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2017 (11) TMI 809 - HC - GSTDisqualification of petitioner - petitioner s bid treated as nonresponsive and ineligible on the sole ground that while submitting the bid the petitioner no.1 has not paid Goods and Services Tax to the respondent with the Bid/ Document Fee - at the time of submitting bid the petitioners made the payment of ₹ 18000/towards bid / document fees, however without GST @18% as demanded as per the tender document / notice - It is the case on behalf of the petitioners that thereafter, in absence of any information about the GSTIN of the respondent Corporation, the petitioner no.1 has made the payment of GST by depositing the amount as per reverse charge mechanism on 3.10.2017 at around 12.00 p.m within the time prescribed for the said purpose under law. Held that - At the outset, it is required to be noted that as such in the present case the petitioners are not considered to be tenderer at all by the respondent Corporation on non deposit of entire amount of bid document fee, which as such was required to be paid as per the terms and conditions of the tender document and nProcure document. It is required to be noted that as per nProcure document the party who submit its bid online was required to deposit / pay within the stipulated time the bid document fee/ bid processing fee of ₹ 21240/which includes GST at 18%. It is an admitted position that when the petitioners submitted its bid online and thereafter in physical format the petitioners did not pay the entire amount of bid document fee/ bid processing fee of ₹ 21240/and deposited only part of the bid document fee / bid processing fee i.e. ₹ 18000/only. At this stage, it is required to be noted that other two tenderers who submitted their bid, paid / deposited the entire document fee / bid processing fee i.e. ₹ 21,240/. Thus, in the tender consolidation details and nProcure tender consolidated details deposit of entire amount of document fee and EMD details was mandatory to be paid. It is an admitted position that as the petitioners did not deposit the entire bid document fee / bid processing fee at the time of submitting the bid / bid document and therefore, no such receipt in favour of petitioner has been generated like in the case of other two bidders who in fact paid the entire bid document fee / EMD and therefore, the petitioners are not considered at all tenderer / bidder and therefore, its bid has not been considered at the technical bid stage. The issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. The decision of the respondent Corporation in not treating and / or considering the petitioners as tenderer / bidder and in holding the petitioners ineligible even prior to technical bid stage, cannot be said to be perverse and / or arbitrary and suffering from vice of favoritism. The understanding on the part of the respondent Corporation with respect to applying relevant terms and conditions of the tender document and to treat and / or consider the deposit of bid document fee / bid processing fee and the EMD before relevant date as essential condition to be fulfilled and / or complied with the at the entry stage itself cannot be said to be perverse and / or arbitrary to the terms and conditions of the tender document. At this stage, it is required to be noted that as such there are no specific allegation of mala fide and / or favoritism. The petitioners was not required to deposit the amount of GST. The petitioners and others were required to deposit as such ₹ 21,240/towards bid document fee/ bid processing fee which includes GST amount at 18%. Therefore, there was no question of furnishing any details of GST registration / GSTIN, as now stated by the petitioners. At this stage, it is required to be noted even at the cost of repetition that other two bidders did deposit the entire amount of ₹ 21,240/and thereby complied with the relevant terms and conditions / essential conditions. What is required to be considered as payment of entire amount of bid document fee / bid processing fee and the EMD at the relevant time and before the prescribed period mentioned in the tender document. As observed herein above, such a requirement was required to be complied with the entry stage itself. As observed herein above, unless and until, entire amount of bid document fee/ bid processing fee and the EMD is deposited the persons who submitted bid would not get entry at all and only after the aforesaid amount is deposited / paid and receipt is generated, the concerned party can be said to be tenderer / bidder whose bid is required to be considered at technical stage and thereafter on fulfillment of other terms and conditions, its price bid is required to be considered. Petition dismissed - decided against petitioner.
Issues Involved:
1. Disqualification of the petitioner’s bid for non-payment of GST with the bid/document fee. 2. Whether the payment of bid/document fee including GST is an essential condition. 3. The scope of judicial review in tender-related matters. Issue-wise Detailed Analysis: 1. Disqualification of the petitioner’s bid for non-payment of GST with the bid/document fee: The petitioners challenged the decision of the respondent Corporation to disqualify their bid for not paying GST along with the bid/document fee. The petitioners argued that they had paid the bid/document fee of ?18,000 but did not pay the GST due to the absence of GST registration details from the respondent. They later attempted to rectify this by sending a demand draft for the GST amount and eventually paid the GST on a reverse charge basis. Despite this, their bid was disqualified, which they claimed was arbitrary and unreasonable. 2. Whether the payment of bid/document fee including GST is an essential condition: The respondent Corporation maintained that the payment of the full bid/document fee, including GST, was a mandatory requirement as per the tender terms. The petitioners’ failure to pay the full amount rendered their bid non-compliant. The Corporation emphasized that the bid document clearly stated the fee requirement, including GST, and all other bidders complied with this condition. The court supported the Corporation's interpretation, stating that the petitioners should have sought clarification if there was any ambiguity regarding the GST payment. The court also noted that the petitioners did not attend the pre-bid meeting where such queries could have been raised. 3. The scope of judicial review in tender-related matters: The court referred to several Supreme Court judgments to outline the limited scope of judicial review in contractual matters, especially in tender processes. The court emphasized that it should not interfere with the administrative decisions unless they are arbitrary, irrational, or mala fide. The court found that the respondent Corporation’s decision to disqualify the petitioners was neither arbitrary nor irrational. The requirement to pay the full bid/document fee, including GST, was considered an essential condition, and the Corporation’s decision to enforce this condition uniformly was justified. Conclusion: The court concluded that the petitioners’ failure to comply with the essential condition of paying the full bid/document fee, including GST, justified their disqualification. The decision of the respondent Corporation was found to be lawful, reasonable, and in accordance with the tender terms. The court dismissed the petition, upholding the Corporation’s decision to disqualify the petitioners’ bid.
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