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TMI Blog2019 (9) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... electronically on the e-procurement portal of the government of Bihar and also in print in national newspapers on 24.06.2018 with the seal and signature of Managing Director, Patna Smart City Limited, Patna (hereinafter referred to as 'PSCL' for short. Five Bidders submitted their tenders who are: A. Larsen & Toubro Limited (Petitioner) & Consortium Partner M/s Fluent Grid Ltd. B. Tara Projects Limited (Respondent no. 4) &Consortium Partner M/s Wipro C. Shapoorji Pallonji & Consortium Partner M/s. Schneider Electric + CMS Ltd. D. Bharat Electronic Ltd. (BEL) & Consortium Partner M/s Horizon Technologies + Sofrtech Engineers Ltd. E. Bharat Sanchar Nigam Ltd. (BSNL) & Consortium Partner M/s Hitachi + Rolta + Vantage. The Bid of all the five tenderers were evaluated by PSCL appointed ICT expert of Project Management Consultant and also the tender committee based on the pre-qualification and technical qualification criteria as mentioned in the Request for Proposal ('RFP' for short). Minimum 70 marks were required out of 100 to qualify technically and all the five tenderers were declared successful in Technical Proceeding for the tender document dated 12.12.2018 to 13.12.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.21 of RFP. The nature of discrepancy and to what extent and how the discrepancies could be permitted to be removed have been exhaustively laid down in sub-clause a), b) and c) of Clause 2.21 of the RFP and beyond the three circumstances laid down under Clause 2.21, authorities had no discretion to allow bidders to correct/remove any other aspect of the Total Price Summary. Authorities, therefore could not have permitted respondent no. 4 to change its Total Price Summary in the garb of exercising discretion under Clause 2.21 of the RFP. Since the price bid submitted by respondent No. 4 was quoting a higher amount than what the petitioner had submitted, there was no scope for even considering the same, let alone or allowing respondent No. 4 to correct the same. To appropriately consider this submission of the petitioner's Counsel this Court would consider it useful to quote Clause 2.21 and Clause 8 of the Request For Proposal:- "2.21 Acceptance/Rejection of Bids a. PSCL reserves the right to reject in full or part, any or all bids without assigning any reason thereof. PSCL reserves the right to assess the Bidder's capabilities and capacity. The decision of PSCL shall be fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b) and c) as the same did not contemplate such discretion in the respondent authorities to allow alteration/modification of the price bid, to the prejudice of the highest bidder (L-1) i.e. the petitioner. Petitioner is the most suitable entity to execute the contract as it has executed 22 smart city projects through out the country. Terms and conditions in the RFP are fixed. Authorities, therefore, cannot be permitted to alter the same by their own perception of the same, and allow respondent no. 4 to change the Total Price Summary, earlier submitted as RFP did not provide for such opportunity. Mr. Sandeep Kumar has placed reliance on a very recent decision of the Apex Court in the case of Nabha Power Limited (NPL) vs. Pubjab State Power Corporation Limited (PSPCL) & anr. Reported in (2018) 11 SCC 508. He places specific reliance on para 49 onwards of the said judgment. Learned Senior Counsel appearing for the respondent Corporation has submitted that the clear and unambiguous requirement under Clause 8 and 8.1 of the RFP as regards total price summery for the process of evaluation for commercial bid is that the same is to be considered including the taxes, levies, duties etc. " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crepancies was not limited to illustration in Clause 2.21 a), b) and c). It is further understood from the reading of sub clause d) of Clause 2.21. Sub-clause d) of Clause 2.21 of RFP reads as follows:- "2.21.... d) If there is such discrepancy in an offer, the same shall be conveyed to the bidder with target date up to which the bidder has to send his explanations. On the above lines PSCL reserves the right to take appropriate decision which needs to be agreed by the bidder. If the bidder does not agree to the decision of PSCL, the bid is liable to be disqualified." Sub clause (d) provides the procedure by which the issue has to be dealt with. In accordance with the same an e-mail was sent to the petitioner as well as respondent No. 4 asking both of them to participate in the negotiation on 21.12.2018 with the employer. The respondent authorities by calling both bidders has demonstrated fairness and transparency in their actions and the allegations made by the petitioner company are factually unfounded, legally unsustainable and false. The proceeding of the meeting with the respondent officials on 21.12.2018 (Annexure D) to the counter affidavit filed by respondent Nos. 2 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCL, in support of his submissions has placed reliance upon the decision of the Apex Court in the case of Municipal Corporation, Ujjain & anr. Vs. BVG India Limited & ors. Reported in (2018) 5 SCC 462. He has placed specific reliance on para 11 to 16, 21, 26 and 27. He has submitted that purpose of judicial review is to ensure that parties are meted out fair treatment in furtherance of public interest and public purpose. Unless the Court is satisfied that there is a substantial public interest involved or that the discretion exercised by the parties while evaluating inter bid is mala fide the Court should not interfere under Article 226 of the Constitution of India in a bid between two rival tenderers. He has specifically relied upon para 21 of the judgment wherein the Apex Court has referred to the scope of judicial review vis a vis interference of superior courts in matters of award of contracts. He has emphacised (iii) of para 66 of the judgment in the case of B.S.N. Joshi and Sons Ltd. v. Nair Coal Services Ltd. Reported in (2006) 11 SCC 548, which reads as follows:- "(iii) if, however, a deviation is made in relation to all the parties in regard to any of such conditions, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elines were issued in furtherance of CVC Ordinance 1998, which clothed the CVC with powers and functions to exercise superintendence over vigilance administration of the various Ministries of the Central Government or Corporations established by or under any Central Act, government companies, societies and local authorities owned or controlled by central government. In this connection he refers to the opening lines of the guidelines (Annexure 7 series) of I.A. No. 1 of 2019. the respondent authorities in the instant case are authorities under the State Government and prima-facie do not come within the guidelines relied upon by the petitioner's Counsel. The authorities have acted in furtherance of public interest. The procedure was fair and transparent and within the discretion provided by the RFP. Laying emphasis on Clause 2.21 and 2.15 he submits that the component of taxes are not left to the discretion of either bidder or employer. It is important that whatever rate is applicable should be quoted to facilitate the employer to pass on the same to the concerned authorities. Accordingly a scope has been left to amend this component if there is any amendment in the rate of exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to remove discrepancy had not agreed to include GST at the rate applicable, the consequence may have been otherwise. Since respondent No. 4 had agreed, the intention of Clause 8 of the RFP was fulfilled. Entire exercise undertaken by the respondent authorities in selection of the lowest bidder by adopting a procedure which was described in Clause 2.21 of the RFP. Final decision of the respondent authorities therefore has only resulted in furtherance of public interest. Relaxation was granted for bonafide reasons and since terms of the RFP permitted such discretion to allow removal of discrepancy. The effect of the discretion is in public interest. No mala fide has been alleged. In the circumstances this Court should not interfere with the discretion exercised by the authorities which is impugned in the instant proceeding. He has also relied upon the decision of the Apex Court in the case of Afcons Infrastructure Limited vs. Nagpur Metro Rail Corporation Limited & anr. reported in (2016) 16 SCC 818. He has placed specific reliance on para 15 and 16 of the said judgment which are being reproduced herein:- "15. We may add that the owner or the employer of a project, having auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion inter se the parties. As far as the component of GST is concerned, the same was required to be included "as applicable". Admittedly, GST at the rate of 12% was applicable for the works in question at the time of evaluation of price bid. The requirement of GST "as applicable" clearly meant rate applicable. The scheme of the RFP is such that the price summary, insofar as it relates to GST, taxes and levies, is dependent upon the rate applicable. There was no discretion in the bidders or the employer to consider and include GST at a rate other than that which is applicable. Submission of total price summary including GST at a rate other than that which is applicable, therefore was a discrepancy. Likewise, petitioner did not have the option of submitting total price summary containing mounting structure with junction boxes lesser in number than what was required. Submission of such total price summary by the petitioners, therefore also constituted a discrepancy. Authorities were therefore correct in allowing rectification of such discrepancies in total price summary submitted by respondent No. 4 as well as the petitioners, after observing the procedure available in clause 2.21 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . West Bromwich Building Society [Investors Compensation Scheme Ltd. v. West Bromwich Building Society, (1998) 1 WLR 896 : (1998) 1 All ER 98 (HL)] and Attorney General of Belize v. Belize Telecom Ltd. [Attorney General of Belize v. Belize Telecom Ltd., (2009) 1 WLR 1988 (PC)] Needless to say that the application of these principles would not be to substitute this Court's own view of the presumed understanding of commercial terms by the parties if the terms are explicit in their expression. The explicit terms of a contract are always the final word with regard to the intention of the parties. The multi-clause contract inter se the parties has, thus, to be understood and interpreted in a manner that any view, on a particular clause of the contract, should not do violence to another part of the contract." In the instant case, parties, i.e. the petitioner, respondent No. 4 as well as the employer, in the process of evaluation of the total price summary have all considered the provisions of the RFP to allow removal of discrepancy. The three parties in view of the facts taken note of above have acted accordingly and participated in the process and both petitioner, as well as respon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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