Delhi High Court
Rajesh Gupta vs Union Of India And Anr. on 13 August, 2019
$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 13th August, 2019
+ W.P.(C) 8783/2019
RAJESH GUPTA ..... Petitioner
Through: Mr.Jitender Mehta, Advocate
versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Mr.Nikhil Majithia, Adv. for R-2.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE JYOTI SINGH
G.S. SISTANI, J. (ORAL)
C.M.36316-36317/2019 (exemption)
1. Exemptions allowed, subject to all just exceptions.
2. Applications stand disposed of.
W.P.(C) 8783/2019 & C.M.36315/2019 (stay)
3. This matter has been taken up upon mentioning before DB-I.
4. Issue notice to show cause as to why the petition be not admitted.
Counsel for respondent no.2 enters appearance on an advance copy and
accepts notice.
5. Learned counsel for the petitioner, at the outset, submits that there is
urgency in the matter as the technical bid was opened on 09.08.2019
and on the same day, the petitioner received an email informing him
that his bid stands rejected. He submits that the financial bid was to be
opened today but since he has approached this Court, the financial bid
shall be opened tomorrow i.e. 14.08.2019.
6. With the consent of the parties, the writ petition is set down for final
hearing and disposal since a short question arises for our consideration.
The Indian Railway Catering and Tourism Corporation Ltd. (IRCTC)
invited e-tender bids for provision of onboard catering services in
mail/express / superfast trains having pantry car/mini pantries in
partial/complete unbundling model for a period of one year. The last
date and time for submission of bids was 15.03.2019 upto 15:00 hours
and the bids were scheduled to be opened on 15.03.2019 at 15:15 hours.
In compliance with the tender document, a bidder was supposed to
submit an affidavit in the format mentioned in Annexure IC of the
tender document. The reason for rejecting the bid of the petitioner
herein was that he did not submit Annexure IC in terms of the revised
format. The counsel for the petitioner submits that the
discrepancy/irregularity was minor in nature and there was no material
deviation from the terms of the tender. Reliance is placed on Clauses
4.3, 5.3 and 5.4 of the tender conditions.
7. Learned counsel for the respondent no.2 submits that there is no
infirmity in the decision taken by the respondent. It is submitted that
admittedly the petitioner did not submit Annexure IC in the revised
format.
8. We have heard learned counsels for the parties. To appreciate the
submissions of the counsels, we deem it appropriate to reproduce
Clauses 4.3, 5.3 and 5.4 of the tender conditions, which read as under:
"4.3 During E-Tender evaluation, the IRCTC may, at its
discretion, ask the tenderer for a clarification of its bid. The
request for clarification and response shall be in writing. No
change in the price or substance of the E-Tender shall be sought,
offered or permitted, in response.
5.3 IRCTC may waive any minor nonconformity, or irregularity
in a bid that does not constitute a material deviation, provided
such waiver does not prejudice or affect the relative ranking of
any bidder.
5.4 Prior to the detailed evaluation, IRCTC will determine
whether each bid is complete, and is substantially responsive to
the bidding documents. For purposes of this determination, a
substantially responsive bid is one that conforms to all the terms,
conditions and specifications of the Tender Documents without
material deviations, exceptions, objections, conditionality, or
reservations. A material deviation, exception, objection,
conditionality, or reservation is:
a. One that limits in any substantial way the scope, quality, or
performance of the product/material/stores.
b. One that limits, in any substantial way that is inconsistent with
the Tender documents, the Purchaser rights or the successful
bidders' obligations under the contract; and
c. One that the acceptance of which would unfairly affect the
competitive position of other bidders who have submitted
substantially responsive bids.
If a bid is not substantially responsive, it will be rejected by the
Authority and may not subsequently be made responsive by the
bidder by correction of the nonconformity. The Authority's
determination of bid responsiveness will be based on the contents
of bid itself and any written clarifications sought by the
Authority in writing the response to which shall also be in
writing and no change in rates shall be sought, offered or
permitted."
9. Annexure IC (format of affidavit) to be submitted by the tenderer reads
as under:
"Annexure-'IC'
AFFIDAVIT
I,____ , S/o Sh______ , aged about ____years, Prop/authorized
signatory of ______ do hereby solemnly affirm and declare as
follows:-
1. I say that I am an authorized signatory of the company/firm
_____and hence competent to sign and swear this affidavit.
2. That the company/firm namely______ has not been
debarred/blacklisted/banned by IRCTC or Railways or Ministry of
Railways/other CPSUs/Govt. Deptt.
3. That I undertake to inform IRCTC about any ban or blacklist
imposed by IRCTC/Railway/Ministry of Railway in future and
understand that the award shall be kept in abeyance for the period
of ban/blacklisting.
4. That the affidavit is given for participation in empanelment
process with IRCTC.
DEPONENT
Verification
I, the above named Deponent do hereby solemnly affirm and state
that the contents of this affidavit are true and correct and no part
of it is false and nothing material has been concealed there from.
Verified at New Delhi on this _____day of____ , 20___ /____.
DEPONENT"
10. Thereafter, Annexure IC was revised, which reads as under:
"Annexure-'IC'(Revised)
AFFIDAVIT
I,_____ , S/o Sh_____ , aged about_____ years, Prop/authorized
signatory of _____ do hereby solemnly affirm and declare as
follows:-
1. I say that 1 am an authorized signatory of the
company/firm_____ and hence competent to sign and swear this
affidavit.
2. That the company/firm namely _____ has not been
debarred/blacklisted/ banned by IRCTC or Railways or Ministry
of Railways/other CPSUs/Govt. Deptt.
3. That 1 undertake to inform IRCTC about any ban or blacklist
imposed by IRCTC/Railway/Ministry of Railway in future and
understand that the award shall be kept in abeyance for the period
of ban/blacklisting.
4. That the affidavit is given for participation in tenders with
IRCTC.
DEPONENT
Verification
I, the above named Deponent do hereby solemnly affirm and state
that the contents of this affidavit are true and correct and no part
of it is false and notliing material has been concealed there from.
Verified at New Delhi on this day___ of ____, 20___ /____
DEPONENT"
11. The material difference between the two annexures is in the last
paragraph. The only difference is, that as per the revised Annexure IC
the affidavit was to read as "That the affidavit is given for participation
in tenders with IRCTC" instead of "That the affidavit is given for
participation in empanelment process with IRCTC". In our view, there
is no material irregularity in the submission of Annexure IC. In fact, a
conjoint reading of clauses 4.3, 5.3 and 5.4 would leave no room for
doubt that IRCTC was well within its rights to waive any minor
infirmity or irregularity in a bid which did not constitute a material
deviation. The irregularity, in our view, would not prejudice or affect
the relative ranking of any other bidders. Further, Clause 5.4 also states
what constitutes a substantial deviation from the terms of the bid.
12. In the facts of this case, we are of the opinion that the IRCTC should
have used their discretion in view of Clause 5.3 to waive the minor
infirmity. Resultantly, the present petition is allowed. E-tender dated
15.03.2019 is quashed. The petitioner shall be considered for financial
bid in accordance with law. Rule is made absolute.
13. The petition and C.M.36315/2019 stand disposed of.
G.S. SISTANI, J
JYOTI SINGH, J
AUGUST 13, 2019/rb
