Vasav Enterprises Private ... vs Damodar Valley Corporation And ...
2023 Latest Caselaw 4112 Cal

AD-06
Ct No.09
05.07.2023
TN
                            WPA No. 15856 of 2023

                 Vasav Enterprises Private Limited and another
                                    Vs.
                   Damodar Valley Corporation and another


             Mr. Mainak Bose,
             Mr. Rishabh Karnani,
             Mr. Anurag Bagaria
                                                   .... for the petitioners

             Mr. Swarajit Dey,
             Ms. Riddhi Jain
                                           .... for the respondent no.1

Mr. Soorjya Ganguli, Ms. Radhika Mishra .... for the respondent no.2

Learned senior counsel for the petitioners

contends that the petitioners' bid has been rejected on

a Techno-Commercial evaluation on a hyper-technical

approach to the matter on the part of the respondent-

authorities. It is submitted that one of the

requirements of online submission of the bids was the

submission of an Integrity Pact, a format of which was

a part of the Notice Inviting Tender. It is submitted

that although the petitioners duly submitted such

pact online along with other relevant documents

required by the respondents much before the last date

of submission of such documents, the respondent-

authorities waited till July 03, 2023 to intimate the

petitioners that the petitioners' technical bid had been

rejected.

It is submitted that the tender was floated on

May 09, 2023. The petitioners' documents, along with

the Integrity Pact-in-question, were uploaded in soft

version on May 20, 2023. The last date of submission

was June 08, 2023.

However, nothing was intimated by the

respondents to the petitioners at any point of time,

throughout the period, regarding there being any

defect in the online submission of the petitioners.

However, on a subsequent e-mail of the petitioners, it

was intimated to the petitioners that the petitioners'

bid had not qualified in the Techno-Commercial

evaluation. The reason for such disqualification, as

given in the e-mail, was that the bidder had not

submitted the Integrity Pact "in totality" as per e-

catalogue.

Learned senior counsel for the petitioners places

reliance on the language of the relevant clause in the

Notice Inviting Tender. The said clause, that is,

clause (C), falls under the heading 'Category of

Requirements for participation in online e-auction'

and contemplates that a scanned copy of the Integrity

Pact, duly signed in all pages by the authorised

signatory who is signing the Bid as per format

enclosed, is to be uploaded with qualifying

requirement and the same must be produced before

issuance of sale release order.

Bids without scanned copy of Integrity pact

uploaded in the portal of the mjunction (respondent

no.2), which was maintaining the said portal for DVC

for the purpose of the tender, was to be rejected

outright.

It is submitted on behalf of the petitioners that

the rejection of the "bid" pre-supposes that the stage

of such rejection would not come before the last date

of submission of the bid. That apart, there is a

provision in a note given under clause (C) that hard

copies of the above-mentioned documents, including

the Integrity pact, would also have to be submitted by

the successful buyer.

Hence, there was ample scope of rectification of

the technical error cited by the respondents for

rejecting the petitioners' bid. It is reiterated that the

respondent-authorities ought to have given an

opportunity to the petitioners to satisfy the

respondents as regards whatever defect might have

visited the uploaded document.

In such context, learned senior counsel for the

petitioners cites Rashmi Metaliks Limited and another

vs. Kolkata Metropolitan Development Authority and

Others, reported at (2013) 10 SCC 95.

In the said judgment, it is contended, the

Supreme Court proceeded on the premise that a

clause in the tender involved therein regarding the

production of income tax certificate was not an

essential element or ingredient or concomitant of the

subject NIT.

As such, since the income tax return was filed

by the appellants therein in course of the hearing, it

was observed that an opportunity ought to be given to

the appellants therein to make good the non-

submission of such document in the said case.

By relying on the said judgment, the petitioners

contend that in the present case also, the Integrity

pact-in-question is a non-essential requirement of the

tender and, at least, the petitioners ought to be given

a further opportunity to produce the entire document,

if so required.

Learned counsel appearing for the respondent

no.1 places reliance on the ingredients of the tender

document. It is submitted that the requirements were

for participation in the online e-auction after

compliance of the clauses as given thereunder. One of

such clauses, being Clause (C), specifically

enumerated that a scanned copy of the Integrity pact,

duly signed in all pages, as per the format enclosed,

was to be uploaded along with the other documents.

Learned counsel also places reliance on a copy

of the format of the said document given with the

tender document.

It is highlighted that there are certain sections

in the said pact, which are integral for assessing the

worth of the bidders. As for example, learned counsel

cites Section 3 in the said pact, which pertains to

Disqualification from Tender Process and Exclusion

from Future Contracts in the event the event proposed

therein was not complied with.

Section 5 of the same document stipulates

previous transgression and provides that the bidder

has to declare that no previous transgressions

occurred in the last three years with any other

Company in any country conforming to the anti-

corruption approach or with any Public Sector

Enterprise in India that could justify his exclusion

from the tender process.

Sub-clause (2) of Section 5 of the pact also

provides that if the Bidder makes incorrect statement

on this subject, he can be disqualified from the tender

process or action can be taken as per the procedure of

"Banning of business dealings" of the Principal. By

placing reliance on other clauses and sections of the

said pact, it is argued that the submission of the said

Integrity pact in its entirety is an essential

requirement for participation in the tender process.

It is submitted, by placing reliance on a printout

of the copy of the Integrity pact allegedly submitted

online by the petitioners, which is handed over by

learned counsel for the respondent no.1 in court

today, that the second and third pages of the

document were missing in such copy. The copy filed

by learned counsel for the respondent no.1 be kept on

record.

Since the matter is extremely urgent, affidavits

are not directed at this stage, since the same would

frustrate the very purpose of urgent mentioning of the

matter and the same being taken out of turn at the

behest of the petitioners.

Proceeding on the premise that the copy handed

over in court today was the actual copy which was

uploaded by the petitioners, it is seen that several

vital sections of the Integrity pact are missing from the

said documents. As such, it cannot be said that the

error committed by the petitioners was merely

technical in nature, since the respondent no.1 is fully

justified in arguing that the contents of the Integrity

Pact directly affect and are germane for the

assessment of the worth of the bidder insofar as the

participation in the tender process is concerned.

That apart, learned counsel for the respondent

no.2, which is the company in charge of maintaining

the portal at the relevant juncture, submits that it is

not feasible practically to intimate each of the

participants in the tender process individually as

regards the technical flaws in their bid documents,

that too, at the online submission stage.

There is substance in such contention, since

even the tender document does not contemplate any

such opportunity to be given at the preliminary stage

of filing of documents online.

If such a provision is read into the tender terms

and is construed in a hyper-technical manner, then in

every case, public authorities would have to intimate

each of the individual participants in the tender

process, even at the preliminary stage of online

submission of bids, as to the errors committed by

each of them at such preliminary stage. The same is

not feasible, as it would involve much time,

unnecessary delay and useless expenditure of

resources.

Insofar as the contention of the petitioners is

concerned, that the requirement-in-question was not

an integral part of the document or essential for the

tender process, the same cannot be accepted in view

of the clauses thereof being essential to establish the

integrity and acumen of the participants, to aid the

authorities to select appropriate candidates.

That apart, it is rightly pointed out by learned

counsel for the respondent no.1 that the general

instruction to bidders, which immediately follows the

requirement for participation in the tender document,

specifies in bold letters that all transactions entered

into by the buyer/bidder arising out of the e-auction

shall be governed by the Integrity Pact as per

Annexure - VI thereof.

In view of the above discussions, I do not find

that there is any scope of interference with the

discretion of the authorities, which was exercised in

consonance with the terms of the tender, in the

present writ petition.

If a further opportunity is given to the

petitioners to rectify its defect, the same will create an

unnecessary disadvantage to the other participants in

the tender process, since there might have been

others whose bids were rejected on similar technical

grounds but who would not get the opportunity to

participate in the tender by rectifying their bid

documents.

Moreover, in any event, if such opportunities are

given at every stage, the tender process in respect of

public utility services would never reach finality.

In view of the above reasons, there is no scope of

interference in the present writ petition.

Accordingly, WPA No. 15856 of 2023 is

dismissed without any order as to costs.

Urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance with the requisite formalities.

(Sabyasachi Bhattacharyya, J.)