Delhi High Court
Vf Worldwide Holdings Ltd. vs Ministry Of External Affairs, ... on 23 March, 2017
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 23.03.2017
+ W.P.(C) 892/2017 & CM 4114/2017 & 8713/2017
VF WORLDWIDE HOLDINGS LTD. .... Petitioner
versus
MINISTRY OF EXTERNAL AFFAIRS, GOVT. OF INDIA & ANR
..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr MahinderAcharya, Sr. Adv. with Mr
Samar Kachwaham & Mr Raghavendra M
Bajaj.
For the Respondent Nos.1 & 2 : Mr Ajay Digpaul, CGSC with Ms Arti Bansal.
For the Respondent No.3 : Mr Rakesh Tikku, Sr. Adv. with Mr Arvind
Sharma.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE ASHUTOSH KUMAR
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
1. This writ petition is directed against the letter dated 23.01.2017
which has been addressed by the respondent no.2 to the petitioner
whereby the petitioner was informed that since its bid security was a New
Zealand dollar and not in US dollar, the petitioners bid for providing Visa
/Passport /Consular support services at three locations in New Zealand
i.e. Wellington, Auckland and Christchurch by establishing India Visa
Application Centres (IVACs) was rejected.
2. The short point of controversy is with regard to the currency in
which the earnest money deposited was made. According to the learned
counsel for the petitioner, the RFP as it originally stood, require the
bidders to submit the bid security amount of NZ$70,000. This would be
cleared from paragraph 8 (n) of the RFP which reads as under:
"(n) The Bidding Company must deposit a Bid Security of
NZ$70,000. The Bid Security is refundable not later than
15(fifteen} days from the opening of financial bid and award
of Contract, except in the case of the selected Bidding
Company whose Bid Security shall be retained till it has
provided Bank Guarantees as indicated in Para X - Bank
Guarantees of this document."
3. The above condition clearly stipulated that the bidding company
must deposit a bid security of NZ$70,000.
4. However, the very RFP by virtue of paragraph 17(n) permitted the
mission to amend the RFP or its enclosures at any time prior to the
deadline for receipt of bids. The relevant clause reads as under:
"n) The Mission reserves the right to amend the RFP and or
its enclosures at any time prior to the deadline for receipt of
bids. Any such amendment will be numbered, dated and
issued by the Mission and will be intimated to the Bidding
Companies by Email and also uploaded in the websites of the
Ministry and the Mission/Post. Where amendments are
significant, the Mission may, at its discretion, extend the
deadline for receipt of bids."
5. It would be seen from the above paragraphs that when an
amendment is made, it has to be numbered, dated and issued by the
mission and has to be intimated to the bidding companies by emails and
also uploaded in the website of the Ministry and the Mission.
6. It is an admitted position that a Corrigendum-II to the RFP dated
16.12.2016 was issued. The said Corrigendum reads as under:
"No. WEL/ 415/2/2016 December 16, 2016
CORRIGENDUM-II TO RFP ANNOUNCED ON
NOVEMBER 15, 2016
CHANGE IN THE CURRENCY OF BID SECURITY
This has reference to the RFP announced for
outsourcing of consular/visa services in the High Commission
of India, Wellington, New Zealand. The penalties in the RFP
have been specified in US Dollars, whereas the bid security
has been mentioned in NZ Dollars.
2. In order to have a uniformity in the dealing currency,
and in view of the convertibility of US Dollars, it has now
Been decided that the bid security shall be US $50,000 (US
Dollars Fifty thousand only) to be provided through a demand
draft in the name of „High Commission of India, Wellington‟.
3. It may be noted that any bank charges or commission
or any other charges, which may cause a variation in this
amount of US$ 50,000 shall be borne by the company
submitting the bid security, and the company shall be
responsible for making up the shortfall, if any, occurring out
of any such charges.
4. The above may considered to have been substituted in
the RFP, and in the Annexures, wherever the bid security is
mentioned."
7. The learned counsel for the petitioner contended that those
corrigenda was placed in the website of the mission as well as of the
Ministry that no email was sent to the petitioner or in fact to any of the
bidders with regard to the change in the currency of the security deposit.
8. This is also admitted by the learned counsel appearing for the
respondent nos.1 & 2 that the corrigendum was uploaded on the said
websites but had not been sent through email to the bidders including the
petitioner.
9. It is in this context that the learned counsel for the petitioner
submitted that since the email had not been received intimating the
petitioner with regard to the said corrigendum-II, the petitioner deposited
the bid security amount in NZ$70,000 which on the date of deposit if
converted into US dollar would amount to Rs.50,800/-. This meant that
in fact an excess of US$800 had been deposited by way of bid security.
Therefore, by way of substantial compliance, the bid security was
available with respondent nos.1 & 2. In an event, he submitted that since
the corrigendum had not been notified to the bidders in the manner
prescribed in paragraph 17(n) of the RFP, the corrigendum would not be
relied upon to disqualify the petitioner for having submitted in the bid
security in the original currency of the New Zealand dollar.
10. The learned counsel for the respondent nos.1 & 2 submitted that
the corrigendum dated 16.12.2016 was the second corrigendum. Though
this corrigendum like the earlier corrigendum dated 12.12.2016 had not
been sent by email to the bidders. The petitioner had responded to the
first corrigendum but kept silent about the second corrigendum.
Therefore, according to the learned counsel for the respondent nos.1 & 2,
the petitioner was well aware of the corrigendum-II dated 16.12.2016 and
they could not take the plea that they were not informed particularly
because the corrigendum had not been uploaded on the website of the
Ministry and the Mission.
11. This argument was also fully supported by Mr Tikku appearing for
the respondent no.3.
12. Having considered the arguments advanced by the learned counsel
for the parties, we are of the view that since on a technical plea, the
petitioner bid is sought to be rejected. The technicality would also apply
the other way. Paragraph 17(n) clearly stipulates that in case any
amendment is made, it must be numbered, dated and issued by the
Mission "and also" uploaded in the website of the Ministry or the
Mission. Clearly, unless the amendment was intimated both through
email and also uploaded on the websites. The corrigendum could not be
said to have in communicative to the bidders and therefore cannot be
relied upon to reject the bids of any of the bidding parties on the ground
that the bid security amount had been submitted in New Zealand dollar
(as already contemplated in RFP) and not in US dollar (as contemplated
in corrigendum-II).
13. The petitioners bid had been rejected solely on the ground that
supply in the prescribed currency....... Since the corrigendum had not
been communicated to the petitioners which was a condition precedent
for the corrigendum to have taken effect. The petitioners bid cannot have
been rejected on this ground.
14. Consequently, we set aside the letter dated 23.01.2017 and in order
to set the records stated that he petitioner is aware of the corrigendum, the
petitioners shall furnish the bid security amount in US dollar to the tune
of US$50,000 within 7 days. Simultaneously, within the period of 7
days, the respondent no.2 shall refund the amount of NZ$70,000 to the
petitioner.
15. Thereafter, the petitioners bid shall be processed as provided and
evaluated to as provided in the RFP.
16. The writ petition stands allowed.
17. Dasti.
BADAR DURREZ AHMED, J
MARCH 23, 2017 ASHUTOSH KUMAR, J
ab
