilBhardwajandMr.SarvanKumar Shukla, Advocates.

CORAM:HON'BLE MR. JUSTICE VIBHU BAKHRUHON'BLE MR. JUSTICE C.HARI SHANKAR

O R R27.12.2019

VIBHU BAKHRU, J

1.The petitioner has filed the present petition, inter alia, prayingthat the respondent be directed to consider the petitioner’s bid submittedpursuant to the tender floated by the respondent for the procurement ofUniform and Kit Bag for participants for the Republic Day ParadeCamp, 2019-2020.

2.The respondent had issued notice dated 10.12.2019, invitingtenders from eligible bidders to supply Uniform and Kit Bag forparticipants of the Republic Day Parade Camp to be held from 1[st]to 31[st]January, 2020. The said tenders were to be submitted online. The lastdate and time for submission of the tenders was fixed as 12.30 PM on23.12.2019. The technical bids were to be opened on 24.12.2019 or, anysubsequent day/time in the presence of bidders. Financial bids of thosebidders qualifying the technical bid were scheduled to be opened on26.12.2019.

3.The bids were opened as scheduled. The technical bids wereopened on 24.12.2019 and the financial bids were opened on26.12.2019.

4.The petitioner’s bid was rejected on the ground that he had notcomplied with the tender conditions by submitting the necessaryundertaking declaring that he/his firm had never been blacklisted by anyMinistry/Department/Office/Organisation of the Government of India.Thus, his financial bid was not opened.

5.Clause 6 of the Tender Conditions specifically listed thenecessary documents to be furnished by the eligible bidders. The saidclause is set out below:

“5. Documents for Technical Bid:-

(a) Earnest Money Deposit (EMD)

(b) Self-attested copy of the PAN card

(c) Income Tax Return filed for the last

financial year (i.e. A.Y 2019-20)

(d) Experience Certificate

(e) Goods and Service Tax RegistrationCertificateCertificate

(f) Sample to be enclosed

(g) Undertaking declaring that the firm hasneverbeenblacklistedbyanyMinistry/Department/office/organizationof Government of India.”neverbeenblacklistedbyanyMinistry/Department/office/organizationof Government of India.”

6.Thus, undisputedly, the petitioner was required to submit hisundertakingthathehasneverbeenblacklistedbytheMinistry/Department/office/organization of Government of India.Concededly, the petitioner did not furnish an undertaking in theaforesaid terms. He submitted certificate stating as under:

“NSIC: NSIC/GP/WAZ/2014/0009233

TO WHOM SO EVER IT MAY CONCERN

THIS IS TO CERTIFY THAT THE FIRM OR ITSPROPRIETOR HAS NOT BEEN BLACK LISTED BYANY STATE GOVERNMENT DEPARTMENT ANDTHATNOCRIMINALCASE/COMPLAINTISPENDING OR REGISTERED AGAINST OUR FIRM ITSPROPRIETOR ANYWHERE IN INDIA

THANKING YOU,

YOURS FAITHFULLY,

FOR SAGAR INTERNATIONAL

(Signature of proprietor)”

7.Admittedly, the above certificate was not in conformity with thetender conditions. The fact that the petitioner’s bid was rejected wasinformed to the petitioner by letter dated 26.12.2019.

8.The learned counsel appearing for the petitioner states that eventhough the petitioner had not submitted the undertaking as required;nonetheless, his bid should be considered since he complied with thenecessary eligibility criteria, inasmuch as, neither he nor his firm hasbeenblacklistedbyGovernmentofIndiaoranyofitsdepartment/organisations. He relied on M/s Supreme InfrastructureIndia Limited v. Rail Vikas Nigam Limited and An.: W.P. (C)3817/2012 decided on 12.12.2012, in support of his contention that acommon sense approach is required to be taken while evaluatingtenders.

9.It is now well settled that tender conditions have to be strictlycomplied with. Since, in the present case, it is admitted that thepetitioner has not complied with the tender conditions, inasmuch as, hehad not submitted an undertaking as required; this Court does not findany fault in rejecting the bid of the petitioner by the Tender EvaluationCommittee.

10.The Supreme Court in Central Coalfields Limited and Another.vs SLL-SML (Joint Venture Consortium) and Others: (2016) 8 SCC622 has expressly held that the question regarding whether the bidderhas complied with the tender condition must be looked from the point

of view of the employer. The Court held that whether term of the NITis essential or not, is decision to be taken by the employer and thecourts would not be justified in questioning the decision of theemployer. The relevant extract of the said decision is set out below:

“47. The result of this discussion is that the issue of theacceptance or rejection of bid or bidder should be looked atnot only from the point of view of the unsuccessful party butalso from the point of view of the employer. As heldin RamanaDayaramShetty [RamanaDayaramShetty v. International Airport Authority of India, (1979) 3SCC 489] the terms of NIT cannot be ignored as beingredundant or superfluous. They must be given meaning andthenecessarysignificance.Aspointedoutin TataCellular [Tata Cellular v. Union of India, (1994) 6 SCC 651]theremustbejudicialrestraintininterferingwithadministrative action. Ordinarily, the soundness of the decisiontaken by the employer ought not to be questioned but thedecision-making process can certainly be subject to judicialreview. The soundness of the decision may be questioned if itis irrational or mala fide or intended to favour someone or adecision “that no responsible authority acting reasonably andin accordance with relevant law could have reached” as heldin Jagdish Mandal [Jagdish Mandal v. State of Orissa, (2007)14 SCC 517] followed in Michigan Rubber [Michigan Rubber(India) Ltd. v. State of Karnataka, (2012) 8 SCC 216] .

48. Therefore, whether term of NIT is essential or not is adecision taken by the employer which should be respected.Even if the term is essential, the employer has the inherentauthority to deviate from it provided the deviation is madeapplicable to all bidders and potential bidders as heldin RamanaDayaramShetty [RamanaDayaram

Shetty v. International Airport Authority of India, (1979) 3SCC 489]. However, if the term is held by the employer to beancillary or subsidiary, even that decision should be respected.The lawfulness of that decision can be questioned on verylimited grounds, as mentioned in the various decisionsdiscussed above, but the soundness of the decision cannot bequestioned, otherwise this Court would be taking over thefunction of the tender issuing authority, which it cannot.”

11.The Supreme Court referred to the decision of the Privy Councilin Nazir Ahmad vs King Emperor: (1936) AIR PC 253 (2) and held asunder:

“52. There is wholesome principle that the courts have beenfollowing for very long time and which was articulatedin NazirAhmad v. KingEmperor [NazirAhmad v. KingEmperor, AIR 1936 PC 253 (2) : (1935-36) 63 IA 372 : 1936SCC OnLine PC 41] , namely: (SCC OnLine PC)

“… where power is given to do certain thing in certainway the thing must be done in that way or not at all. Othermethods of performance are necessarily forbidden.”

There is no valid reason to give up this salutary principle or notto apply it mutatis mutandis to bid documents. This principledeserves to be applied in contractual disputes, particularly incommercial contracts or bids leading up to commercialcontracts, where there is stiff competition. It must follow fromtheapplicationoftheprinciplelaiddownin NazirAhmad [Nazir Ahmad v. King Emperor, AIR 1936 PC 253 (2): (1935-36) 63 IA 372 : 1936 SCC OnLine PC 41] that if theemployer prescribes particular format of the bank guaranteeto be furnished, then bidder ought to submit the bankguarantee in that particular format only and not in any otherformat. However, as mentioned above, there is no inflexibilityin this regard and an employer could deviate from the terms ofthe bid document but only within the parameters mentionedabove.”

12.The decision in the case of Supreme Infrastructure IndiaLimited (supra) is of little assistance to the petitioner. In that case, atypographical error had crept in the price quoted by the petitioner.Although the total price for the quantity of steel to be supplied, whichwas the multiple of the unit price and quantity, was correctly quoted,the quantity to be supplied had been inadvertently quoted as the unitprice. It is in this context that the court had held that basic common-sense approach cannot be thrown to the winds and the employer cannotshut its eyes to obvious errors. The said decision is not an authority forthe proposition that an employer is bound to consider and evaluate thetender even though the bidder has not furnished the same in conformitywith the terms of the invitation to tender.

13.It is also relevant that the financial bids have already beenopened. In view of this and considering the fact that the petitioner hadadmittedly not furnished the documents as required, this Court does notconsider it appropriate to interfere with the respondent’s decision ofrejecting the bid of the petitioner. The petition is accordingly dismissed.

14.The pending applications are also disposed of.

VIBHU BAKHRU, J

DECEMBER 27, 2019jitender

C.HARI SHANKAR, J