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TMI Blog2011 (4) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... ncluding Maharashtra and Bihar, where bio-metrics of millions of people are required to be collected to ensure identification of the population which is targeted as beneficiaries of various Government Welfare Schemes, such as the National Rural Employment Guarantee Scheme. The Appellant Company has been holding ISO 9001:2000 Certificate for the highest quality standards in respect of the services rendered by it. The Appellant Company claims to have carried out a pilot project in respect of 10 shops in the State Government Public Distribution System in Bhopal. 3. On 12th December, 2009, the Government of Madhya Pradesh in the Department of Food, Civil Supplies and Consumer Protection, hereinafter referred to as FCS , issued a Request for Proposal, hereinafter referred to as RFP , for the appointment of a vendor for District Mechanism for Public Distribution System, hereinafter referred to as PDS . The last date for submission of bids was 7th January, 2010, which was subsequently extended till 17th February, 2010. 4. The RFP, as it stood at the time when the bids were invited, included Section 3.1 which, inter alia, provides that the bidder/one partner in the consortium must p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortium) should have an active (valid at least till June, 2010) ISO 9001:2000 certification at the time of the submission of the bid. The documents to be submitted along with the bid remained unchanged. 6. The question for decision in this case is whether, on account of the corrigendum whereby the provisions of Section 3 of the Tender documents and Section 7 of the Bidder s Check List were amended, the appellant was, disqualified from consideration, in view of the fact that along with the Tender documents it had filed, through inadvertence or otherwise, a copy of the ISO 9001:2000 certificate of the previous year, instead of the current year, although, it did have the said valid ISO 9001:2000 certificate at the time of making of the bid. 7. The case of the Appellant depends almost entirely on the submission that on the date of submission of the Bid, it had a valid and active ISO 9001:2000 certification, but that through inadvertence the expired certification of the previous year had been filed along with the bid papers. 8. Mr. Harish N. Salve, learned Senior Advocate, appearing for the Appellant Company, submitted that even if no ISO 9001:2000 certification was filed along wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crores less than the second-lowest tenderer to whom the contract was ultimately given and that by awarding the contract to the second lowest tenderer, the State of Madhya Pradesh was incurring a loss of such a huge amount. 11. Mr. Salve urged that the aforesaid position would be further strengthened from Section 3 of the Request for Proposal which contained the prequalification (eligibility) criteria relating to technical, operational, functional and other requirements. Mr. Salve submitted that Clause 3 of Section 3.1 provides that the bidder/one partner in the consortium must possess a valid certification in the Capability Maturity Model, which condition had been duly satisfied, and that all the partners of the consortium (in case of consortium) should have an active (valid at least till June, 2010) ISO 9001:2000 certification, at the time of submission of the bid. Mr. Salve submitted that all those documents to be submitted as qualifying documents, included the Quality Certificate and ISO 9001:2000 certificate, and if the said condition is read with the conditions contained in Clause 9 of Section 7.1.1 of the RFP, it would be seen that the requirement of a valid ISO 9001:2000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Salve urged that whether it was sent to the Director s official E-mail address or his personal E-mail address, the fact remains that Shri Ajit Kesari had knowledge that the Appellant was in possession of a valid and active ISO 9001:2000 certificate at the time of submission of the Bid documents. 14. Mr. Salve also referred to the reply of Wipro Ltd. to the writ petition filed by the Appellant and pointed out that the manner and circumstances in which Shri Naveen Prakash had obtained the information that the Appellant Company held a valid ISO 9001:2000 certificate had been spelt out in Paragraph 5 of the said reply, which duly corroborated the fact that the same information had been passed on to Shri Kesari. 15. In support of his aforesaid submissions, Mr. Salve firstly referred to the decision of a Three- Judge Bench of this Court in Tata Cellular Vs. Union of India [(1994) 6 SCC 651], which laid down certain tests in regard to the right of the Courts to intervene in a Tender process. This Court, inter alia, held that while the Court does not normally interfere with the Government s freedom of contract, invitation of Tender and refusal of any Tender which pertain to policy mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued on 18th January, 2010, did not alter the position. He urged that the judgment of the Division Bench of the High Court, impugned in this Appeal, was liable to be quashed. 19. Appearing for the State of Madhya Pradesh, the learned Attorney General submitted that primarily four issues fall for the determination in the present case, namely, (i) What is the relevance of Section 7 of the Request For Proposal as far as this Court case is concerned? (ii) Does this case involve a mere mistake and is such a mistake fatal as far as the Appellant s bid documents are concerned? (iii) What is the significance of Shri Navin Prakash s attempts to obtain clarification about the Appellant having a valid ISO 9001 Certificate on the date of submission of bid documents? and (iv) Even assuming that the Appellant possessed a valid ISO 9001 Certification, was the same produced before the Respondents? Referring to Clause 3.1 of the RFP relating to Pre-qualification (Eligibility Criteria), the learned Attorney General submitted that both the CMM Certificate and the ISO 9001:2000 Certificate were listed as documents to be submitted as qualifying documents and that the criteria set out in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sure that the renewed certificate is made available at the time of signing the contract. In case the same is not provided, the Department may consider negotiating the award of contract with the L2 Bidder. 21. The learned Attorney General then contended that even the said provision was replaced by a fresh corrigendum, wherein in paragraph 3 of the provision relating to Turnover it was differently provided as follows:- 3. The Bidder/one partner in the consortium must possess a valid Certification in the Capability Maturity Model (CMM Level 3 or above). In case of consortium, the partner developing the Software Application should have CMM Level 3 Certification. The Bidder/Lead Partners of consortium (in case of Consortium) should have an active (valid at least till June 2010) ISO 9001:2000 certification at the time of submission of the bid. 22. The learned Attorney General urged that once the provisions relating to the Bidder s Response Form contained in Section 7.1 stood substituted by the Corrigendum and the provision relating to Quality Certification stood altered omitting the relaxation given regarding filing of documents with the tender papers, it was no longer open to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. Anr. [(2009) 11 SCC 9], where similar views had been expressed in relation to the acceptance of the lowest bid by the Respondent No.2 University, despite the fact that such bidder had failed to furnish pre-qualification documents within the specified time. This Court held that the judgment of the High Court setting aside the decision of the University was improper as the said tenderer was itself to blame as it was late in submitting the required documents by three days and the Respondent No.2 University was justified in not opening the tender submitted by it. This Court observed that the lowest tenderer could not make any grievance as the lapse was due to his own fault. This Court noticed that of the three bidders who had responded to the tender notice, one stood disqualified at the threshold and the lowest tenderer stood disqualified for having filed the requisite documents three days late. In effect, the Appellant in the said case ultimately turned out to be sole bidder and his bid was accepted, being the lowest among all the eligible bids. 27. Referring to the decision in the Tata Cellular case (supra), cited on behalf of the Appellant Company, the learned Attorney Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut an addition to what was already in existence. Mr. Shyam Divan reiterated the submissions made by Mr. Salve that the clause relating to filing of certificate of registration even at the stage of signing of the agreement was valid and capable of being acted upon. Mr. Divan contended that the only change which was effected by the Corrigendum in regard to the Bidder s response clearly indicated that the Corrigendum related only to the introduction of Lead Partners in case of Consortium and that in case of a Consortium, the partner developing the software application should have CMM Level 3 Certification. It was submitted that in any event, in the absence of clarity, the benefit should go to the Appellant and its bid ought not to have been rejected at the Technical bid stage. 32. Having considered the submissions made on behalf of the respective parties, we are inclined to accept the submissions made by the Attorney General that the introduction of the Corrigendum completely changed the provision in the Bidder s Response Form relating to submission of the Quality Certificate in the form of an active ISO 9001:2000 certification. In any event, the appellant s contention based on clau ..... X X X X Extracts X X X X X X X X Extracts X X X X
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