M/S N.B.S. Gurukul Institute Of Competitions Pvt Ltd Thr Its Ceo Raj Kumar v. State Of Punjab And ORS
!"#$ % &' Date of Decision: 11.01.2019 M/s NBS Gurukul Institute of Competitions Pvt. Ltd. .....Appellant versus State of Punjab and others .....Respondents &( )*&
+, +&
- + )*&
+
**- Present :
Mr. Aditya Dassaur, Advocate, for the appellant. **** , +&
- +%.' By means of this petition filed under Article 226 of the Constitution of India, the petitioner has approached this Court seeking a writ of certiorari for quashing the tender summary report whereby the technical bid submitted by the petitioner along with respondent No.4 with whom he entered into a consortium agreement has been rejected on the ground of incomplete documentation. A further writ of mandamus has been claimed to command respondents No.1 and 2 to accept the technical bid of the petitioner and to permit him to participate in the financial bid. 2.
The petitioner is a private limited company incorporated under the Companies Act, 1956. Respondent No.24 I.K.Gujral Punjab Technical University, Kapurthala, invited bids for providing On Screen Marking of Answer Books to manage the examination related activities in a scientific and secured manner. The duration of the contract was specified as six months which was liable to be extended up to three years.
3.
Clause 1.3 of the Notice Inviting Tender contained a stipulation that the bid by consortium consisting of two parties was permitted with the following conditions:4 i) One party shall be termed as Primary bidder and the second shall be Secondary bidder.
ii) A consortium agreement shall be submitted along with Tender Application defining the roles of both parties along with their company registration details.
iii) The Consortium agreement must define only one of the above two parties as Single Point of Contract who will sign the agreement with the client, receive payments and coordinate for all purposes.
iv) The qualification criteria are to be met by the primary bidder only.
4.
Similarly qualification criteria was also prescribed in clause411 of 4.4 Instructions to Tenderers which prescribes the following minimum qualification criteria for being eligible to participate in the bid:4
!
"
# $%
%
#
$
- " $
"
. % /
0 .1
2 ! % %
%
#&'(#&)* #&)(#&+* #&+(#&,
0!.2
%
% "
0"
$
3 ! %
%
4 ! %
%
4 #&, $
- *
" $
"
' . !0 #+&&5#&
6 !
"
! %
7
!0 #+&&5#& "
) !
1
%
8
!
1
%
6
!
%
+ . 4 0!. 4
! % 4 0!. 4
"
5.
As already noted above, clause 1.3(4) of the NIT clearly provided that minimum qualification criteria is to be met by the primary bidder only. From a perusal of the aforesaid facts it is clear that if a bid was to be offered by consortium of two parties then the consortium agreement was to define as to which of the two parties are primary bidder and secondary bidder. Admittedly the petitioner and respondent No.4 entered into a consortium agreement wherein the petitioner was specified as primary bidder and respondent No.4 as secondary bidder. 6.
On analysis of the bid documents submitted by the petitioner and respondent No.4, the technical bid was found to be non4responsive on account of the fact that the prescribed minimum qualifications were not met by the petitioner who admittedly was a primary bidder and thus the technical bid was held to be non4responsive. This information was duly communicated to the petitioner through e4mail which reads as under:4 9: /
*4
5( !
;-! < 1
"
- =
" ;3 ) ;' + ;#*9 7
>$
! ""
!0#+&&5#& 6 !
> % ;-!< 1
"
# ?1 !
. :
%
@ ! *; 1 % A 7
%
* &&#&B #.
% C 7.
The e4mail was responded to by the petitioner by submitting a reply which is on record as Annexure P45. A perusal of the same goes to show that the fact that the petitioner was a primary bidder and respondent No.4 a secondary bidder was not denied therein. Nor any explanation was submitted with respect to the objection that the petitioner being a primary bidder in accordance with the terms of the NIT was to confirm the minimum prescribed qualifications which were lacking. 8.
Learned counsel for the petitioner vehemently contended that since the consortium of petitioner and respondent No.4 jointly met all the eligibility criteria, hence the technical bid has wrongly been held to be non4 responsive. It is next contended that the e4mail submitted by the petitioner has been rejected on vague grounds without specifying any reasons and is bad in law.
9.
We have considered the arguments advanced by learned counsel for the petitioner.
10.
As already stated hereinabove, the NIT clearly required the primary bidder to confirm the prescribed necessary qualifications and thus even if the consortium of petitioner and respondent No.4 jointly met all the
eligibility criteria, the bid offered cannot be said to be in accordance with the terms of the NIT and thus the argument has no legs to stand. In so far as the second argument is concerned that no reasons have been assigned for rejecting the technical bid, the same stands belied from the record itself. The copy of the e4mail quoted hereinabove sent to the petitioner filed as Annexure P44 clearly specify the reasons for holding the technical bid to be non4responsive.
11.
It was next contended that condition was only ancillary and not essential and thus any deviation there from was not so fatal so as to hold the bid non4responsive.
12.
There can be no two opinions that tender conditions are binding upon both the agency which invites bids as well as the tenderer/bidder. Yet the courts have had occasion to consider the issue whether all the conditions specified in the NIT are to be strictly complied or some of the conditions specified are only ancillary and not so essential, the non4complince whereof can be said to be so fatal to the bid/tender so as to warrant its rejection on that score. While considering this issue, Hon'ble Apex Court in
!"
#
# $
!
%$ $' + "/ -has observed as under:4 9$
%
% %
*
4 % %
7
4 D
4 4
4
2 %
7
%
> 13.
The same view was reiterated in %
& '
( #
) * +
, - !
.
*
, /It was a case where there was an omission to mention the figure of excise duty in the bid by the bidder. The Court held it to be not in respect of essential conditions so as to warrant rejection of the tender. 14.
Thus the requirement in a tender notice can be classified into two categories one which lay down the essential conditions of eligibility and the others which are mere ancillary or subsidiary with the main object to be achieved by the condition. In the first case, the authority issuing the tender is required to enforce them rigidly. In the other cases, it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases.
15.
One of the tests to determine whether the condition is one that is essential and to be followed rigidly or is just ancillary can be whether the shortcoming or the condition which is lacking can be cured without bringing any substantial change in bid documents by supplying the actual or correct information which was found to be lacking.
16.
In 0 1
+-
,
!
2/3where the bid of a party was treated as non responsive because there was a change in the consortium membership and failure to incorporate joint and several liability clause for the consortium clause in the consortium agreement. According to the respondents the party had used
words "Joint and several responsibility" instead of the words "joint and several liability". The Supreme Court observed that though the word "responsibility" is different from the word "liability" and the term "joint and several liability" was required to be incorporated in the consortium agreement, there was no merit in the contention that only the word "liability" ought to have been used since it constituted an objective criterion. The Court observed that it was a curable defect.
17.
However, the violation of a condition in the NIT prescribing the essential qualifications cannot be held to be a condition which is only ancillary and not essential. It may be relevant to refer to the judgment of the Hon'ble Apex Court in case & +
- ( + !
( %
4
4*!
( %
!
5 * + *
63 wherein a condition of having minimum five years experience of running a registered second class hotel/restaurant was held to be one of the essential condition and awarding the contract to someone who did not fulfill the condition was held to be discriminatory since it excluded other persons similarly situate from tendering for the contract. It may be relevant to extract paragraph434 of the aforesaid judgment which reads as under:4 9 * *% %
$
3
2 %%
% 4* E
4
E
3* 4 4
%
4 7
"
%
' F/ 4
E
4
%
2
2
%
*
*
4
/ 44
"
$
4 (
"
4 4 4 * E
4
4
E
34
4 4
* E
%2
%
*
E
3 ? E
E
3 % % ' F /
"
*
7
%
*
*4 % ' F /
"
* 4 4 4
% 4
E
3
* 4
7
% F/
E
E
3*%
* 4
*
/
4
4
E
3 4*
*
%
%
% 7
"
%4
>
18.
There can be no manner of doubt that minimum qualification criteria prescribed in the NIT would fall under the category of essential conditions of eligibility which is to be strictly followed and violation of the same would not tantamount to just a technical irregularity having little or no significance which could be waived. Any waiver of an essential condition would not only be arbitrary but also discriminatory to many identically situated which may not have submitted the bid having thought that they are precluded from doing so for want of minimum prescribed qualification criteria.
19.
In view of the factual legal position discussed hereinabove since the bid submitted by the petitioner was in violation of the conditions specified in the NIT which was falling within the ambit of essential conditions, violation whereof would essentially result in rejection of the bid. Thus no fault can be found with the decision of the respondents' authorities in holding the technical bid, for the said reason, as non4responsive and the same does not require any interference.
20.
The writ petition is devoid of merits and accordingly stands dismissed.
!"#$%&'! Whether speaking/reasoned √Yes/No Whether reportable √Yes/No