Delhi High Court
Attotek Co. Ltd. vs Energy Efficiency Services ... on 30 May, 2019
$~5, 6 & 8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 30th May, 2019
+ W.P.(C) 6123/2019 & CM Appl.26371/2019
+ W.P.(C) 6157/2019 & CM Appl.26489/2019
+ W.P.(C) 6162/2019 & CM Appl.26499/2019
ATTOTEK CO. LTD.
ZAM CO. LTD.
FUJI LITECH CO. LTD. ..... Petitioners
Through: Mr. V.K.Garg, Senior Advocate with
Mr. Ankur Chhibber, Mr. Aditya
Chhibber and Ms. Noopur Dubey,
Advocates
versus
ENERGY EFFICIENCY SERVICES LIMITED AND ORS.
.....Respondents
Through: Mr. Samdarshi Sanjay, Advocate with
Mr. Prakash Jha, AGM for EESL
Mr. Ajay Digpaul and Mr. Himanshu
Pathak, Advocates for R-2
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE JYOTI SINGH
G.S. SISTANI, J. (ORAL)
1. The present three writ petitions raise almost identical issues. The facts
are also somewhat common. Accordingly, with the consent of the parties,
these petitions are being heard together and disposed of by this common
judgment.
2. Respondent No.1 is a joint venture of four National Public Sector
Undertakings viz. NTPC Limited, Power Finance Corporation Limited,
Rural Electrification Corporation Limited and POWERGRID Corporation of
India Limited. On 15th February, 2019, the respondent No.1 vide Bid
Invitation bearing EESL/2018-19/ICB/Phase-II/SLNP-181902039 invited
bids for design, manufacturing, testing, supply and seven year warranty of 10
lac LED streetlights and other related works under PAN India-Street Light
National Program (SLNP). In terms of the Bidding Document, the bid was
an international competitive bidding, which was to be conducted in
accordance with the Asian Development Bank (ADB) Single Stage: Two
Envelop Bidding Procedure and was open to all the bidders with no country
restriction. As per the initial Bid Document, the soft copy of the bid was
required to be uploaded by 1400 hours (IST) on 6 th April, 2019. This was
eventually extended upto 1400 hours (IST) on 24th May, 2019. As per Clause
11 of the Bid Data Sheet, the original documents were to be received upto
1100 hours (IST) on 6th April, 2019 and the Technical Bid was to be opened
online on 6th April, 2019 by 1430 hours (IST). This Schedule was
subsequently changed and eventually, Technical Bid was to be opened on
24th May, 2019 by 1430 hours (IST).
3. The petitioners are Korean Companies and according to the
petitioners, as they fulfilled all the necessary eligibility conditions, as
mentioned in their Bid Document, they received their Digital Signature
Certificate on 26th April, 2019 in W.P.(C) No.6123/2019; on 1st May, 2019
in W.P.(C) No.6157/2019 and on 15th May, 2019 in W.P.(C) No.6162/2019.
They had also deposited the fee of Rs.5,000/- for portal registration on
separate dates and got themselves registered with the E-procurement Portal
on 1st May, 2019.
4. It is an admitted position that in terms of the invitation to Bid
Document, in the case of an International bidder, the Price Bid was to be
given in foreign currency, which was USD as per Instructions to Bidders
No.15.1 (for short „ITB‟). The petitioner in W.P.(C) No.6157/2019
successfully uploaded the Technical Bid on 23rd May, 2019. However, the
complaint of the petitioner is that the petitioner tried to upload their Price
Bid on 23rd May, 2019 at 2345 hours and on 24th May, 2019 at 10:00 A.M.
till 01:45 P.M. in USD in Schedule-2, but the E-portal did not accept the
same, as there was no option of USD shown on the website.
5. Mr. V.K.Garg, learned senior counsel appearing for the petitioners,
has submitted that the petitioners separately tried uploading the bid
documents several times. However, every time, they faced the same
difficulty, whereby the petitioners did not get an option to choose USD,
which was to be done in the case of an International bidder. Identical is the
complaint of the petitioners in the other two writ petitions.
6. The petitioners having not been able to successfully choose the option
of currency as USD, immediately, through their representatives, made
several calls to the Helpline Number, but received no satisfactory response.
On the same day, a representation was also made by the petitioners,
however, no response was received. This has lead to the filing of the present
writ petitions.
7. Mr. Garg has strongly urged before us that the petitioners were ready
with all their documents and there would be no reason for them not to
complete the formalities and it is only on account of a technical glitch that
despite repeated attempts, they did not get an option to choose the currency
of USD, which was to be done in the case of an International bidder. He
further contends that it is immaterial that the petitioners had tried to upload
their Price Bid on the last date, as long as it was within the cut off timeline.
Reliance is placed by Mr. Garg on the case of L&T Hydrocarbon
Engineering Ltd. v. Oil and Natural Gas Corporation Ltd. & Anr., 249
(2018) DLT 382 (DB), more particularly, paragraphs No.57 and 59, which
we reproduce below: -
"57. Given the aforesaid narrative of the facts and
circumstances where two distinct activities were recorded by
the FSL Teams in the petitioner's area demarcated on the
server of the respondent No. 1/ONGC, one at 13:59:02 and the
other at 13:59:19 hours on 05.02.2018, the version of the
petitioner rings true that the said two activities that had taken
place at the nick of the time, just before the submit deadline,
i.e., 14:00:00 hours on 05.02.2018, were nothing but the last
and final step of pressing the "Submit Button", which for some
technical reason, did not register in the server log of the
respondent No. 1/ONGC.
XXX XXX XXX
59. Aggrieved by the said decision, the petitioner in the
captioned case had approached the Supreme Court that had
identified two issues for a decision. Firstly, whether the bid
documents that were uploaded by the respondent/writ
petitioner could be retrieved or were irretrievably lost.
Secondly, assuming that the bid documents could be retrieved,
whether the first respondent was at all entitled to
consideration of the bid submitted by it. On directions, NIC
had filed an affidavit before the Supreme Court stating inter
alia that the data uploaded by the respondent/writ petitioner
was irretrievably lost and could not be retrieved under any
circumstances and it had reiterated its stand that the said bid
was invalid since the "Freeze Button", which alone would
have completed the bid process, was not pressed. Given the
aforesaid position, the Supreme Court concluded that when
NIC that had developed the portal, had stated that retrieval of
documents even jointly with the petitioner was not feasible and
further, in the absence of any glitch in the technology that
would strongly indicate that the bid submitted by the
respondent/writ petitioner was a valid bid, it could not be
granted a second chance by virtue of the orders passed by the
High Court."
8. Learned counsel appearing for the respondents, at the very outset,
submits that there was no technical glitch and thus, the respondents cannot
be faulted for the inability of the petitioners to upload their Price Bid.
9. Learned counsel for the respondents has drawn attention of this Court
to various conditions in the tender document to submit that the reliefs sought
in these writ petitions cannot be allowed.
10. Some of the conditions of the tender document, which have been
relied upon and referred to by learned counsel for the parties, are reproduced
below: -
"6.1 Registration on e-Procurement portal: As stated above,
Bidders have to be registered in the e-Procurement portal to
be able to participate in tenders published on the site.
Registration of each organization is to be done by one of its
senior persons who will be the main person coordinating for
the e-tendering activities. In portal terminology, this person
will be referred to as the 'Super User' (SU) of that
organization. For further details, please visit the website
wvw.eeslindia.org, and click on the 'E-Tendering' link (on the
Home Page), and follow further instructions.
XXX XXX XXX
6.2 ........
For proper uploading of the bids on the portal namely
https://eesl.erpoc.in it shall be the sole responsibility of the
bidders to apprise themselves adequately regarding all the
relevant procedures and provisions as detailed at the portal as
well as by contacting M/s C1India Pvt Ltd,Gurgaon directly,
as and when required, for which contact details are mentioned
above. The Purchaser in no case shall be responsible for any
issues related to timely or properly uploading/submission of
the bid in accordance with the relevant provisions of Section II
-.ITB of the Bidding Documents."
"15.1 Bid prices shall be quoted in the following currencies:
(a) Bidders may express their bid price in any fully
convertible currency. If a Bidder wishes to be paid in a
combination of amounts in different currencies, it may
quote its price accordingly but shall use no more than
three currencies in addition to the currency of the
Purchaser's country.
(b) If some of the expenditures for the Related Services
are to be incurred in the borrowing country, such
expenditures should be expressed in the Bid and will be
payable in the Purchaser's currency."
11. Additionally, learned counsel for the respondents has relied upon ITB
7.1 and ITB 23.1(a). We reproduce the same as under: -
ITB 7.1 For the purpose of obtaining clarification only, the
Employer's address is:
Attention: Mr Rajneesh Rana^
GM (BD & Contracts)
Energy Efficiency Services Limited,
6th Floor, Core-3,
Scope Complex, Lodhi Road,
New Delhi-110003
Ph: 01.1-45801260
E-mail address: [email protected]
No physical bids may be sent by the bidders at this
address. EESL shall not accept any physical bids.
Requests for clarification should be received by
the Employer no later than: 21 days prior to the
deadline for submission of bids The Employer
shall publish its response to the queries in the e-
Tendering platform where the tender is published
online.
D. Submission and Opening of Bids
ITB 23.1 (a) Replace the paragraph with following:
Bidders shall only submit Bids electronically
through EESLs e-Tendering Portal
i.e. https://eesl.eproc.in
Instructions for electronic submission are
outlined in 1TB 23.1 (b). Hard Copy submission
of bids is not permitted and shall not be
accepted.
Bidders should enrol online on the-e-Tendering
platform of EESL.
Bidders shall obtain a Digital Signature
Certificate (DSC) as prescribed in the e-
Tendering portal to complete online enrolment,
and bid submission. The Bidder is advised to
submit its bid online in the e- Tendering
platform well in advance before the prescribed
time.
Bids submitted online in the e-Tendering
platform shall be considered as the original of
the bid.
12. Learned counsel for the respondents has strongly relied upon Clause
6.2, which we have extracted above, to show that in case, while submitting
the bid, there was any clarification required, the Helpline Number was
provided. He submits that the aim and objective of this facility was to make
E-registration smooth and to assist any prospective bidder. Without
admitting that there was any technical glitch or that the persons available at
the Helpline Number did not ably assist the petitioners, learned counsel for
respondents submits that if at all this facility was invoked by the petitioners,
it may have been at the very last minute and for this reason, may be no
satisfactory response could have been received by the petitioners. Learned
counsel highlights the fact that this Clause clearly states that the purchaser in
no case would be responsible for any issues related to timely or properly
uploading/submission of the bid in accordance with the provisions. He
submits that in view of ITB 7.1, no physical bid can be accepted. Thus, the
representation so made and the reliefs so sought cannot be permitted as the
same are against the very conditions of the tender document. ITB 23.1(a) is
relied upon for the same submission that the bidders can only submit bids
electronically and not through hard copies.
13. We have heard the learned counsels for the parties and carefully
examined the terms of the Bid Document and considered the submissions
made before us. The basic issues are not in dispute. It is also not in dispute
that the petitioners attempted to upload their Technical Bid on the last date
i.e. 24th May, 2019, although well before 1400 hours. The sum and substance
of the arguments of Mr. Garg is that the bid was to be made in foreign
currency, which was admittedly USD. Mr. Garg submits that when the
online e-portal was accessed, there was no option of USD on the website and
repeated attempts by the petitioners were unsuccessful and thus, according to
him, there was a technical glitch in the system and therefore, the petitioners
cannot be faulted and the reliefs so prayed should be granted.
14. Learned counsel for the respondents has categorically submitted, on
instructions, that there was no technical glitch which prevented the
petitioners to access the e-portal. He submitted that if the petitioners, as
claimed by them, were searching for an option of „USD‟ to enter the price
bid, whereas the option available on the portal was "foreign currency", then
they are to be blamed for this lapse and the respondents cannot be faulted.
He further submitted that all that the petitioners were required to do was to
press the "foreign currency" icon and enter the price bid, which would have
automatically converted itself into USD.
15. Mr. Garg, per contra, submitted that the confusion was created by the
respondents and the petitioners cannot be made to suffer. Initially, Clause
15.1 of the bidding documents permitted the international bidders to quote
using up to three currencies, in combination, but subsequently the said clause
was partially amended and the international bidder was allowed to quote
either the currency of the purchaser‟s country i.e. INR or USD. The
argument is that under the initial condition when three currencies were
permissible, an option of "foreign currency" was understandable, but when
the currency was restricted to USD for international bidders, the said option
should have read as USD and the term "foreign currency" only created
confusion.
16. The submission made by Mr. Garg that since the petitioners were
international bidders and could quote only in USD as per the tender
conditions, the use of the terminology "foreign currency" created confusion
may have some truth qua the petitioners, but the fact of the matter is that the
petitioners were well aware of the tender conditions before they commenced
the process of bidding. In fact, as the chronology in the writ petition itself
indicates, the bids were invited on 15th February, 2019 and although initially
the bids were to be uploaded by 6th April, 2019 the last date was
subsequently extended upto 24th May, 2019. Though, in the integrum there
were some amendments to certain conditions but the petitioners had ample
time to seek any clarification on whatever confusion they may have had.
Though, it is rightly contended by Mr. Garg that a tenderer has an option to
bid till the last date but it is not understood as to why a tenderer who had a
confusion in his mind would wait upto the last date. Moreover, reading of
para 14 at page 17 of the paper book itself shows that the petitioners had
uploaded the technical bid on 23rd May, 2019 and had thereafter tried to
upload the price bid also on the same day at 23:45, but the e-portal did not
accept the same as there was no option of USD on the site. At this stage also
if not on an earlier date the petitioner could have sought clarification or
approached the helpline number in case, he was unsuccessful in uploading
the price bid. No such efforts were however made on the 23 rd May, 2019
and in fact another attempt was made to upload the price bid on 24 th May,
2019 between 10:00 a.m. to 1:45 p.m. Therefore in a situation like the
present where the tender conditions were known at least three months in
advance and where even a date prior to the last date the bid was not accepted
by the portal but no efforts were made by the petitioners to seek help or
clarification and they waited for the last minute on the last date to upload, it
was not open for the petitioners to argue that the column of foreign currency
created a confusion or that they could wait up to the last minute to bid. In
fact a perusal of clause 6.2 of the tender conditions shows that the
respondents had clearly stipulated therein that it would be the sole
responsibility of the bidders to apprise themselves adequately regarding all
relevant procedures and provisions and further that the purchaser will not be
responsible for any issues relating to uploading or submission of the bid.
Additionally, para 23.1 (a) clearly mentions that the bidder is advised to
submit its bid online well in advance before the prescribed time. Having
waited till the last date to upload and not having resorted to any method of
removing a confusion if any, the petitioners cannot now be permitted to
blame the respondents for not having accepted they price bid.
17. As far as the argument of a technical glitch in the portal is concerned,
we find no force in the same as the petitioners have not pointed out any
document which would indicate any technical glitch in the portal. The
learned counsel for the respondent has made a categorical assertion on
instruction from his clients that there was no technical glitch and in the
absence of any rebuttal on record by the petitioner we cannot but accept the
stand of the respondents in this regard.
18. Another factor that persuades us not to accept the stand of the
petitioners is that laying down tender conditions is the domain of the
purchaser. It is not for this Court to re-write or re-script the tender
conditions and the schedules attached thereto. The argument of the learned
senior counsel for the petitioners that the word foreign currency has been
wrongly mentioned and the same should have been denoted as USD is
virtually amounting to seeking a direction from this Court to re-script the
tender documents and its terms and conditions, which we are afraid is not in
our domain. The Hon‟ble Supreme Court in Tata Cellular v. Union of
India, (1994 (6) SCC 651) has held that the Courts can only interfere in the
decision making process and not the decision and certainly judicial
interference cannot extend to re-writing a tender document. We quote paras
70, 74 and 77 of the judgment in the case of Tata Cellular (supra) as under:
"70. It cannot be denied that the principles of judicial review
would apply to the exercise of contractual powers by
Government bodies in order to prevent arbitrariness or
favoritism. However, it must be clearly stated that there are
inherent limitations in exercise of that power of judicial
review. Government is the guardian of the finances of the
State. It is expected to protect the financial interest of the
State. The right to refuse the lowest or any other tender is
always available to the Government. But, the principles laid
down in Article 14 of the Constitution have to be kept in view
while accepting or refusing a tender. There can be no
question of infringement of Article 14 if the Government tries
to get the best person or the best quotation. The right to
choose cannot be considered to be an arbitrary power. Of
course, if the said power is exercised for any collateral
purpose the exercise of that power will be struck down.
XXX XXX XXX
74. Judicial review is concerned with reviewing not the
merits of the decision in support of which the application for
judicial review is made, but the decision making process
itself.
XXX XXX XXX
77.The duty of the court is to confine itself to the question of
legality. Its concern should be:
(i) Whether a decision making authority exceeded its
powers?
(ii) Committed an error of law,
(iii) Committed a breach of rules of natural justice,
(iv) reached a decision which no reasonable tribunal would
have reached or,
(v) Abused its powers.
Therefore, it is not for the court to determine whether a
particular policy or particular decision taken in the
fulfilment of that policy is fair. It is only concerned with the
manner in which those decisions have been taken. The
extent of the duty to act fairly will vary from case to case.
Shortly put, the grounds upon which an administrative
action is subject to control by judicial review can be
classified as under:
(i) Illegality: This means the decision maker must
understand correctly the law that regulates his decision
making power and must give effect to it.
(ii) Irrationally, namely Wednesbury unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule
out addition of further grounds in course of time. As a
matter of fact in R.V. Secretary of State for the Home
Department, ex Brind Lord Diplock (1991) 1 AC 694, Lord
Diplock refers specifically to one development namely, the
possible recognition of the principle of proportionality. In
all these cases the test to be adopted is that the court should
"consider whether something has gone wrong of a nature
and degree which requires its intervention."
19. While this certainly may be a case where petitioners may have been
searching for a column of USD where as the column provided was foreign
currency and could not have logged in for the absence of such a column, but
the remedy was to log in well in advance and either to have sought help from
the given help line numbers or as the learned counsel for the respondent
rightly submitted they could have put the figures under the column "foreign
currency" and attempted to upload the price bid. Having chosen to follow
none of these paths and having waited for the last date to arrive despite
knowing that they were unsuccessful even on 23rd May, 2019 they are not
entitled to any relief from this Court.
20. From the entire gamut of facts we cannot come to a conclusion that
the respondents have acted in an illegal or arbitrary manner. We find no
fault even with the decision-making process and there has been no technical
glitch also in the e-portal. Resultantly, we find no merit in the petitions.
21. The petitions along with pending applications are accordingly
dismissed.
G.S. SISTANI, J
JYOTI SINGH, J
MAY 30, 2019
s
