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TMI Blog2019 (11) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... ledgement on 27/12/2018 informing him that his bid has been received. The petitioner's further contention is that as per Clause 6.2 of the tender conditions, the price bid was to be opened at the second stage only after completion of evaluation of Part I (Techno Commercial Bid) of the tender. The petitioner has stated that the petitioner Company was shocked to receive a communication via e-mail on 6/3/2019 disqualifying the petitioner even before opening of the price bid on the ground that the petitioner has deviated from the conditions under the price bid head. The petitioner has raised various grounds before this Court and has placed heavy reliance upon the purchase manual issued by the Directorate of Purchase and Stores, Department of Atomic Energy and his contention is that the bid submitted by him was in consonance with the aforesaid manual. The contention of the petitioner is that the action of the respondents in disqualifying the petitioner is arbitrary and is also violative of Article 14 of the of the Constitution of India, hence, rejection of the petitioner's bid is bad in law. It has been further stated that the order passed by the respondents in disqualifying the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f PBBG. 04. It has been further stated that on examination of bid submitted by the petitioner it was found that the offer was not complying with the tender conditions, as in techno commercial part, in the additional attachment the bidder had indicated that the GST applicable will be 18% and price basis is ex-works. The bidder has also indicated 30% payment in advance along with the order and balance 70% payment before despatch. It has been stated by the respondents that GST 5% is applicable for the product when purchase by DPS for RRCAT. The respondents have further submitted that in view of the aforesaid deviations to the NIT terms; a mail communication dated 6/3/2019 was issued to the petitioner conveying rejection of their bid and, therefore, the rejection of the bid was fair and reasonable and the decision cannot be treated as arbitrary. 05. The stand of the respondents is that the petitioner's bid was not in consonance with the terms and conditions of the tender document and as per the terms of the tender, after evaluation of part I techno commercial bid, the part II ie., price bid is opened. The respondents have stated that the petitioner has quoted GST @ 18% in their a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been stated that the terms and conditions mentioned at Clause 45.1 of eDPS-0-103 version 2018-2, provides "in case the bidder does not accept the terms and conditions stipulated in the NIT, their bid will be outrightly rejected". It has been stated that the price bid template attached to NIT contained the following instructions as header notes : (a) The GST as applicable on basic price shall be admitted by the purchaser and bidders shall not indicate / include rate of GST anywhere in the price bid; (b) Whenever "O" is indicated, the column is blocked by purchasers. Unless specifically called for, documents related to cost / price of blocked columns should not be attached by the bidder, failing which the bid shall be summarily rejected. (c) Offers will be summarily rejected, if price bid template and check-list template are not filled properly. Bids indicating price, GST etc., in irrelevant places will be summarily rejected. (d) The nature of price to be indicated by the bidder shall be : (i) For bids in INR; Safe delivery upto consignee. (ii) For bids in foreign currency; (a) Shipment by sea - FOB port of shipment (b) Shipment by Air - FCA at the specified gateway ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by air: FCA at the specified gateway airport Price terms mentioned in their offer as Ex-Works. 3 Sr.No.6 of price bid template Offers will be summarily rejected, if price bid template and checklist template are not filed properly. Bids indicating price, GST, etc., in irrelevant places will be summarily rejected. They have deviated by indicating 1 and 2 above 4 Revised template e-DPS-P-103 version 2018-2 uploaded to the subject tender on 21/12/2018 which is in advance of due date ie., 31/12/2018 They have referred old version while uploading their offer. 13. In the light of the aforesaid deviations, the respondents have rightly rejected the petitioners tender. The scope of interference in the tender matters is quite limited. 14. The apex Court has time and again dealt with the issue of interference in the matter of award of contract. The apex Court in the case of Manohar Lal Sharma Vs. Narendra Damodardas Modi (Writ Petition (Criminal) No.225 of 2018, decided on December 14, 2018) in paragraphs No.7 and 8 has held as under:- "7. Parameters of judicial review of administrative decisions with regard to award of tenders and contracts has really developed from the increase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the Court can examine the decision making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process the Court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither interim or final, may hold up public work for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. The Court before interfering in tender or contractual matters in exercise of power of judicial review, should restrict its inquiry to whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that no responsible authority acting reasonably and in accordance with relevant law could have taken it; and whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226. 20. A similar view has been taken by the apex Court in the case of Central Coalfields Ltd. Vs. SLL-SML Joint Venture Consortium and Others reported in (2016) 8 SCC 622. Paragraph No.43 of the aforesaid judgment reads as under:- "43. Continuing in the vein of accepting the inherent authority of an employer to deviate from the terms and conditions of an NIT, and reintroducing the privilege-of-participation principle and the level playing field concept, this Court laid emphasis on the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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