Pes Installations Pvt. Ltd. And ... vs Union Of India And Another
2015 Latest Caselaw 3078 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 17.04.2015
+       W.P.(C) 3677/2015
PES INSTALLATIONS PVT. LTD. AND ANR                            .... Petitioners
                             versus

UNION OF INDIA AND ANOTHER                                     .... Respondents
Advocates who appeared in this case:
For the Petitioner           : Mr Sanjeev Behl with Ms Eklavya Behl and Mr Nitin Raj
For the Respondent No.1      : Mr Vikram Jetly with Ms Bharti Raju and Mr Ankur
                               Chhiber
For the Respondent No.2      : Mr Ratan K. Singh with Mr Shashi Bhushan, Mr Suraj
                               Prakash and Mr J. K. Chaudhary for R-2.

CORAM:
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA

                                       JUDGMENT

BADAR DURREZ AHMED, J (ORAL) CM 6557/2015 The delay in re-filing is condoned.

This application stands disposed of.

CM 6556/2015 Allowed subject to all just exceptions.

WP(C) 3677/2015 & CM 6555/2015

1. In this writ petition, the grievance of the petitioners is that their bid,

which was submitted 12 minutes beyond the bid submission time, has not

been considered. The bid was in respect of a Global Tender Enquiry for

procurement of Modular Operation T (1) and Integration Part for 6 AIIMS.

2. The tender was floated initially on 03.03.2014. The tender had gone

through various amendments and finally the bid submission date and time

were specified as 16.01.2015 at 2 pm. On 16.01.2015, at 11:53 am, the

petitioners sent an e-mail to the respondents informing them that the bank

guarantee is under preparation with their bankers and the same would be

ready and would be given to them by 1:30 pm. They made a request for

extending the time for submission of the bids, at least by 1-1/2 hours, that is,

up to 3:30 pm. In response to the said request, the respondents extended the

bid submission time to 3 pm (15:00 hours) on 16.01.2015. The petitioners

did not submit their bid by 15:00 hours, but submitted it late by 12 minutes

at 15:12 hours.

3. The learned counsel for the petitioners submits that the bid submission

time ought to have been extended up to 3:30 pm (i.e., 15:30 hours), as

requested, and not only to 3 pm (15:00 hours). He further submitted that the

petitioners had full intention to submit the bid and had tried their level best

to submit the same within the stipulated period, but were only able to arrive

at the place for the submission of the bid at 3:12 pm. The learned counsel

for the petitioners referred to a decision of the Bombay High Court in

Infrastructure Leasing & Finance Services Limited v. State of

Maharashtra: WP(C) 1454/2009 decided on 20.08.2009. He submitted that

in that case also, there was a delay in submitting the bid by two minutes and

the High Court permitted the said bid to be considered. He placed reliance

on paragraph 28 of the said decision, which reads as under:-

"28. This entire problem can even be viewed from another angle. Does any of the parties including the Respondent particularly would suffer from any prejudice if the tender of the Petitioners is also permitted to be considered? Obvious answer would be in the negative. It is a tender of huge amount and it will be in the interest of the State on the one hand to have a wider choice out of the lowest bidders and on the other hand, it would serve the public interest. It can hardly serve any public purpose and public interest if fair competition is suppressed at this juncture. We are told that there are only three tenderers including the Petitioners.

Nothing substantial has happened as yet. In our view, no prejudice will be caused to any of the parties including the Respondent who will get wider zone of consideration by offering greater competition which will always be in the public interest. Obviously, the Petitioners would not gain anything as all the bids are in a sealed cover and it is for the State to take appropriate decision depending upon the clear technical bids and financial bids offered by the tenderers in accordance with the terms and conditions of the tender document."

(underlining added)

Consequently, he submitted that the petitioners' bid also ought to be

considered in the same light.

4. The learned counsel appearing on behalf of the respondents, on

advance notice, submitted that the petitioners' bid cannot be taken into

account for various reasons. First of all, the bid submission date was

16.01.2015 and a lot of water has flown since then. The writ petition was

filed around 10.02.2015 and, thereafter, the objections have only been

removed recently, which is why the petition is listed before us today, for the

first time. According to the learned counsel for the respondents, this delay

would itself disentitle the petitioners from any relief in the petition.

Secondly, it is submitted by the learned counsel for the respondents that the

delay in submitting the bid cannot be condoned as that would be altering the

condition of the bid itself. Thirdly, it was submitted that there were eight

bids which were received and the technical bids had been processed and are

at the stage of opening of the price bids. Fourthly, it was submitted that in

case the bank guarantee was taking some time, the petitioners could have

submitted a banker's cheque which does not take much time.

5. Having considered the submissions made by the learned counsel for

the parties, we are in agreement with the submissions made by the learned

counsel for the respondents. Once a bid submission date and time has been

fixed, the bids have to be submitted before that time, unless amended by the

employer with notice to all concerned. In this case, a request had, inter alia,

been received from the petitioners and on that request, the bid submission

time had, in fact, been extended to 15:00 hours. The petitioners cannot

contend that the respondents were duty bound to extend the bid submission

time to 15:30 hours, as requested by the petitioners. In any event, the

petitioners were originally aware that the bids have to be submitted by 2 pm

on 16.01.2015. If eight other bidders were able to submit their bids along

with bank guarantees within the stipulated time then, there was nothing

preventing the petitioners from being completely ready for submitting the

bid on or before 2 pm on 16.01.2015.

6. Furthermore, the petitioners have approached this Court at a belated

stage and had not even bothered to remove the objections in a timely

manner. Today, when we are hearing the writ petition, three months have

elapsed from the due time for bid submission on 16.01.2015. In that period

of three months, several things have happened. Technical bids of the eight

bidders have been opened and processed and are now at the stage of opening

of the financial bids. For this reason also, we refrain from interfering with

the tender process at the behest of the petitioners.

7. Insofar as the decision of the Division Bench of the Bombay High

Court is concerned, that is clearly distinguishable. In that case, there were

only three bidders, including the petitioner and, if the petitioners' bid was

not taken into account, then, only two bidders would be left in the field. This

is not the case in this matter. Here, there are eight bidders whose bids are

being processed. Thus, the argument of wider participation, which may have

been relevant in the case before the Bombay High Court, cannot be raised in

the present petition.

8. Furthermore, in paragraph 28 of the said decision itself, it has been

noted that :-

"Nothing substantial has happened as yet."

In the present case several things have happened. Technical bids of eight

bidders have been opened and processed and, therefore, for this reason also

the present case is completely distinguishable from the decision of the

Bombay High Court. This is apart from the fact that this Court is not bound

by the decision of the Bombay High Court, cited by the learned counsel for

the petitioner. There are other distinguishable facts which we need not

allude to in the backdrop of the view which we have already taken.

9. We may also point out that it was a specific condition of the tender, as

indicated in clauses 20.2 and 23.1, that if a bid was not received within due

date and time, then it would be ignored/ rejected. So, the respondents in not

considering the bid of the petitioners, which, admittedly, was beyond the bid

due time, have not committed any wrong and have not acted in an arbitrary

fashion. They have complied with the tender conditions.

10. For all these reasons, there is no merit in the writ petition. The same

is dismissed.

                                        BADAR DURREZ AHMED, J



APRIL 17, 2015                             SANJEEV SACHDEVA, J
SR