HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.25868 OF 2023
ORDER:
Heard learned counsel for the petitioner and learned counsel appearing for the respondents.
2. The petitioner approached the Court seeking the prayer as follows:
"To issue a writ of Mandamus or any other writ / order / direction declaring the action of the Respondents in not opening the financial bid of the Petitioner despite the petitioner satisfying the tender conditions in Tender No.C_SG_C_36_5_385 dated 26.06.2023 issued by 3rd respondent as illegal, arbitrary, highhanded and contrary to the settled position of law apart from being violative of Article 14, 19(1)(g) and Article 21 of Constitution of India and consequently direct the Respondents to open the financial bid of the Petitioner submitted by them pursuant to the said Tender Notification and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."
PERUSED THE RECORD
3. The case of the petitioner, as per the averments made in the affidavit filed by the petitioner in support of the present writ petition, in brief, is as follows:- 2
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a) The petitioner is a private limited company, which deals with the manufacture of Vital Safety Relays and also executes Railway Signalling interlocking projects, involving Relay Logic and Computer based interlocking (CBI) or Electronic Interlocking (Ei). The petitioner pursuant to the tender No.C_SG_C_36_5_385 dated 26.06.2023 with issued by the 3rd respondent, pertaining to "Comprehensive signalling and telecommunication works for provision of automatic block signalling system in Mandamari-Peddapalli jn Section of Secunderabad division in south central railway", the petitioner submitted technical and financial bid on 07.08.2023 with estimated cost of the tender being Rs.77,89,57,843,73/-.
b) As per the tender document, the technical bids of the participants would first be opened and those participants who qualify in the technical bid will then be short listed for the financial bid stage and then the financial bids of the short listed participants are opened and the bidders are sorted in ascending order. The pre-qualification bid opening date was on 14.08.2023 and the petitioner being qualified to take part in the tender process, downloaded the tender document and after verifying the eligibility criteria in Clause No.2.2 of the tender document, took part in the tender process. 3
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c) In accordance with clause 1.2.4 of the tender document, the petitioner submitted bid security for Rs.38,94,800/- vide BG Ref No.050-5523-bg-000-2350 dated 04.08.2023. As per the said clause the bidder will have to provide the bid security through e-payment Gateway of Authority or submit as Bank Guarantee Bond from a scheduled State Bank of India, Commercial Branch. The Bank Guarantee Bond shall be valid for a period of 90 days beyond the bid validity period.
d) The petitioner observed that during the submission of the bid, the petitioner has inadvertently mentioned the claim period of the bank guarantee submitted by the petitioner to be till 30.04.2024 instead of 30.04.2025. Then the 3rd respondent had sought clarification in this regard from the bank vide letter dated 18.08.2023 to which the bank has replied vide letter dated 21.08.2023 thereby indicating that the claim period of the Bank Guarantee submitted by the petitioner is until 30.04.2025. The petitioner informed the 3rd respondent vide representation dated 30.08.2023 that the petitioner had inadvertently mentioned the claim period of the Bank Guarantee submitted by the petitioner to be till 30.04.2024 instead of 30.04.2025. The SBI vide letter dated 4 WP_25868_2023 SN,J 21.08.2023 indicated that the claim period of the bank guarantee is till 30.04.2025.
e) Further the 3rd respondent has orally informed the petitioner that the petitioner's bid would be disqualified for the reason that the claim period of the bank guarantee submitted by the petitioner is mentioned as 30.04.2024 instead of 30.04.2025. The petitioner pointed out that it was eligible for taking part in the tender process and also the documents were scrutinized by the 3rd respondent and no objection was ever raised by them and also the 3rd respondent had sought clarification from the bank vide letter dated 18.08.2023 and had acknowledged the reply received from the bank vide letter dated 21.08.2023 indicating that the claim period of the bank guarantee submitted by the petitioner is till 30.04.2025. Therefore, the petitioner's bid cannot be rejected. The petitioner also addressed a representation dated 30.08.2023 to the 3rd respondent but the same has not been considered till date. The respondents informed the petitioner on 13.09.2023 that they will be opening the price bid on 16.09.2023 and that the petitioner's price bid would not be opened. Therefore, the present writ petition is filed. 5
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4. The counter affidavit has been filed by the respondents and in particular,, the relevant portion of paragraph No.4 and paragraph No.10 of the said counter affidavit reads as under:
"Whereas the petitioner submitted bank guarantee which is valid upto 30-04-2024 only and it is not in terms of Clauses 1.2.2 and 1.2.4 of the RFP (Request for Proposal). On this ground the present writ petition is liable to be dismissed.
With regard to para (11) it is submitted that the contention of the petitioner that the defect is curable or cured by the bidder then rejecting the entire bid of the participant amount to gross illegality and such rejections have been held to be fault as held by various Courts, is not applicable to the present case of the petitioner, since the technical bid is not yet finalised till date nor draft minutes are circulated among the Tender Committee Members."
5. A bare perusal of the contents of the letter dated 21.08.2023 reads as under:
"With reference to your mail and letter No.C/SG/C/36/5/385 dated 18.08.2023, we confirm having issued BG No.0505523BG0002350 for Rs.38,94,800/- in favour of beneficiary FA&CAO/CN/SC, South Central railway on behalf of M/s Hytronics Enterprises India Private Limited as on 04.08.2023. The claim period is till 30.04.2025. The beneficiary has the complete rights on the BG till 30.04.2025. The Bank 6 WP_25868_2023 SN,J has charged the Company (HEIPL) the fees applicable till 30.04.2025."
DISCUSSION AND CONCLUSION
6. The specific case of the petitioner is that the petitioner submitted a bid security of Rs.38,94,800/- as on 04.08.2023 vide bank guarantee No.0505523BG0002350 and the petitioner participated in the bid and made an application by duly offering the bid security from period 12.07.2023 to 30.04.2025 and the same had been confirmed in favour of the petitioner. But however, on the ground that the same is not in terms of Clauses 1.2.2 and 1.2.4 of the request for proposal, the same is not being considered by the respondents.
7. Further the case of the petitioner is that a mistake crept in the tender filling form and though the petitioner had furnished the security commencing from 12.07.2023 to 30.04.2025 in the application due to the error it was filled as 30.04.2024 whereas the bid security drawn from SBI vide BG.No.0505523BG0002350 dated 04.08.2023 clearly shows that the validity is till 30.04.2025.
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8. A bare perusal of the letter dated 21.08.2023 of the State Bank of India, Secunderabad, clearly indicates the date of claim period as 30.04.2025, pertaining to the bank guarantee amount of Rs.38,94,800/- in favour of beneficiary FA and CAO/CN/SC, South Central Railway on behalf of the applicant i.e. M/s Hytronics Enterprises (India) Private Limited i.e. the petitioner herein as on 04.08.2023 vide bank guarantee No.0505523BG0002350.
9. Learned counsel for the petitioner places reliance on the judgment dated 11.09.2013 of the Hon'ble Apex Court reported in (2013) 10 SCC 5 in Rashmi Metaliks Limited and another v Kolkata Metropolitan Development Authority and others, and in particular paragraph 18 and 19, reads as under:
"18. We think that the income tax return would have assumed the character of an essential term if one of the qualifications was either the gross income or the net income on which tax was attracted. In many cases this is a salutary stipulated, since it is indicative of the commercial standing and reliability of the tendering entity. This feature being absent, we think that the filing of the latest income tax return was a collateral term, and accordingly the Tendering Authority ought to have brought this discrepancy to the 8 WP_25868_2023 SN,J notice of the appellant Company and if event thereafter no rectification had been carried out, the position may have been appreciably different. It has been asserted on behalf of the appellant Company, and not denied by the learned counsel for the respondent authority, that the financial bid of the appellant company is substantially lower than that of the others, and, therefore, pecuniarily preferable.
19. In this analysis, we find that the Appeal is well founded and is allowed. The impugned judgment is accordingly set aside. The disqualification of the Appellant-company on the ground of it having failed to submit its latest Income Tax Return along with its bid is not sufficient reason for disregarding its offer/bid. The Respondents are directed, therefore, to proceed further in the matter on this predication. The parties shall bear their respective costs. "
CONCLUSION
10. Taking into consideration the above referred facts and circumstances of the case and also the contents of the letter dated 21.08.2023 issued by the State Bank of India, Secunderabad (referred to and extracted above), and duly considering the averments made at para 10 of the counter affidavit filed by the respondents that technical bid is not yet finalized as on date and duly taking into consideration the 9 WP_25868_2023 SN,J view taken by the Apex Court in judgment dated 11.09.2013 reported in (2013) 10 SCC page 95 in Rashmi Metaliks Limited and another v Kolkata Metropolitan Development Authority and others, the writ petition is disposed of directing the respondent Nos.2 and 3 to consider the representation of the petitioner dated 30.08.2023 addressed to the respondent Authority clarifying Bid clarification with regard to BG Ref No.050-5523-bg-000- 2350 dated 04.08.2023 as effective from 12.07.2023 to 30.04.2025 drawn from SBI, Commercial Branch, Secunderabad within a period of two weeks from the date of receipt of copy of the order in accordance to law, duly taking into consideration the view taken by the Apex Court in its judgment dated 11.09.2013 reported in (2013) 10 SCC page 95 in Rashmi Metaliks Limited and another v Kolkata Metropolitan Development Authority and others and duly understanding the fact that respondent Nos.2 and 3, should have sufficient reason for disregarding petitioner's bid which admittedly as borne on record does not exist in the present case, and pass appropriate reasoned order, duly communicating the decision to the petitioner. Until a decision is taken by respondent Nos.2 and 3, upon the representation dated 30.08.2023 of the petitioner within the time period 10 WP_25868_2023 SN,J stipulated by this Court, the respondents are directed to maintain status quo with regard to the subject issue. It is also observed that if the respondent authorities need any clarification or any further documents, they are at liberty to issue notice to the petitioner and secure the same in deciding the subject issue. However, there shall be no order as to costs.
Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.
___________________________________ MRS JUSTICE SUREPALLI NANDA Date: 10.10.2023 Kgk