M/S Rohtash Kumar And Co. v. State Of Haryana And ANR
Civil Writ Petition No. 15728 of 2018 1
Civil Writ Petition No. 15728 of 2018 Date of Decision: 06.08.2018 M/s Rohtash Kumar .....Petitioner versus State of Haryana and another .....Respondents
Present :
Dr. Anmol Rattan Sidhu, Sr. Advocate with Mr. Bhupinder Ghai, Advocate for the petitioner. Mr. Sharad Aggarwal, Assistant Advocate General, Haryana. Mr. K.K.Gupta, Advocate, for respondent No.2. ****
Petitioner a partnership firm duly registered under the Indian Partnership Act with the Registrar of Firms and Societies, Kurukshetra and carrying on business in the name and style of M/s Rohtash Kumar and Company has invoked the extra ordinary jurisdiction conferred upon this Court by virtue of Article 226 of the Constitution of India challenging the order dated 20.06.2018 whereby the technical bid offered by the petitioner for handling transport contract was rejected. A further writ of mandamus has been claimed to command respondent No.2 for considering the technical bid offered by the petitioner and to permit to participate in the tender process by opening the financial bid offered by it.
2.
Facts necessary for adjudication of the controversy raised can be summarized in brief as under:7 Respondent No.27Food Corporation of India at Panchkula, Haryana, in the month of May72018 invited tenders for the appointment of
Civil Writ Petition No. 15728 of 2018 2 loading/unloading/handling and transport contractor at its depots godowns and rail heads. As per the Notice Inviting Tender (for short hereinafter referred to as 'NIT'), the bidder was required to download the tender documents and submit the tender online under two bid system. Accordingly, the petitioner firm downloaded the tender form from the website and submitted its tender for various godowns and rail heads situated in the State of Haryana separately including Kaithal, in respect whereof the technical bid has been rejected which is under challenge in the present petition.
3.
On 20.06.2018, the petitioner received an e7mail from respondent No.2 informing that he is disqualified for violating clause 21 of the NIT and clause 3(ii) of Model Tender Form (for short hereinafter referred to 'MTF'). For ready reference, the aforesaid e7mail received by the petitioner is extracted hereunder:7
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Civil Writ Petition No. 15728 of 2018 3 5.
Clause 3(ii) of the MTF reads as under:7
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6.
At this stage, it may be relevant to quote the instructions for submitting the tender contained in paragraph75 of the General Information to Tenderer. The same read as under:7
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In pith and substance, the technical bid of the petitioner was rejected for two reasons: 7 (i) for not uploading the duly filled Appendix7VI thus violating clause 21 of the NIT and clause 3(ii) of the MTF and (ii) for having not mentioned in Appendix7II that the tender is being submitted for HTC Kaithal to Railhead, Kaithal, as it was only mentioned in Appendix7II HTC from Kaithal to Kaithal.
Civil Writ Petition No. 15728 of 2018 4 8.
Learned counsel for the petitioner submits that the technical bid of the petitioner has been rejected and he has been disqualified for hyper technical reasons inasmuch as all the experience certificates were attached by the petitioner7firm along with the tender form issued by various branch officers of respondent No.2 itself. It is further pointed out that once the experience certificates were attached along with the tender form which were total 15 in number given on their own letter heads and thus merely because the details of the experience have not been mentioned in Appendix7VI, should not lead to the conclusion that there was a violation of any of the terms and conditions of the NIT or MTF. The required documents since were already attached with the tender form, failure to mention them in Appendix7VI was not such a serious lapse so as to reject the technical bid. 9.
It is next contended that similar omissionto mention the word 'Railhead' before Kaithal in Appendix7II would also not tantamount to violation of any mandatory condition of either the NIT or MTF so as to entail a serious consequence of rejection of the technical bid. It is also submitted that otherwise the technical bid submitted by the petitioner was found to be in order insofar as fulfilling the qualification, experience, financial capability and other prescribed conditions are concerned. It is also submitted that none of the alleged violations can be said to be of any mandatory condition of eligibility as the requirements which were wanted in the tender document submitted by the petitioner were merely ancillary or in other words subsidiary and thus the authorities cannot be said to be justified in insisting upon strict or literal compliance of the said conditions. 10.
In the backdrop of the above facts and discussion, the issue which arises for our consideration is whether the alleged violation of the conditions would tantamount to violation of essential conditions of
Civil Writ Petition No. 15728 of 2018 5 eligibility so as to reject the technical bid of the petitioner or the nature of the conditions which are alleged to have been violated is such which were only ancillary or subsidiary and the authorities cannot be said to be justified in insisting upon a strict or literal compliance of such a condition. 11.
Per7contra, learned counsel appearing for the Food Corporation of India vehemently contended that the conditions violated by the petitioner while submitting the tender documents were the essential requirements to be filled in in the tender documents and since the petitioner committed folly by not providing requisite information in the prescribed format, no fault can be found with the rejection of his technical bid. 12.
We have considered the arguments advanced by learned counsel for the parties and have carefully gone through the entire pleadings. 13.
General Information to Tenderers attached to the tender form provides for the procedure of submission of tender which is contained in clause78 and the same reads as under:7
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A perusal of the aforesaid specified procedure for submitting the tender goes to show that it was to be submitted on7line in two parts i.e. technical bid and price bid. All the supporting documents except tender document were to be scanned and uploaded in technical bid. One of the essential conditions prescribed under Clause 8(g) was that the tenders which were not accompanied by all the schedules/annexures intact and duly filled in and signed may be ignored.
15.
A copy of the tender form submitted by the petitioner along with the forwarding letter and appendix has been filed as Annexure P73. A perusal of the same goes to show that it is not accompanied by Appendix7VI. As a matter of fact, Appendix7VI wherein the petitioner was required to
Civil Writ Petition No. 15728 of 2018 7 furnish information with regard to experience certificates is totally missing and was not at all submitted by the petitioner. Only experience certificates, the details of which were required to be filled in Appendix7VI, are attached. There is also no such averment in the pleadings that duly filled in Appendix7VI accompanied the tender documents submitted by the petitioner.
16.
Thus in effect the tender document submitted by the petitioner was incomplete and totally in violation of clause 8(g) of the General Information to Tenderers which provides that the tenders are not accompanied by all the schedules/annexures intact and duly filled in and signed are liable to be ignored.
17.
Learned counsel for the petitioner referring to the pronouncement of the Hon'ble Apex Court in
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18.
In our considered opinion, the case law being relied upon by the petitioner is of no avail to him inasmuch as the ratio of the said decision is not at all attracted to the facts of the present case. The case in hand is not one of violation of any terms and conditions of the tender as such we are not required to enter into the issue as to whether the conditions alleged to be violated are mandatory or only ancillary. This is a case where incomplete tender form has been submitted by the petitioner which was liable to be ignored as per the procedure prescribed for submission of the tender.
Civil Writ Petition No. 15728 of 2018 8 19.
In view of the above facts and discussion, the tender submitted by the petitioner being incomplete, we do not find any illegality in the impugned action of the respondents in rejecting the technical bid of the petitioner and disqualifying him from participating in any further proceedings of the tender. The writ petition accordingly fails and stands dismissed7in7limine.
In the facts and circumstances of the case, we do not make any order as to costs.
Whether speaking/reasoned √Yes/No Whether reportable √Yes/No