Bombay High Court
Larsen And Toubro Limited vs Mumbai Metropolitan Region ... on 4 May, 2023
Bench: R.D. Dhanuka, Gauri Godse
2023:BHC-OS:4038-DB
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Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 12017 OF 2023
AND
WRIT PETITION (L) NO. 12023 OF 2023
Larsen & Tubro Limited, a company
incorporated in India, and having its
registered office at L&T House, Ballard
Estate, Mumbai - 400 001. ....Petitioner
V/s.
1. Mumbai Metropolitan Region Development
Authority (MMRDA), a statutory body under
the Mumbai Metropolitan Development Act,
1974, having its office at Plot No. 14 & 15,
MMRDA New Building, BKC, Bandra (E)
2. Engineer-in-Chief, Mumbai Metropolitan
Region Development Authority (MMRDA),
having his office at 2nd Floor, New MMRDA
Building, BKC, Bandra (E), Mumbai-
400051.
Email ID:
[email protected]
3. Executive Engineer, Mumbai Metropolitan
Region Development Authority (MMRDA),
having his office at Plot No. 14 & 15, MMRDA
New Building, 5th Floor, BKC, Bandra (E),
Mumbai - 400 051. Email ID: ....Respondents
[email protected]
Mr. Janak Dwarkadas, Senior Advocate along with Mr. Chirag
Kamdar and Mr. Indranil Deshmukh, Ms. Gathi Prakash, Mr. Darshan
Furia and Ms. Arushi Poddar i/b M/s. Cyril Amarchand Majngaldas,
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for the Petitioner in WPL 12017/2023 Advocate for the Petitioner
Mr. Janak Dwarkadas, Senior Advocate along with Mr. Chirag
Kamdar and Mr. Indranil Deshmukh, Ms. Gathi Prakash, Ms. Nidhi
Asher and Ms. Priyanka Desai i/b M/s. Cyril Amarchand Mangaldas
for the Petitioner in WPL 12023/2023 Advocate for the Petitioner
Dr. Milind Sathe, Senior Advocate along with Mr. Saket Mone, Mr.
Shrey Shah, Mr.Abhishek Salion, Mr. Devansh Shah i/b M/s. Vidhi
Partners, Advocate for Respondent No. 1-MMRDA in both Petition.
CORAM : R. D. DHANUKA &
GAURI GODSE, JJ.
DATED : 4th MAY, 2023.
ORAL JUDGMENT:
1. Rule. Dr. Sathe, learned senior counsel waives service for
Respondent - MMRDA in both the matters. By consent of the parties,
both the Petitions were heard together and are being disposed of by
a common order.
2. Petitioners in Writ Petition (L) No. 12023 of 2023 have prayed
for Writ of Mandamus against the Respondents to declare the
Petitioner as the lowest bidder or L-1 bidder in the tender for the
project i.e. Package - 2.
3. In so far as Writ Petition (L) No. 12017 of 2023 is concerned,
the Petitioner has prayed for Writ of Certiorari for quashing and
setting aside the rejection of the Petitioner's technical bid submitted
to Respondent No. 1 in respect of proposal for Package 1. In the
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alternative, Petitioner has prayed for Writ of Mandamus against the
Respondents to withdraw email dated 25th April, 2023 communicating
rejection of Petitioner's technical bid submitted on 6 th April 2023.
Petitioner has also prayed for a Writ of Mandamus against the
Respondent to treat the technical bid submitted by the Petitioner on
6th April 2023 as eligible and open and consider Petitioner's financial
bid submitted on 6th April 2023 in response to said tender.
FACTS IN WRIT PETITION (L) NO. 12017 OF 2023
4. On 14th January 2023, Respondents issued a request for
proposal for Package 1 & 2 of the project in question. On 16 th March
2023, a common set of deviations for Package 1 and a common set
of deviations for Package 2 were issued by Respondent No. 1. On 6 th
April 2023, Petitioner submitted its technical bids for both the
Packages. On 19th April 2023, Respondent No. 1 issued two letters
both dated 19th April, 2023 for Package 1 and 2 respectively to the
Petitioner inter alia requesting for additional documents to
demonstrate different project experience to be qualified for both the
packages. On 21st April 2023, Petitioner responded to the said letter
and clarified that it has Doha Metro Project experience to establish
its technical capacity criteria.
5. On 24th April 2023, Respondent No. 2 requested the Petitioner
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to remain present at the time of opening of financial bid on 25 th April
2023 at 10.00 a.m. It is the case of the Petitioner that on 25 th April
2023, Petitioner received an E-mail claiming that the bid of the
Petitioner for tender in question had been rejected during technical
evaluation by the duly constituted committee for the reason 'Not
eligible'.
6. On 26th April 2023, the Petitioner through their Advocates
addressed a letter to the Respondents calling upon the Respondents
to forthwith withdraw the decision of rejecting the Petitioner's
technical bid for Package 1 and to treat the technical bid submitted
by the Petitioner on 6th April 2023 as eligible and open for the
financial bid for Package 1. Since the Respondents did not accept
the request of the Petitioner to withdraw the decision to reject the
Petitioner's technical bid for Package 1, the Petitioner filed Writ
Petition (L) No. 12017 of 2023. Writ Petition is resisted by the
Respondents by filing Affidavit-in-Reply.
FACTS IN WRIT PETITION (L) NO. 12023 OF 2023:
7. On 14th January 2023, Respondent No. 2 issued a 'Request
for proposal for Package - 2' of the project in question. On 6 th April
2023, Petitioner submitted its bid for the project. It is the case of the
Petitioner that on 25th April, 2023 upon visiting the e-tender portal for
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the project, Petitioner realized that it had inadvertently submitted its
bid amount inclusive of tax in the coloumn for "rate without tax" and
"rate with tax" of the price schedule. Petitioner accordingly
addressed a letter to Respondent No. 1 inter alia clarifying that the
bid price submitted by the Petitioner in column No. 12 of price
schedule is Indian Rupees 6,625,00,00,000/- which is inclusive of all
taxes and GST. On 26th April 2023, the Petitioner addressed a letter
to Respondent No. 2 contending that Respondent No. 1 had
correctly determined the Petitioner as the L1 bidder on the basis of
contract price with tax. On 27th April 2023, the Petitioner filed Writ
Petition (L) No. 12023 of 2023.
SUBMISSIONS OF THE PARTIES IN BOTH PETITIONS:
8. Mr. Dwarkadas, learned senior counsel for the Petitioner in
both the Petitions invited out attention to the documents annexed to
the petitions and the submissions made by the Respondents in the
Affidavit-in-Reply filed these Petitions. He invited our attention to
Clause 1.2.7 of Section 1 of RFP for Package 1, Clause 3.3.1 of
Section 3 for Package 1 and Clause 2.2.2.2(iii)(b) of Section 2 and
submitted that the technical capacity criteria in RFP for Package 1
does not refer the technical capacity criteria set out in the RPF for
Package -2, or vice versa. He submitted that technical capacity
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criteria set out in RFP packages are entirely independent of one
another and whether to chose to bid for either or both Packages,
subject to the qualification that Respondent No. 1 would award only
one package to one bidder.
9. It is submitted by the learned senior counsel for the Petitioner
that earlier provision, more particularly contained in Clauses 1.2.7 of
Section 1 and 3.3.1 of Section 3 was deleted. He submitted that in
view of the said deletion, of part of Clause 1.2.7 of Section 1, there
was no restriction any longer on Respondent No. 1 awarding both
Packages to one successful bidder. It is submitted by the learned
senior counsel for the Petitioner that Respondent No. 1 thereafter
issued two further common sets of deviations for Package 1 dated
24th March 2023 and 31st March 2023.
10. He submitted that on 6th April 2023, Petitioner accordingly
submitted its technical and financial bids for both Packages.
Petitioner had sufficiently met the technical capacity qualification
independently contained in both RFP's for Package 1 and 2 by virtue
of its Doha Metro Project experience where it had undertaken TBM
tunneling of 5.126 km with finished diameter of 6.17 m of value of
Indian Rupees 3,978.90 Cr. It is submitted that though the bid
submitted by the Petitioner on 6th April 2023 was responsive,
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Respondent No. 1 issued two letters both dated 19 th April 2023 to the
Petitioner for Package - 2, purporting to seek clarification and/or
informing of shortfall of documents with regard to the technical bids
submitted by the Petitioner. He submitted that the Petitioner was
called upon to submit its clarification within two days from the date of
receipt of said letter, making it clear that in case of non-availability of
documents to demonstrate the technical capacity separately for both
packages, Petitioner shall indicate which package among the two
packages should be considered for technical evaluation.
11. It is submitted by the learned senior counsel for the Petitioner
that Petitioner did not waive or accept the new condition imposed by
the Respondent No. 1 while submitting clarifications vide
communication dated 21st April 2021 that if the Petitioner was held
technically responsive for one package, then the Respondent No. 1
may consider Package - 2. He submitted that the said clarification
was without waiving the rights of the Petitioner to contend that the
Petitioner was not required to submit two separate certificates i.e.
each in respect of each Package which was the subject matter of the
tender.
12. Learned senior counsel invited our attention to E-mail dated
24th April 2023 calling upon the Petitioner to attend the financial bid
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opening on 25th April, 2023 at 10.00 a.m. He submitted that on 25 th
April 2023, Respondent No. 1 rejected the technical bid of the
Petitioner for the reason 'not eligible'. Learned senior counsel invited
our attention to the legal notice issued to the Petitioner by
Respondent No. 1.
13. It is submitted by the learned senior counsel for the Petitioner
that for the first time on 19th April 2023, Respondent No. 1 contended
that the Petitioner was required to meet technical capacity criteria
separately in respect of both the packages. He submitted that such
additional requirement could not have been imposed by Respondent
No. 1 after submission of the bid by the Petitioner on 6 th April 2023.
He submitted that under the garb of seeking clarifications,
Respondent has imposed additional conditions after closing of the
last date of submission of technical bid.
14. The next submission of the learned senior counsel is that
though under Clause 2.19 Respondents could not have opened
financial bid before expiry of 7 days from the date of rejection of
technical bid, in this case, Respondents have opened the financial
bid of successful bidder within two minutes of the opening of the
declaration of the outcome of the technical bid. Learned senior
counsel placed reliance on the Manual for Procurement of Works
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issued by the Government of India, Ministry of Finance, more
particularly Clause 5.5.2 and submitted that if Respondents would
have waited for 7 days time after opening of technical bid, the defect,
if any, in the technical bid submitted by the Petitioner could have
been rectified by the Petitioner within such period of 7 days.
15. Learned senior counsel placed reliance on the Judgment of
the Delhi High Court in the case of Supreme Infrastructure India
Limited Vs. Rail Vikas Nigam Limited and another1 and more
particularly paragraph Nos. 23, 27 and 30 and submitted that
Respondents being a public body is expected to function and
conduct itself with reasonable prudence expected of any common
man in the business and cannot be bogged down by the literal rule,
even if there be one and throw to winds the basic common sense
and shut its eyes to such obvious errors, to defeat not only the rights
of a deserving bidder, but also sacrifice public interest in the process.
He submitted that in this case, since the Respondents had imposed
the additional condition for submitting separate Work Experience
Certificates in respect of both the packages which was imposed after
last date of closing of the technical bid, Respondents could not have
rejected the technical bid of the Petitioner in so far as Package 1 is
1 2012 SCC OnLine Del 6176
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concerned on the ground that the Petitioner had not submitted
separate technical capacity certificates in respect of Package 1.
16. Dr. Sathe, learned senior counsel for the Respondents on the
other hand invited our attention to various provisions of the tender
and submitted that after rejection of technical bid of the Petitioner,
Respondent No. 1 had opened the financial bid. Megha Engineering
and Infrastructure Limited was only bidder whose technical bid was
found responsive and thus, the financial bid of said bidder was open.
The said financial bid of MEIL was thereafter recommended as the
said successful bidder for further action. He submitted that said MEIL
has not been impleaded as party Respondent to the Petition though
is necessary party to the Petition.
17. It is submitted that any adverse order if passed by this Court in
the Petition filed by the Petitioner challenging the rejection of
technical bid of the Petitioner and opening of financial bid, the said
successful bidder i.e. MEIL would be seriously affected.
18. The next submission of the learned senior counsel is that
admittedly prior to the date of carrying out amendment and deleting
the relevant provision, all the bidders were though allowed to
participate in the bid for both Packages, it was made clear that
successful bidder would be awarded only one out of the two contract
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and not both the contracts. He submitted that in view of the such
condition, the condition for submission of Work Experience
Certificate was held valid in respect of any such contract which
would have been awarded to the successful bidder.
19. It is submitted by the learned senior counsel that in view of the
deletion of such clause, Respondent permitted the bidders to submit
bids for both packages and modified the condition that if such bidder
is found responsive in respect of both the works, such bidder would
be awarded both the works. The condition of submission of Work
Experience Certificate which was held good in respect of one
contract obviously could not have been relied upon by the Petitioner.
He submitted that the scope of work was expanded if both the
contracts were awarded to the same bidder.
20. The learned senior counsel further submitted that bid of the
Petitioner was rejected by the Respondents in view of the Petitioner
not having submitted two separate Work Experience Certificates. He
invited our attention to communication dated 21 st April 2023,
addressed by the Petitioner in response to the query raised by the
Respondent vide letter dated 19th April 2023 and submitted that the
Petitioner voluntarily submitted and made it clear that the Petitioner
had one project of Doha Metro Project experience where it had
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undertaken TBM tunneling of 5.126 km with finished diameter of 6.17
m of value of Indian Rupees 3,978.90 Cr.
21. In response to query 2, it is submitted by the learned senior
counsel that Petitioner had voluntarily submitted bid for Package 2
after the Petitioner was found technically responsive for Package 1.
He submitted that the said letter addressed by the Petitioner was
without any protest and having accepted that if Petitioner's bid was
technically responsive for one package, the Petitioner will be
considered for Package - 2, the Petitioner has given up its
contention which is now sought to be raised before this Court for the
first time. He submitted that in view of unequivocal acceptance by
the Petitioner vide letter dated 21st April 2023 and having made a
request that in case of Petitioner's bid having been found technically
responsive for one package, same shall be considered for Package
- 2, the Petitioner now cannot be allowed to urge that there was any
deviation in the tender conditions.
22. Learned senior counsel vehemently urged that bidder should
be qualified and experienced to complete both the packages and
hence two separate Work Experience Certificates were required to
be submitted. He submitted that under Clause 3.14 and 3.15 of the
tender, Respondents were permitted to seek any clarification from
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the bidder. He submitted that upon scrutiny of the technical bid of the
Petitioner, since it was found that same was not responsive in view
of the Petitioner not having submitted the Work Experience
Certificate in respect of both packages, Respondents had exercised
their right under Clauses 3.14 and 3.15 of the tender condition which
was duly responded by the Petitioner.
23. Learned senior counsel submitted that in any event the
Respondents being draftsman of the tender condition, the
interpretation of the terms and conditions of the tender as made by
the Respondents would be binding and not as sought to be
canvassed by the Petitioner. Learned senior counsel also placed
reliance on the following Judgments.
a. Afcons Infrastructure Limited V/s. Nagpur Metro Rail
Corporation Limited and Another,2;
b. National High Speed Rail Corporation Limited V/s.
Montecarlo Limited and Another,3;
c. W . B. State Electricity Board V/s. Patel Engineering Co.
Ltd. and others4; and
d. Ramana Dayaram Shetty V/s. International Airport Authority
2 (2016) 16 Supreme Court Cases 818
3 2022 SCC OnLine SC 111
4 (2001) 2 Supreme Court Cases 451
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of India and Others.5
24. In so far as the submissions made by learned senior counsel
Mr. Dwarkadas in Writ Petition (L) No.12023 of 2023 for Package -2
is concerned, it is submitted by the learned senior counsel that
Clause 1.2 defined 'contract price'. He submitted that it is made clear
in the said definition of the contract price that the provisional sum
shall be operative as stated in the clause 1.3.2. The contract price
shall be the total amount including provisional sum and excluding
GST. Learned senior counsel invited our attention to averments
made in paragraph 5.5 and 5.6 of the Writ Petition (L) No. 12023 of
2023 and submitted that it is the case of the Petitioner itself that the
Petitioner realized the mistake on or around 25th April 2023 that it had
inadvertently submitted its bid amount inclusive of tax in the coloumn
for "rate without tax" and "rate with tax" of the price schedule. He
submitted that alleged error in the price bid submitted by the
Petitioner was admittedly sought to be corrected after opening of the
price bid submitted by the successful bidder.
25. Mr. Dwarkadas, learned senior counsel for the Petitioner
made an attempt to distinguish the paragraphs of the Judgment of
the Hon'ble Supreme Court in the case of Supreme Infrastructure
5 (1979) 3 Supreme Court Cases 489
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India Limited relied upon by Dr. Sathe and relied upon paragraph
No. 11 of the said Judgment and vehemently urged that since
decision making process of the Respondent was malafide or
intended to benefit the successful bidder, the Court has ample power
to interfere with such decision making process. He submitted that
even the said successful bidder had not submitted two separate
Work Experience Certificate initially.
26. In so far as the submission that the financial bid could not
have been opened before expiry of 7 days by the Respondents is
concerned, learned senior counsel relied upon Clause 2.19 r/w 3.2
and submitted that period of 7 days would commence only after
opening of technical bid.
27. In so far as the dispute relating to Package 2 is concerned, the
learned senior counsel for the Petitioner sought to distinguish the
Judgment of the Hon'ble Supreme Court in the case of W. B. State
Electricity Board by relying upon paragraph Nos. 23 and 28 of the
said Judgment. He submitted that since the Petitioner had
inadvertently mentioned the price inclusive of GST, such mistake
committed by the Petitioner unintentionally was required to be
corrected. He submitted that in any event it was a matter of
arithmetic calculation and thus, even if the amount of GST is
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included in the price bid, Respondent would have excluded the
amount of GST which was known to the Respondent and ought to
have considered the price bid of the Petitioner as responsive.
REASONS AND CONCLUSIONS:
28. The short question that arises for consideration of this Court
in so far as Package 1 is concerned, whether the Petitioner was
required to submit two separate Work Experience Certificates i.e.
separately in respect of both the packages or not.
29. It was to the knowledge of the Petitioner that financial bid of
the successful bidder was lowest. The Petitioner however, did not
chose to implead the successful bidder i.e. Megha Engineering and
Infrastructure Limited as party Respondent to the Petition. In our
view, Dr. Sathe is right in his submission that said successful bidder
was necessary party to the Petition and any adverse order if passed
by this Court by accepting the submissions of the Petitioner and if
interferes with the award of contract in favour of the successful
bidder, such successful bidder would be seriously prejudiced. Writ
Petition deserves to be rejected on this ground itself.
30. The Hon'ble Supreme Court in the case of Afcons
Infrastructure Limited (supra) has held that the owner or the
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employer of the project, having authored the tender documents, is
the best person to understand and appreciate its requirements and
interpret its documents. The Constitutional Courts must defer to this
understanding and appreciation of the tender documents, unless
there is malafide or perversity in the understanding or appreciation or
in the application of the terms of the tender conditions. It is possible
that the owner or employer of a project may give an interpretation to
the tender documents that is not acceptable to the constitutional
Courts but that by itself is not a reason for interfering with the
interpretation given. In the same Judgment, the Supreme Court has
also held that the successful bidder has to be impleaded as party to
the Writ Petition and in absence of such successful bidder have not
been made a party, the Court cannot pass any order against such
successful bidder.
31. In our view, the interpretation of the terms of the tender by the
Respondents that there should be two separate Work Experience
Certificate required i.e. two certificates in respect of each Package is
a plausible interpretation. Be that as it may, draftsman of the
documents has to interpret the tender conditions which in this case
are the Respondents. Draftsman of the documents is the best person
to interpret it is own terms of contract. Be that as it may, we do not
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find any allegations of malafide in the Petition filed by the Petitioner
nor the Petitioner has been successful to demonstrate any such
allegations of malafide made across the bar during the course of
arguments.
32. The Hon'ble Supreme Court in the case of National High
Speed Rail Corporation Limited (supra) has held that the Petitioner
once having accepted the terms and conditions of the tender process
with full knowledge of relevant clauses and participated with full
knowledge, thereafter it was not open for the original Writ Petitioner
to make a grievance with respect to such clauses. In our view, the
Petitioner had already submitted clarification to the query raised by
the Respondents to submit two Work Experience Certificates in
respect of each Package and that if the technical bid of the Petitioner
is found responsive, same should be considered for Package - 2.
The Petitioner now after having failed in both Packages, cannot be
allowed to contend that Respondents could not have sought such
clarification from the Petitioner. The principles laid down by the
Supreme Court in National High Speed Rail Corporation Limited
(supra) squarely apply to the facts of this case. We are respectfully
bound by these principles.
33. It is common ground that before carrying out amendment in
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the tender conditions, all the bidders were permitted to submit their
bid for both packages. It was further made clear that successful
bidder would be awarded with only one contract out of the two
contracts. It is also common ground that Work Experience Certificate
was required to be submitted by each of the bidder. Such condition
which prohibited from awarding both the contracts though bidders
would have been even successful was admittedly deleted before the
submission of the technical bids. It was sought to be contended by
the Respondents that since the successful bidder would have been
awarded both packages if was successful, separate Work
Experience Certificate was required to be submitted in respect of
each package.
34. A perusal of the tender condition clearly indicates that under
Clause 3.14, the employer is entitled to seek any clarification in
writing from any bidder regarding its technical bid. Depending upon
the clarification that would be given by the bidders, the employer is
entitled to make deviation in the tender condition. Though the last
date for submission of the technical bid was over and though the
Petitioner not having submitted separate Work Experience Certificate
in respect of both the packages, instead of rejecting the technical bid
of the Petitioner in respect of both the packages, the Respondent
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sought clarification under Clause 3.1.4 from both the bidders. A
perusal of the letter addressed by the Petitioner in response to the
said query raised by the Respondent, Clause 3.1.4, would clearly
indicate that in so far as query No.1 is concerned the Petitioner vide
letter dated 21st April 2023 submitted that threshold technical
capacity aggregating to INR 42,521.78 Cr. INR 21221.08 Cr and INR
21300.70 Cr against the requirement of INR 14,546 Cr for Package -
1 and INR 14922 Cr for Package - 2.
35. In so far as query No. 2 is concerned, the Petitioner submitted
that the Petitioner had experience of some project of Doha Metro
Project where it had undertaken TBM tunneling of 5.126 km with
finished diameter of 6.17 m of value of Indian Rupees 3,978.90 Cr.
(L&T Share in JV). In so far as clarification sought under Clause
3.1.4 of Volume 1 is concerned, the Petitioner made a request that, if
the Petitioner was technically responsive for one package, then the
Respondent may consider Package - 2. A perusal of the said letter
indicates that in the said letter while clarifying the issue, the
Petitioner had not reserved any right to challenge the clarification
sought by the Respondent or that the Petitioner had waived their
contention that the Petitioner was not liable to submit two separate
Work Experience Certificate i.e. one each in respect of both the
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packages.
36. It is not disputed by the Petitioner that in view of the said
clarification issued by the Petitioner vide letter dated 21 st April 2023,
Respondents had taken into consideration the said Work Experience
Certificate in respect of project of Doha Metro Project undertaken by
the Petitioner in respect of Package 2 and having found the technical
bid of the Petitioner responsive, in respect of Package 2 had opened
the financial bid of the said Package. The Petitioner having found
unsuccessful in the financial bid submitted for Package 2, has now
challenged the tender condition or the letter of the Respondent
seeking clarification and asking the Petitioner to submit two separate
Work Experience Certificate. In our view, the Petitioner had already
clarified that the Petitioner has only one Work Experience Certificate
and in case, the bid of the Petitioner was found technically
responsive for one Package, same shall be considered for Package
- 2, the Petitioner now cannot be allowed now to contend that the
said one such Work Experience Certificate was valid for both the
packages.
37. In so far as the Judgment of the Delhi High Court in the case
of Supreme Infrastructure India Limited (supra) pressed in service by
learned senior counsel Mr. Dwarkadas is concerned, Delhi High
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Court has held that employer cannot be bogged down by the literal
rule, even if there be one and throw to winds the basic common
sense and shut its eyes to such obvious errors, to defeat not only the
rights of a deserving bidder, but also sacrifice public interest in the
process. In this case, the Petitioner not having fulfilled the tender
condition and in any event having not clarified that in case of
technical bid of the Petitioner if found responsive, the Work
Experience Certificate submitted by the Petitioner shall be submitted
for Package 2, we do not find any substance in the submission made
by Mr. Dwarkadas, learned senior counsel for the Petitioner that the
Respondents have not acted with basic common sense or has not
taken any reasonable approach while rejecting the technical bid
submitted by the Petitioner.
38. In so far as the submission of Mr. Dwarkadas, learned senior
counsel for the Petitioner that the Respondents could not have
opened the financial bid before the expiry of 7 days of the opening of
the technical bid and displaying the outcome of the opening of the
technical bid is concerned, in our view, there is no substance in the
submission of the learned senior counsel. The Petitioner had already
made a request to the Respondents to consider the said Work
Experience Certificate submitted by the Petitioner, if the technical bid
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of the Petitioner is found responsive for Package - 2, however,
Respondents having found that there was only one successful
bidder. In our view, no prejudice would have caused to the Petitioner
even if the price bid of the successful bidder was opened before
expiry of seven days.
39. In so far as Package - 2 is concerned, it is clear that so called
alleged mistake discovered by the Petitioner in the financial bid
submitted by the Petitioner was sought to be rectified after opening
of the financial bid having found financial bid as rejected. Such error
cannot be allowed to be corrected after opening of the financial bid.
The Respondents rightly rejected the request of the Petitioner to
rectify any such error. In so far as 'Manual for Procurement of Works
issued by the Government of India, Ministry of Finance' pressed in
service by Mr. Dwarkadas, learned senior counsel for the Petitioner
is concerned, such Manual cannot be applied to the contract in
question. The said Manual is not applicable to the Respondents.
Reliance placed on the said Manual by the learned senior counsel
for the Petitioner is thus misplaced.
40. The Hon'ble Supreme Court in the case of W. B. State
Electricity Board has laid down the principles as to when the Court
can interfere in the proceedings seeking relief in equity on the
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ground of mistake. In our view, since there was no mistake in any of
the provisions of tender condition and both the parties having been
ad Idem about the terms of the tender, we are not inclined to
interfere with the process of awarding the contract on the ground of
alleged mistake in any of the terms and conditions of the contract.
Mr. Dwarkadas, learned senior counsel for the Petitioner has
pressed in service and relied on paragraph Nos. 23 & 24 of the same
Judgment in which the Supreme Court held that the mistake or errors
in question are unintentional and occurred due to the fault of
computer termed as a repetitive systematic computer typographical
transmission failure.
41. We are afraid we cannot accept the submission of Mr.
Dwarkadas, learned senior counsel for the Petitioner that the mistake
in mentioning the price bid inclusive of GST in so far as Package - 2
is concerned, ought to have been permitted to be corrected by the
Respondents after opening of the financial bid. The reliance placed
on Paragraph Nos. 23 and 24 of the said Judgment by the learned
senior counsel is thus is clearly misconceived.
42. In our view, Dr. Sathe, learned senior counsel for Respondents
rightly placed reliance on the Judgment of the Hon'ble Supreme
Court in the case of Ramana Dayaram Shetty in support of his
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various propositions. The said Judgment supports the case of the
Respondents.
43. In our view, there is no merit in any of the contentions raised
by Mr. Dwarkadas, learned senior counsel for the Petitioner. Both
Petitions are devoid of merit and are accordingly dismissed. No order
as to costs. All parties to rely upon the authenticated copy of this
Order.
(GAURI GODSE, J.) (R. D. DHANUKA, J.)
