Delhi High Court
Macpower Cnc Machines Limited vs Union Of India, Through ... on 24 December, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 05.10.2020
% Judgment delivered on: 24.12.2020
+ W.P.(C) 3942/2020 and C.M. Nos. 14146/2020, 24753/2020 &
24756/2020
MACPOWER CNC MACHINES LIMITED ..... Petitioner
Through: Mr. Amar Dave, Mr. Pradhuman
Gohil, Ms. Ranu Purohit, Ms. Tanya
Srivastava, Mr. Updendra Sai &
Ms.Jasleen Bindra, Advocates.
versus
UNION OF INDIA, THROUGH DEVELOPMENT
COMMISSIONER MINISTRY OF MICRO SMALL
AND MEDIUM ENTERPRISES (MSME) ..... Respondent
Through: Mr.Vikas Mahajan, CGSC for the
respondent/ UOI.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
JUDGMENT
VIPIN SANGHI, J.
1. The petitioner has preferred the present writ petition to assail the
Summary of Bid Evaluation of Package 41 dated 05.06.2020, whereby the
petitioner‟s technical bids in respect of Lots 4,5 and 6 of Package 41 have
been held to be "technically non-responsive but commercially responsive"
and, consequently, the tender in question has not been awarded to the
petitioner, despite the petitioner being the lowest bidder in respect of the
said Lots. The petitioner seeks a direction that it be declared technically
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By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
responsive in respect of its bids for Lots 4,5 and 6, and for a direction that
the respondents should award the tender to the petitioner in respect of Lots
4, 5 and 6. The petitioner has sought certain other reliefs consequential in
nature to the main reliefs sought by it, as aforesaid.
Petitioner's Submissions
2. The case of the petitioner is that the petitioner company is a reputed
and one of the fastest growing Computer Numerical Control (CNC)
Machine manufacturers in India. The petitioner claims that it is positioned
at Number 1 amongst the top 5 manufacturers. The petitioner states that it
has successfully delivered and commissioned various kinds of CNC
machines to Government PSUs like DRDO, HAL, ISRO, CIPET etc. The
petitioner manufactures CNC Turning Machines for purposes of training at
heavy duty training centers, CNC Turnmill center with 5 Axis with Sub
spindle, Vertical Turret Lathe (VTL), Vertical machining center (VMC),
Horizontal machining center (HMC) and CNC grinding centre. The
petitioner states that it has successfully bid for various projects, and has been
awarded several projects by the Government in the past. The petitioner
claims to have supplied approximately 5,000 machines till date in various
industry segments such as Automobiles, Agriculture, Plastics, Defence,
Heavy engineering, Tool Room, Education, Aeronautics etc. The petitioner
has been granted the Highest Credit Worthiness rating by CRISIL of MSEI.
3. The petitioner states that the Government of India received financing
from the International Bank for Reconstruction and Development (IBRD) in
the form of a loan to meet the cost of a project called Technology Centre
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ROHELLA
Signing Date:24.12.2020 16:10
System Programme (TCSP). The Office of the Development Commissioner
(MSME), Ministry of MSME, Government of India (which is the
respondent) is the implementing agency for the project. A portion of the
proceeds received from IBRD was intended to be utilised for making
payments under the contracts, for which the respondents invited bids. The
respondents issued an online General Procurement Notice for the aforesaid
project on 07.07.2014, and the same was published on UNDB.
4. The petitioner states that on 28.02.2019, the respondent - which is the
implementing agency, invited electronic bids for Package 41 from eligible
and qualified bidders for "Supply of 12 Lots of Machines and Equipments
required for training at New & Existing Technology Centres". The petitioner
states that the salient condition of the bidding process as per the bid
document were the following:
i. Bid document was available for download online and had
to be submitted online.
ii. The bidding procedure provided for Instructions to
Bidders (ITB), Bidding Data Sheet (BDS), Evaluation and
Qualification Criteria and Bidding Forms.
iii. Bid price was to be provided by bidders and adjustment
of price was not allowed subsequently as per ITB 14.
iv. Bid was to be supported by Letter of Bid as per ITB 17.
v. Bid security was to be furnished in terms of ITB 19.
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ROHELLA
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vi. Modification/ substitution of bid was allowed as per ITB
25 but not between deadline for submission of bid and
expiration of period of bid validity.
vii. Bid was to be opened online at the Office of
Development Commissioner as per ITB 25.1. The electronic
summary of all the bids at the time of opening will be generated
and kept online and will be available for viewing by
participating bidders.
viii. Responsiveness was to be determined as per ITB 29.
Substantially responsive bid was one that meets requirements of
bidding document without deviation. ITB 30 provided
Respondent liberty to waive non-conformity in responsiveness.
ix. As per ITB 33.1 margin of domestic preference shall
apply.
x. Lowest value bid was to be determined as per ITB 35.
xi. Contract was to be awarded to lowest evaluated bid that
is substantially responsive as per ITB 38.
xii. Prior to notification of contract, purchaser shall notify
successful bidder and at the same time within 4 weeks convey
to all bidders the result of bid, name of bidders whose bid were
rejected, and reasons for the same as per ITB 40.
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ROHELLA
Signing Date:24.12.2020 16:10
5. The petitioner states that the respondents provided the Technical
Specifications for supply of 12 Lots of machines and equipment for training
at new and existing technology centres on its portal. The respondents issued
Corrigendums 1,2 and 3. Consequently, the time period for submission of
bids and bid opening were extended from time to time. The final date for
submission of bid was revised as 18.07.2019, and the online opening of the
bid was fixed on the same day.
6. The submission of the petitioner is that the petitioner submitted its
bids for Lots 4,5 and 6 within the prescribed time. The petitioner submitted
bid security to the tune of Rs, 61,61,000/- in the form of bank guarantee in
support of its three bids for the three Lots. The petitioner further states that
as per the clause 36.1 of the ITB, the bidders were required to provide
documentary evidence in support of their qualification for making the bid,
and the petitioner submitted the documents to show its experience and
technical capacity by submitting copies of the purchase orders in respect of
the CNC Machines - for which bids were invited. The petitioner also
provided performance statement of last three years from the date of bid
opening, year wise, for each Lot separately. The petitioner also made a
declaration that it meets the eligibility criteria, and detailed the total price
and completion schedule in its bid. The petitioner states that it fully met the
technical specifications prescribed by the respondents in the tender. The
petitioner relies on clause 29.2 of the ITB which delineates as to which bids
are considered substantially responsive. It is the petitioner‟s submission that
a bid which is a substantially responsive bid could not be rejected as "non-
responsive", unless it has a material deviation/ reservation or omission as
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ROHELLA
Signing Date:24.12.2020 16:10
explained in the aforesaid clause. Clause 29.2 of the ITB, insofar as it is
relevant, reads as follows:
―29.2 A Substantially responsive Bid is one that meets the
requirements of the Bidding Documents without material
deviation, reservation, or omission. A material deviation,
reservation, or omission is one that :
a. If accepted, would
i. Affect in any substantial way the scope,
quality, or performance of the Goods and Related
Services specified in the Contract; or
ii. Limit in any substantial way, inconsistent
with the Bidding Documents, the Purchaser's
rights or the Bidder's obligations under the
Contract; or
b. If rectified, would unfairly affect the competitive
position of other bidders presenting substantially
responsive bids.‖
7. The case of the petitioner is that on 18.07.2019, the bids were opened
online. The minutes of the bid opening of ICB Package 41 were provided to
the petitioner on 30.07.2019. The petitioner states that on 05.06.2020,
Summary of Bid Evaluation of Package 41 was provided by the Director
(TCSP) with regard to the responsiveness of the bids received. The
petitioner states that it was shocked and surprised that in respect of Lots 4,5
and 6 all the bidders, including the petitioner, were held to be technically
non-responsive. At the same time, for Lots 1 and 3, the contract was
awarded to M/s. Phillips Corporation, and for Lots 7, 8 and 10, the contract
was awarded to M/s. ONA Electronics S.A. The contract for Lots 11 and 12
was awarded to M/s. Mitutoyo South Asia Pvt. Ltd. The petitioner submits
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By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
that despite the tender being for the growth and promotion of domestic
MSMEs - which object was also reflected in the tender document, all the
contracts that were awarded, were awarded to international firms and
companies. At the same time, the petitioner was unfairly labelled as
"technically non-responsive‖ in respect of Lots 4,5 and 6. The case of the
petitioner is that the rejection of the petitioner‟s bids in respect of Lots 4,5
and 6 is completely wrong, mindless, arbitrary, discriminatory, and contrary
to the terms of the tender itself. The petitioner states that it repeatedly called
upon the respondents to provide reasons for rejection of its technical bids for
the three Lots aforesaid. On 19.06.2020, the respondent provided the
reasons for rejection of the bids of the petitioner for Lots 4, 5 and 6 of
Package 41. The said reasons were as follows:
"
Lot Brief reason for rejection
No.
4 Technically Non-responsive:
a) Clause No. 5.3: Bidder has mentioned Run
out on test bar: 0.010mm or less [Test Bar
Length 300mm] Runout at Nose: 0.003mm
or better in the compliance statement.
Tender Specified runout on test bar at
300mm is 0.010mm and at nose is 0.003mm.
Whereas according to the bidder's
submitted test chart the runout on test bar
at 300mm is 0.020mm and at nose is
0.010mm.
In view of above technical non-compliance with
supporting evidence, the bid is technically not
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ROHELLA
Signing Date:24.12.2020 16:10
complied.
5 Technically Non-responsive:
a) Clause No. 6.3: Bidder has mentioned Run
out on test bar: 0.005mm or less [Test Bar
Length 300mm] Spindle Run out 0.003mm or
less run out at Nose or better in compliance
statement. As per bidder's submitted test
chart runout on test bar at 300mm is
0.020mm and runout at nose is 0.010mm
against tender specified spindle runout at
300mm is 0.005mm or less and at nose is
0.003mm or less.
In view of above technical non-compliance with
supporting evidence, the bid is technically not
complied.
6 Technically Non-responsive:
a) Clause 6.3: Bidder has mentioned Run out
on test bar: 0.010mm or less [Test Bar
Length 300mm] Runout at Nose: 0.003mm
or better in compliance statement. As per
bidder's submitted test chart runout on test
bar at 300mm is 0.020mm and runout at
nose is 0.010mm against tender specified
spindle runout at 300mm is 0.010mm or
less and at nose is 0.003mm or better.
In view of above technical non-compliance with
supporting evidence, the bid is technically not
complied.
"
(emphasis supplied)
8. The submission of the petitioner is that the reason for rejection of the
petitioner‟s technical bids is completely erroneous. The reasons disclosed
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By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
for rejection of all the three bids is the alleged non-compliance of clause 6.3
set out hereinabove. The petitioner points out that in its bid, it has quoted
the specifications exactly in terms of the requirements of the bids, and this is
also acknowledged in the reasons, as recorded.
9. The petitioner submits that the respondents have erroneously and
mindlessly proceeded on the assumption that the CNC Machines offered by
the petitioner do not meet the run out on test bar as stipulated. The
respondents have falsely claimed that according to the petitioner‟s submitted
test chart, the run out on test bar at 300 mm is 0.020 mm, and run out at nose
is 0.010 mm, against the tender specified spindle run out at 300 mm of 0.01
mm or less, and at nose of 0.003 mm or better.
10. The petitioner states that while making the bids, the petitioner has not
made any deviation in the technical specification as provided for in
Annexure A to Section VII of the bid documents. The petitioner submits
that as per Clause 16.3 of the ITB read with the addendum, any deviation if
given anywhere else than in Annexure A of Section-VII, will not be
considered. Original Clauses 16.2 and 16.3 of the ITB, along with the
addendum thereto read as follows:
―16. Documents establishing the eligibility and conformity of
Goods and Related Services.
16.1 x x x x x x x x
16.2 To establish the conformity of the Goods and Related
Services to the Bidding Documents, the Bidder shall furnish as
part of its Bid the documentary evidence that the Goods
conform to the technical specifications and standards specified
in Section VII. Schedule of Requirements.
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By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
16.3 The documentary evidence may be in the form of
literature, drawings or data, and shall consist of a detailed item
by item description of the essential technical and performance
characteristics of the essential technical and performance
characteristics of the Goods and Related Services,
demonstrating substantial responsiveness of the Goods and
Related Services to the technical specification, and if
applicable, a statement of deviations and exceptions to the
provisions of the Section VII, Schedule of Requirements.
x x x x x x x x x x‖
11. The following was added to Clause 16.3 by the addendum:
"Bidder must submit items by items Technical Compliance
Statement to the Technical Specification as given in Annexure A
of Section-VII of the bid document clearly bringing out the
deviations, if any. Deviations mentioned elsewhere in the bid
will not be considered.‖(emphasis supplied)
12. The case of the petitioner is that while submitting its bid, the
petitioner had provided only the Format of Inspection Sheets - which
contains the Geometrical Test Chart as per the ISO 10791-2: 2001 (E). To
understand the submission of the petitioner - and also why the respondent
claims that the petitioner‟s bid does not meet the technical specifications, it
is necessary to look into the said Format. We, therefore, reproduce the first
page of the same herein below:
Signature Not Verified
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By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
Signature Not Verified
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By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
13. It would be seen that the last column, the heading whereof reads
"Tolerances in MM Measured" is blank. The other pages of the said Format
of Inspection Sheet also do not contain any data with regard to the
"Measured" quantities in respect of the CNC Machines offered by the
petitioner.
14. The submission of the petitioner is that the above Format sets out the
tolerances in (MM). It contains two columns. The first column contains the
"Tolerances in MM Permissible" as per ISO, and the second column
contains ―Tolerances in MM as Measured‖. The case of the petitioner is
that the said Format, under the column "Permissible", indicated the
tolerances as per the ISO specification. The respondents, however, desired
higher specifications, which were also offered by the petitioner. The said
Inspection Sheet Format did not contain the measured tolerances in respect
of the petitioner‟s CNC Machinery offered by it, since this was only a
format, and not an actual inspection sheet prepared after the test in respect of
the offered machinery. However, the respondents on their own, and without
any basis, assumed that the tolerances mentioned under the column
"Permissible", are also the "Measured" tolerances in respect of the CNC
Machines offered by the petitioner under the tender in question. The
submission of the petitioner is that the blank column under the heading
"Measured", firstly, did not constitute a material deviation, reservation, or
omission, and in any event, the addendum to Clause 16.3 of the ITB, inter
alia, provided that "deviations mentioned elsewhere in the bid will not be
considered." The petitioner has placed on record the Technical Sheet for the
three Lots submitted by it along with its said three bids, and points out that
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By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
in the said Technical Sheets, against serial no. 6.3, the petitioner had clearly
quoted the specifications as desired by the respondent. For instance, in
respect of Lot 5, the Technical Sheet contained the petitioner‟s offered
specification as follows:
3 Axis CNC
Milling Machine
(Medium Bed Size)
S.N. Machine Bidder's
Description Specification ** Compliance
[Ref. Footnote]
6.3 Run out on test barRun out on test
0.005 mm or less bar : 0.005 mm Complied
[Test Bar Length or less [Test Bar
300 mm] Length 300 mm]
Spindle Run out: Spindle Run
0.003 mm or less Out: 0.003 mm
run out at nose or or less run out at
better. nose or better.
(underlining supplied)
15. The further submission of the petitioner is that the action of the
respondents is not consistent when it comes to the manner of evaluation of
the technical bids for the other Lots, in respect whereof contracts have been
awarded to other contractors. The petitioner points out that in respect of Lot
1 of Package 41 - bids for 5 Axis Vertical Machining Centre Machines were
invited, and the two bidders who were held to be technically responsive by
the respondents were M/s DeckelMahoPfronten GmbH and M/s Phillips
Corporation. The CNC Machines required under Lot 1 also prescribe a
similar clause for spindle run out, as in respect of Lots 4, 5 and 6, and the
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By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
bidders in respect of Lot 1 complied with the same by providing the same
tolerances as asked - in the same manner in which the petitioner made its
offer in respect of Lots 4,5 and 6. The two bidders, namely M/s
DeckelMahoPfronten GmbH and M/s Phillips Corporation were held to be
technically responsive in respect of Lot 1, even though they did not attach
even the Geometrical Test Chart Format. Yet they were cleared technically.
The petitioner has set out the manner in which M/s DeckelMahoPfronten
GmbH and M/s Phillips Corporation made their bids by merely stating
"complied" in the last column. The technical specifications offered by these
two bidders have been placed on record. The relevant extract from the bids
of M/s Phillips Corporation and M/s DeckelMahoPfronten GmbH in respect
of Lot 1 have been set out by the petitioner in the writ petition. The relevant
extract of the Technical Specifications submitted by them in their technical
bids are as follows:
S. No Machine Bidder‟s Reference Compliance
Description Specifica Page
tion Number/
Section
** Number of
[Ref. Catalogue/
Footnote] Remarks
M/s Phillips
Spindle Run
out
4.12.7 (Max):0.003 0.003 Complied
mm or better mm
at Spindle
nose
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By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
Run out on
test bar at:
4.12.8 0.01 mm or 0.01 mm Complied
better for 300
mm (max)
test bar
M/s
DeckelMaho
4.12.7 Spindle Run
out (Max):
0.003 mm or 0.003
better at mm
Spindle nose
Run out on
test bar
4.12.8 at:0.01 mm or 0.01 mm
better for 300
mm (max)
test bar
16. Another instance of discriminatory treatment pointed out by the
petitioner is in respect of Package 20, where-under the respondents invited
bids for similar CNC Machinery. The petitioner points out that another
bidder i.e. M/s. ACE Manufacturing Systems (AMS) was awarded the
contract, who had given exactly the same tolerance limits in the attached
Geometrical Test Chart against similar clause for spindle run out. In respect
of the said Package, the petitioner preferred W.P.(C) No. 10711/ 2019,
which is still pending. The manner in which M/s. (AMS) made their bids
earlier in respect of Package 20, was as follows:
Signature Not Verified
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By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
" Lot 1 CNC
Milling
Machine
with
SIEMENS
Controller
S.NO. Description Bidder's Reference Compli
Specification Page ance
** Number/
[Ref. Section
Footnote] Number of
Catalogue/
Remarks
6. Run out 0.003 mm run - Yes
(Max): out at spindle
0.003 mm nose.
run out at
5. nose.
6. Run out on 0.005 mm run - Yes
test bar : out at test bar
0.005 mm length of 200
or less ( mm
6 Test Bar
Length 200
mm]
"
17. The petitioner has placed on record the Geometrical Test Chart of
M/s, (AMS) to substantiate the aforesaid submission. The said Chart - like
the petitioner‟s charts in question, gives the "Permissible" Tolerances (As
per ISO), and the "Actual" Tolerances column is blank. The relevant extract
from the Geometrical Test Chart of M/s (AMS) reads as follows:
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By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
Signature Not Verified
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By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
Signature Not Verified
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By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
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By:BHUPINDER SINGH
ROHELLA
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18. It is the petitioner‟s submission that it has been deliberately ousted in
respect of its bids for Lots 4, 5 and 6, only because the petitioner had gone
against the respondents by preferring the aforesaid writ petition. The
petitioner, therefore, alleges an institutional bias against the respondents.
19. During the hearing of the petition, learned counsel for the petitioner
has drawn our attention to some of the relevant clauses of the tender
conditions. We have already extracted Clause 16.3 along with the
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ROHELLA
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addendum. That apart, learned counsel for the petitioner has also referred to
and relied upon Clause 27 of the ITB which states that in the examination,
evaluation, comparison of the bids and qualifications of the bidders, the
purchaser may, at its discretion, ask any bidder for a clarification of its bid.
Clause 27, in its entirety, reads as follows:
―27. Clarification of bids
27.1 To assist in the examination, evaluation, comparison of
the bids, and qualification of the Bidders, the Purchaser may,
at its discretion, ask any Bidder for a clarification of its Bid.
Any clarification submitted by a Bidder in respect to its Bid and
that is not in response to a request by the Purchaser shall not
be considered. The Purchaser's request for clarification and the
response shall be in writing. No change, including any
voluntary increase or decrease, in the prices or substance of the
Bid shall be sought, offered, or permitted except to confirm the
correction of arithmetic errors discovered by the Purchaser in
the Evaluation of the bids, in accordance with ITB 31.
27.2 If a Bidder does not provide clarifications of its bid by
the date and time set in the Purchaser's request for
clarification, its bid may be rejected.‖ (emphasis supplied)
20. The submission of learned counsel is that the respondents did not
resort to this procedure, and proceeded to erroneously make an unfounded
assumption with regard to the tolerance limits offered by the petitioner.
Learned counsel also places reliance on Clause 29.2 which has been
extracted hereinabove. Learned counsel has emphasized that the bids had to
be substantially responsive - as defined in ITB, and a substantially
responsive bid could not be rejected either on a mere hyper-technical
ground, or on a patently wrong reading and interpretation of the ITB, or the
documents submitted by the bidder.
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
21. Learned counsel has also relied upon Clause 29.3, which obliges the
respondent purchaser to examine the technical aspects of the bid submitted
in accordance with ITB 16 and ITB 17, in particular, to confirm that all
requirements of Section VII, Schedule of Requirements have been met,
―without any material deviation, reservation, or omission.‖
22. Our attention has also been drawn to Clauses 30.1 and 30.2. The said
clauses read as follows:
―30.1 Provided that a Bid is substantially responsive, the
Purchaser may waive any nonconformity in the Bid.
30.2 Provided that a bid is substantially responsive, the
Purchaser may request that the Bidder submit the necessary
information or documentation, within a reasonable period of
time, to rectify nonmaterial nonconformities or omissions in
the bid related to documentation requirements. Such omission
shall not be related to any aspect of the price of the Bid.
Failure of the Bidder to comply with the request may result in
the rejection of its Bid.‖ (emphasis supplied)
23. The submission of learned counsel for the petitioner is that in respect
of a substantially responsive bid the purchaser, i.e. the respondent, has the
discretion to waive any non-conformity in the bid. This discretion has to be
exercised judiciously & rationally, and in a non-discriminatory manner. The
submission is that when the same entity, i.e. the respondent, has invited bids
for different Lots under the same package, in respect of the same or similar
machinery & equipments, it cannot adopt different yardstick while
examining the bids submitted in respect of different Lots, and the manner in
which the respondent deals with the bids in respect of different Lots has to
be consistent. It cannot discriminate in the matter of examination of the bids
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ROHELLA
Signing Date:24.12.2020 16:10
of the bidders in respect of different Lots. Learned counsel emphasizes that
Clause 30.2 enables the respondent purchaser to call for necessary
information or documentation within a reasonable period of time, to rectify
non-material non-conformities or omissions in the bid related to
documentation requirements. Learned counsel submits that, whereas, in
respect of other Lots the respondent invoked the said clause, in respect of
Lots 4, 5 & 6, the respondents summarily and erroneously held the technical
bids submitted by the petitioner to be non-responsive on a clearly erroneous
and mindless interpretation of the documents submitted by the petitioner,
without even seeking any clarification in respect there for.
24. Learned counsel for the petitioner submits that the right of the
respondent under Clause 37 to accept or reject any bid has to be exercised
reasonably and rationally. In the process of inviting the bids, the
respondents had expended time and money. Substantial number of bids
have been received from serious bidders who have also invested their time
and money in preparing and submitting their bids. The respondents cannot
whimsically or arbitrarily reject the bids without assigning any cogent
reasons in respect of the three Lots in question, when the bids in respect of
other Lots have been accepted in similar circumstances.
25. Learned counsel for the petitioner then drew our attention to Clause 1
of Section III, which deals with evaluation and qualification criteria. Clause
1, inter alia, provides that "The Purchaser will grant a margin of preference
to goods manufactured in the Purchaser's country for the purpose of bid
comparison, in accordance with the procedures outlined in subsequent
paragraphs". Based on this Clause, it is submitted that the respondents‟
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ROHELLA
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conduct is to the contrary inasmuch, as, the petitioner - which is an Indian
entity - manufacturing in India, has been discriminated against in
comparison to the multinational bidders like M/s. Phillips Corporation and
M/s DeckelMahoPfronten.
26. Learned counsel for the petitioner then drew our attention to the bids
submitted by the petitioner. Along with its bids, the petitioner placed
several orders placed upon the petitioner by Government Authorities for
supply of CNC Machines of the kind for which the tender in question was
called for. Even under Clause 10.4 of the Technical Sheet, the petitioner
reiterated its commitment to meet the technical specifications of the tender
documents.
27. Learned counsel for the petitioner points out that in respect of Lot 1,
the tender documents specifically provided - by incorporating an "Important
Note", that "The bidder must provide exact and relevant input, against the
specified features having ―numerical value‖ or ―% values‖ or any ―specific
requirement‖ in the same format as specified in the tender document. Any
response specifying (Confirmed/ Complied, etc.) may be liable for
rejection." (emphasis supplied). Despite the aforesaid Note, M/s Phillips
Corporation while submitting their bids in respect of Lot 1, merely stated
"Complied" at several places of the Technical Sheet, yet their Technical
Bids were held to be responsive. In this regard, our attention has been
drawn to pages 384 to 388 of the record and we find that M/s Phillips
Corporation had, indeed, merely stated "Complied" under the column
"Bidder‟s Specification (Ref. Footnote)".
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ROHELLA
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28. Mr. Dave, learned counsel for the petitioner has taken us through the
Counter Affidavit of the respondents. The stand taken by the respondents in
their counter-affidavit - to justify the discriminatory manner in which the
petitioner‟s bid in respect of Lots 4, 5 & 6 have been held to be technically
non-responsive, while bids of the other bidders like M/s Phillips
Corporation, M/s DeckelMahoPfronten GmbH and M/s AMS were
entertained (even when the bids were made in similar fashion), is that the
machines in respect of other Lots were required for "training purposes" only
and, therefore, a liberal approach was adopted, whereas the machines
required under Lots 4, 5 & 6 are for manufacturing purposes. Learned
counsel points out that, firstly, the ITB/ bid conditions do not disclose that
different yardsticks would be adopted on the aforesaid ground. Secondly,
even the impugned order dated 19.06.2020 does not state so. Thus, this
stand of the respondents is an afterthought, and has been taken only now in
the Counter Affidavit, to somehow justify the illegal, arbitrary and
discriminatory treatment of the petitioner‟s bids. Learned counsel for the
petitioner submits that if the respondents had any confusion or doubt with
regard to the petitioner‟s technical competence in meeting the technical
specification while supplying the machines, the respondents could and ought
to have called for clarification from the petitioner.
29. The petitioner has placed on record - along with its rejoinder, the
Inspection Sheet in respect of the CNC Machines offered under the tenders
in question for Lots 4, 5 & 6 which contains the measured tolerances and
these tolerances are in terms of the technical specifications laid down in the
tender documents. The Inspection Sheet relates to the supplies made by the
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petitioner way back in the year 2016 and 2019 and can be found on record
from pages 513 and 476.
30. Learned counsel for the petitioner has summed up his arguments by
stating as follows:
I. That the bidding conditions for all Lots under Package 41 was
common, and hence the evaluation process for all Lots in this Package
was legally and morally required to be done consistently. Any
deviation from consistent evaluation, without prior intimation to all
applicants/ bidders in all Lots, is a clear case of discrimination and
foul play. The Respondent has now admitted that an inconsistent
evaluation process was adopted. This admission leaves no room for
any further debate in the matter.
II. The entire foundation to treat the bids of the Petitioner in Lot 4, 5 and
6 as non-responsive was that the evaluating authority had assumed -
on its own, the prescribed ISO specifications as the offered
specifications when, in fact, the column of actual measurement was
blank (since it was only a Format which was placed, and not actual
values). In the Counter Affidavit, an admission has been made by the
respondents as follows:
"Technical Evaluation Committee has considered the
permissible value in absence of actual measured values for
evaluation‖
How such assumption could have been made has not been explained
by the Respondent.
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ROHELLA
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III. Aforesaid being the only reason and ground in the impugned
communication, it is as it is not permissible to add grounds by way of
counter affidavit as an afterthought.
IV. Reliance placed on Clause 16.2 is misplaced. This is also for the
reason that Clause 16.2 was not invoked or cited as a reason while
evaluating the bids for Lot 1 of the same Package, and the
substantially responsive bids were not rejected on that ground.
V. The technical parameters specified in schedule VII (Schedule of
Requirements) had primacy, even in case of any deviation - as per
amended clause 16.3. Therefore, when, admittedly, the correct
required specifications were quoted in the Technical Sheet, there was
no question of declaring the bid of the petitioner as non-responsive.
VI. Crucially, it is the Respondent‟s own case that in respect of Lot1, the
bids of Philips and DeckelMaho (DMG) were only "broadly meeting
the requirements subject to immaterial technical clarifications which
were sought from both these bidders". Philips had submitted a
clarification when sought for by Respondent, whereas no supporting
document (including no test reports) was provided by DeckelMaho.
The specific averments made by the petitioner in paragraph 18.1 have
not been traversed in the Counter Affidavit. At least qua DeckelMaho,
the position is identical with the petitioner, and the respondent has
sought to justify discrimination by only stating that machine under
procurement are different, but this is without any basis. An unfair and
arbitrary evaluation has been made by the Respondent, and there is no
justification for treating petitioner‟s bid as technically non-responsive,
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ROHELLA
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when identically placed bidders, like DeckelMaho, have been
considered as technically responsive, solely on the baseless argument
that the Lots were different, even though, the package and bidding
conditions were common for all the Lots.
VII. In spite of an express and unambiguous condition stating as follows:
―The bidder must provide exact and relevant input, against the
specified features having ―numerical value‖ or ―%values‖ or
any ―specific requirement‖ in the same format as specified in
the tender document. Any response specifying (confirmed/
complied, etc.) may be liable for rejection.‖
The Respondent failed to treat the petitioner at par with Philips and
DeckelMaho - whose bids were not rejected as non-responsive for
Lot 1, even though, in various columns they just wrote "complied",
without assigning actual value which was mandatory. This is another
instance of selective and discriminatory treatment in the present
Package.
VIII. Clause 16.3, as amended, provided:
"Bidders must submit items by items Technical Compliance
Statement to the Technical Specification as given in Annexure A
of Section-VII of the bid document clearly bringing out the
deviations, if any. Deviations mentioned elsewhere in the bid
will not be considered‖. (emphasis supplied)
In their Technical Specifications Sheet at page 305 (for Lot 4), page
314 (for Lot 5) and page 339 (for Lot 6), the Petitioner has mentioned
the technical specifications offered, and also stated „complied‟. The
Petitioner has not deviated from any condition and, as such, no
deviation was mentioned. As per ITB 16.3 above, deviation, if any,
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ROHELLA
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mentioned elsewhere from Section VII were to be ignored and
response to the clause was to be taken as final. A whimsical and
unfounded assumption by the respondents on a reading of the Format
of Inspection Sheet has been wrongly treated as a deviation. Similarly,
M/s. AMS submitted the Geometric Test Chart in similar format and
was declared a successful bidder for Package 20, where even M/s.
AMS has left the actual tolerance column blank. No such defect, as
pointed out in the bid of the Petitioner in the present case, was raised
in the bid of M/s. AMS while holding them successful and awarding
the contract to them.
IX. Supply Orders at page 297, shows that in the past, the petitioner had
fulfilled the technical specifications laid down in Clause 6.3 presently.
Had clarification in this regard - in the spirit of clause 27, been
sought, like it was sought for Lot 1, and on many other earlier
occasions, the Petitioner would have fully satisfied the misconception
of the respondent.
X. Uncontrovertedly, even though other bidders were given an
opportunity to provide clarification, surprisingly, no such opportunity
was provided to the Petitioner. The argument of requirement of
different machines, in different Lots, is a smoke screen, since the
conditions of bid evaluation cannot be applied differently Lot-wise,
especially when the Package was the same. Once the bidding
conditions are common for all the Lots in a Package, it is but logical
and fair that evaluation process is the same for all the Lots. Adoption
of different yardsticks for technical evaluation of the bids - Lot wise,
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ROHELLA
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is nothing but malafide attempt to oust the Petitioner - a local
supplier, and give benefit to other International bidders in other Lots.
It is, therefore, a clear case of arbitrary and malafide conduct on the
part of the Respondent, and it cannot be justified merely by creating a
smoke screen that the Lots were different.
XI. Under clause 11 of the Technical Specifications, the bidders were
asked to provide copy of specific documents to support their answers.
In response to the said clause, the Petitioner has specifically written at
point 5 that the Petitioner has attached Machine Geometric Test
Charts. It is submitted that the Geometric Test Chart submitted by the
Petitioner alongwith the bid was in support of Clause 11 hereinabove,
and was indicative of the format in which the results would be
provided by the Petitioner to the Respondent. (Also the chart shows
the permissible value of tolerance as specified by ISO and actual
value column is left blank as it is a format to show the process
followed).
XII. Even the NITI Ayog has taken a note of rejection of all Indian bidders
based on their ability to supply the required accuracy machine and has
done independent technical evaluation by highest technical institute
for machine tools in India i.e. CMTI (Central Manufacturing
technology of India), and it has cleared many Indian bidders,
including the Petitioner, to be technically capable to supply the
machines with required accuracy mentioned in tender.
XIII. Fresh invitation of bids and evaluation would take time. The matter is
long pending since bid publication on 28.02.2019, and the delay is
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ROHELLA
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hampering the chance of MSME centers to get the latest technology
machines in time. There would be no injustice to any bidder if the
respondent is directed to conduct re-evaluation. This will be
beneficial to all the bidders and department, as it will avoid
unnecessary repetition of process.
Respondent's submissions
31. Mr. Vikas Mahajan, learned Central Government Standing Counsel
has defended the action of the respondents. Mr. Mahajan has, firstly,
referred to Clause 29.3 of the ITB which stipulates that the Purchaser shall
examine the technical aspects of the bid submitted in accordance with ITB
16 and ITB 17, in particular, to confirm that all requirements of Section VII,
Schedule of Requirements have been met without any material deviation or
reservation, or omission. He submits that if a bid is not substantially
responsive to the requirements of the bidding documents, it is liable to be
rejected by the purchaser, and it cannot subsequently be made responsive by
correction of the material deviation, reservation, or omission. His
submission is that the bids of the petitioner in respect of Lots 4,5 and 6 were
technically non-responsive on account of the requirements to Schedule VII
not being met. The run out on test bar reflected in the Test Chart did not
meet the bid stipulations.
32. Mr. Mahajan has also referred to Clause 16.2 which stipulates that to
establish the conformity of the goods and related services to the bidding
documents, the bidder shall furnish, as part of its bid, the documentary
evidence that the goods conform to the technical specifications and
standards specified in Schedule VII Schedule of Requirements. His
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submission is that the petitioner had not provided any document as evidence
to establish that it meets the technical specifications and standards specified
in Schedule VII Schedule of Requirements. He has also referred to
paragraph 7 of the counter affidavit filed by the respondents, which states
that all the bids were technically evaluated in line with ITB clause 29.3 to
determine their technical responsiveness with respect to stipulated Technical
Specification and other technical aspects. The technical evaluation is done
by a duly constituted Committee of technical experts, including external
technical expert. In this case the committee had 10 members, including 2
external technical experts.
33. The respondents state that the present being "A Prior Review Case" of
World Bank, World Bank: "No Objection" was also obtained for "No
Award". Mr. Mahajan drew our attention to the averment made in
paragraph 18.1 of the counter affidavit. The respondents have sought to
explain the difference in the manner of examination of the technical bids in
relation to Lots 4,5 and 6 when compared to the manner of examination of
the technical bids in respect of Lot 1. The respondents have, inter alia,
stated in paragraph 18.1 as follows:
―18.1 The machines under procurement in Lot 1 are different
and not comparable to the machines under Lot 4, 5 and 6 and
petitioner was not a bidder for that Lot. In the evaluation of
Lot 1, there were 5 bids out of which 3 bids were technically
non-complying on number of technical aspects. Whereas, 02
bids -- (i) M/s Phillips and (ii) M/s DMG - were broadly
meeting the requirements subject to immaterial technical
clarifications which were sought from both these bidders
which is a matter of record. The respondent had evaluated
these bids in accordance with the bid document, with due
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ROHELLA
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diligence and the whole of the bid, including supporting
documents as submitted, to determine the substantial
responsiveness. No contradiction, as in the case of petitioner
for Lot 4, 5 & 6, was found in the bids of M/s Phillips and M/s
Deckel Maho.
As regards Lot 1 for clauses 4.12.7 and 4.12.8, the Technical
Evaluation Committee had noted claim of each of these bidders
for values mentioned in their technical compliance statement.
In case of M/s Phillips and M/s DMG, they have mentioned
values in their technical compliance statement which were
meeting the technical requirements and was not contradicting
with any supporting document submitted along with the bid.
Moreover, M/s Phillips had submitted a copy of the purchase
order with the bid clearly indicating that they have fulfilled the
requirements of clause 4.12.7 and 4.12.8, proving their
manufacturing capabilities to meet the specified accuracy
requirements of technical specifications. Copy of the PO from
U.R. Rao Satellite Centre, ISRO (Department of Space, Govt. of
India), submitted by M/s Phillips, the successful bidder, with the
bid is annexed hereto as Annexure R-2. Hence, based on the
available evidence in the bid, M/s Phillips were found
technically responsive and were awarded the contract.
Committee had sought some clarifications from these bidders
for other lots of the same package, and the common documents
submitted in response to these clarifications further confirmed
the responsiveness of M/s Phillips for Lot l in addition to
information already available in the bid which is a matter of
record.
Similarly, the common information furnished by M/s DMG
also substantiated their claim for accuracy requirements of
quoted machine for Lot l as well in-line with values mentioned
in their respective technical compliance statement which is a
matter of record.
Accordingly, it will be wrong to compare the evaluation of Lot l
with that of Lot 4, 5 and 6 as they are for different machines
and the overall background and circumstances of evaluation
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ROHELLA
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were different as mentioned above, which have been duly
considered by the Technical Evaluation Committee maintaining
the sanctity of fair and transparent technical evaluation and
there is no question of any arbitrariness in the award for Lot l
to M/s Phillips as being alleged by the petitioner. Position
become further clear from the following table:
Tender Philips Actual values as Actual
Specifications Compliance per the PO copy values as
Statement submitted with per Test
bid (Annexure Chart
II)
Lot 1 0.003 mm 0.002 mm 0.002 mm
Clause: 4.12.7
Spindle Run out
(Max):0.003 mm
or better at
Spindle nose
Lot 1 0.01 mm 0.01 mm 0.006
Clause: 4.12.8
Run out on test
bar at :0.01 mm
or better for 300
mm (max) test
bar
Hence, the statement of the petitioner in Para 18.1 of petition to
draw comparison of different Lots is not valid and there is no
arbitrariness or malafide conduct of the respondent in
evaluation of the bids.‖
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By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
34. Mr. Mahajan submits that Lot 1 of Package 20 was for training
machines, whereas mac
35. Machines called for in the present Package 41 are for production
machines. Therefore, the technical evaluation undertaken was different.
Mr. Mahajan has also submitted by placing reliance on the counter affidavit
that "In all similar cases where competing bidders have submitted Test
Chart with only Permissible values, without actual/measured values, and
no other supporting document, the Technical Evaluation Committee has
uniformly and consistently considered this value for evaluation,
considering it as the permissible runout values for the machine offered by
the respective bidder, and thereby capability of bidder. If these permissible
values are falling outside the range than that required in the technical
specifications, the bid has been considered as technically non-responsive.
The fact that following bidders (lot wise) were considered non-responsive
because of the said reason, irrespective of the price quoted by them, is a
clear indicator of unbiased and consistent process adopted by Respondent.
The extract of bids and supporting documents are annexed hereto as
Annexure R-1.
Lot No. Tender Bidders Technical Permissible Responsive
Specifications Compliance values as per /Non-
Statement Test Chart responsive
(Clause 6.3)
Run out on test Jyoti Complied 0.020 Non
bar : 0.010 mm Responsive
or less [Test 0.010
Bar Length 300 Ace 0.010 0.020
Manufacturin
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ROHELLA
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mm] g Systems 0.003 0.010
Runout at BFW Complied 0.020
Nose: 0.003
mm or better 0.008
4 Macpower 0.010 0.020
0.003 0.010
Philips* 0.010 0.025
0.003 0.012
HMT 0.020mm 0.020
0.003mm 0.010
Run out on test Jyoti Complied 0.020 Non
bar: 0.005 mm Responsive
or less [Test 0.010
5 Bar Length 300 Ace 0.005 0.020
mm] Manufacturin
g Systems 0.003 0.010
Spindle Run BFW Complied 0.020
out : 0.003 mm 0.008
or less run out
at nose or HMT 0.020mm 0.020
better
0.003mm 0.010
Macpower 0.005 0.020
0.003 0.010
Makino 0.008 0.008
0.003 0.002
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ROHELLA
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Philips* 0.010 0.025
0.003 0.012
Run out on test Jyoti Complied 0.020 Non
bar : 0.010 mm Responsive
or less [Test 0.010
Bar Length 300 Ace 0.010 0.020
mm] Manufacturin
6 g Systems 0.003 0.010
Runout at Nose
: 0.003 mm or BFW Complied 0.020
better
0.008
Macpower* 0.010 0.020
0.003 0.010
Philips 0.010 0.025
0.003 0.012
*Price-wise lowest Bidder irrespective of Responsiveness of Bid
In cases of other Lots, wherever the bidder has provided Actual values along
with Permissible values in the Test Chart, Actual values have been
considered by the Technical Evaluation Committee for evaluation, which
signifies the capability of the bidder to manufacture and supply machine of
the required technical specifications if falling within the acceptability range.
Hence, there has been no arbitrariness or inconsistency in the technical
evaluation of bids. The evaluation has been done in a fair and transparent
manner with due diligence.‖ (emphasis supplied)
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ROHELLA
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36. Mr. Mahajan further submits that so far as reliance placed by the
petitioner on Clause 27.1 is concerned, which permits the respondents to
seek clarification of bids, the same is discretionary, and not obligatory. He
submits that the respondents may, or may not choose to call for clarification
from the bidders. He submits that the deviation, in the present case, is
material, and if the petitioner is permitted to now clarify the same, it would
tantamount to unfairly affecting the competitive position of other bidders.
This would fall foul of Clause 29.2(b) of the ITB.
37. Mr. Mahajan has also filed his written synopsis. It is submitted by the
respondents that clarification is called only on some minor and immaterial
aspect of the bid. However, the petitioner‟s bid was technically non-
responsive since the petitioner did not provide documentary evidence in
respect of its claim that it would meet the technical specifications with
regard to the run out test. It is argued that no clarification was sought by the
respondents from any of the bidders and, therefore, the petitioner is not
discriminated against. The respondents also state that the petitioner cannot
seek to compare the bid evaluation process in respect of other packages or
other lots "As each situation has to be considered on its merits and
circumstances, and as per the assessment of the Diverse Evaluation
Committee, which is also in line with various Supreme Court decisions."
38. The respondents further submit that "there was no document in the
bid of petitioner, which confirms petitioner's capability to meet the technical
requirement of clause 6.3, except one test chart, which clearly indicates the
permissible values, in relation to clause 6.3 being used by the petitioner, for
testing the machines manufactured by them. The permissible values being
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used by petitioner, for manufacturing and testing the machines
manufactured by them, are way beyond those required by the respondent, in
its technical specifications. The petitioner had left the measured values as
blank in their bid, out of their own choice, leaving no option with the
Respondent to consider permissible values as the capability of the bidder for
the purpose of evaluation in respect of clause 6.3. Hence, under such
circumstances nothing wrong has been committed, in using such document
as submitted by petitioner in their bid, for evaluation of bid, by the technical
evaluation committee of Respondent. The committee has applied the same
principle uniformly to all the competing bidders without any discrimination
or favour, including the foreign bidders, namely M/s. Phillips, in Lot 4 and 5
where they were price -wise lowest‖.
39. The respondents further state that "the permissible values used by
petitioner for testing their machines has been taken as petitioner's
capability of manufacturing and there is nothing wrong in doing so, in
absence of complying measured values or any other appropriate document
in the petitioner's or any other competing bidder's bid, wherever
applicable".
40. The respondents further state that the present status of the bids invited
in respect of Lots 4,5 and 6 is that the notification of awards was published
on 09.06.2020 on the CPT Portal. The bid validities have expired, and no
further extension of bid validity was sought from any of the bidders for these
Lots. On conclusion of bidding process, the bid security/ bank guarantee
have also been returned to the respective bidders, including the petitioner.
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ROHELLA
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41. Though Mr. Mahajan did not refer to any decision when he advanced
his submissions, along with the written synopsis, he has placed on record a
few decisions.
42. The first decision relied upon by the respondents is Montecarlo
Limited v. National Thermal Power Corporation Limited, (2016) 15 SCC
272. Reliance has been placed on paragraph 26 of this decision, which reads
as follows:
―26. We respectfully concur with the aforesaid statement of
law. We have reasons to do so. In the present scenario, tenders
are floated and offers are invited for highly complex technical
subjects. It requires understanding and appreciation of the
nature of work and the purpose it is going to serve. It is
common knowledge in the competitive commercial field that
technical bids pursuant to the notice inviting tenders are
scrutinised by the technical experts and sometimes third-party
assistance from those unconnected with the owner's
organisation is taken. This ensures objectivity. Bidder's
expertise and technical capability and capacity must be
assessed by the experts. In the matters of financial assessment,
consultants are appointed. It is because to check and ascertain
that technical ability and the financial feasibility have
sanguinity and are workable and realistic. There is a multi-
prong complex approach; highly technical in nature. The
tenders where public largesse is put to auction stand on a
different compartment. Tender with which we are concerned, is
not comparable to any scheme for allotment. This arena which
we have referred requires technical expertise. Parameters
applied are different. Its aim is to achieve high degree of
perfection in execution and adherence to the time schedule. But,
that does not mean, these tenders will escape scrutiny of
judicial review. Exercise of power of judicial review would be
called for if the approach is arbitrary or mala fide or
procedure adopted is meant to favour one. The decision-
making process should clearly show that the said maladies are
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kept at bay. But where a decision is taken that is manifestly in
consonance with the language of the tender document or
subserves the purpose for which the tender is floated, the
court should follow the principle of restraint. Technical
evaluation or comparison by the court would be
impermissible. The principle that is applied to scan and
understand an ordinary instrument relatable to contract in
other spheres has to be treated differently than interpreting
and appreciating tender documents relating to technical works
and projects requiring special skills. The owner should be
allowed to carry out the purpose and there has to be allowance
of free play in the joints.‖ (emphasis supplied)
43. Reliance is also placed on Central Coalfields Ltd. and Anr. v. SLL-
SML (Joint Venture Consortium) and Ors., (2016) 8 SCC 622, wherein the
Court observed in paragraph 48 as follows:
―48. Therefore, whether a term of NIT is essential or not is a
decision taken by the employer which should be respected.
Even if the term is essential, the employer has the inherent
authority to deviate from it provided the deviation is made
applicable to all bidders and potential bidders as held
in Ramana Dayaram Shetty [Ramana Dayaram
Shetty v. International Airport Authority of India, (1979) 3 SCC
489] . However, if the term is held by the employer to be
ancillary or subsidiary, even that decision should be respected.
The lawfulness of that decision can be questioned on very
limited grounds, as mentioned in the various decisions
discussed above, but the soundness of the decision cannot be
questioned, otherwise this Court would be taking over the
function of the tender issuing authority, which it
cannot.‖(emphasis supplied)
44. Reliance is also placed by Mr. Mahajan on Afcons Infrastructure
Ltd. v. Nagpur Metro Rail Corporation Limited and Anr. (2016) 16 SCC
818. Particular reliance has been placed on paragraphs 11-13 of this
decision, which reads as under:
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ROHELLA
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― 11. Recently, in Central Coalfields Ltd. v. SLL-SML
(Joint Venture Consortium) [Central Coalfields Ltd. v. SLL-
SML (Joint Venture Consortium), (2016) 8 SCC 622 : (2016) 4
SCC (Civ) 106 : (2016) 8 Scale 99] it was held by this Court,
relying on a host of decisions that the decision-making process
of the employer or owner of the project in accepting or
rejecting the bid of a tenderer should not be interfered with.
Interference is permissible only if the decision-making process
is mala fide or is intended to favour someone. Similarly, the
decision should not be interfered with unless the decision is so
arbitrary or irrational that the Court could say that the decision
is one which no responsible authority acting reasonably and in
accordance with law could have reached. In other words, the
decision-making process or the decision should be perverse
and not merely faulty or incorrect or erroneous. No such
extreme case was made out by GYT-TPL JV in the High Court
or before us.
12. In Dwarkadas Marfatia and Sons v. Port of
Bombay [Dwarkadas Marfatia and Sons v. Port of Bombay,
(1989) 3 SCC 293] it was held that the constitutional courts
are concerned with the decision-making process. Tata
Cellular v. Union of India [Tata Cellular v. Union of India,
(1994) 6 SCC 651] went a step further and held that a decision
if challenged (the decision having been arrived at through a
valid process), the constitutional courts can interfere if the
decision is perverse. However, the constitutional courts are
expected to exercise restraint in interfering with the
administrative decision and ought not to substitute its view for
that of the administrative authority. This was confirmed
in Jagdish Mandal v. State of Orissa [Jagdish Mandal v. State
of Orissa, (2007) 14 SCC 517] as mentioned in Central
Coalfields [Central Coalfields Ltd. v. SLL-SML (Joint Venture
Consortium), (2016) 8 SCC 622 : (2016) 4 SCC (Civ) 106 :
(2016) 8 Scale 99] .
13. In other words, a mere disagreement with the
decision-making process or the decision of the administrative
authority is no reason for a constitutional court to interfere.
The threshold of mala fides, intention to favour someone or
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ROHELLA
Signing Date:24.12.2020 16:10
arbitrariness, irrationality or perversity must be met before the
constitutional court interferes with the decision-making
process or the decision.‖ (emphasis supplied)
45. He also places reliance on Rajasthan State Industrial Development
and Investment Corporation v. Subhash Sindhi Cooperative Housing
Society Jai, (2013) 5 SCC 427, wherein the Court observed in paragraph 19
as follows:
―19. ...The doctrine of discrimination based upon the
existence of an enforceable right, and Article 14 would hence
apply, only when invidious discrimination is meted out to
equals, similarly circumstanced without any rational basis, or
to relationship that would warrant such discrimination‖
(Emphasis supplied)
46. Lastly, he places reliance on Rajasthan High Court, Jodhpur v.
Babu Lal Arora, (2004) 9 SCC 71. The court observed in paragraph 6 of
this decision as follows:
―6. The employees who are in service are governed by the
conditions of employment and their promotions also take place
accordingly and not on any general principle of justice and fair
play. Discrimination, if any, will arise only amongst equals
and not between those who are in different cadres. As was set
out earlier, the respondent had obtained three promotions as
per the orders issued by the Registrar -- firstly, as UDC on 12-
11-1973, secondly, as Court Fee Examiner/Stamp Reporter on
7-4-1984 and lastly, as a Bench Reader on 28-10-1989. Thus in
the course of his 27 years' service, he had already obtained
three promotions and, therefore, the circular was not attracted
to his case at all. It is, therefore, that the High Court wanted to
rely upon the doctrine of justice and fair play.'
(emphasis supplied)
Rejoinder Submissions of the Petitioner
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ROHELLA
Signing Date:24.12.2020 16:10
47. In his rejoinder, learned counsel for the petitioner has argued that the
terms and conditions of Package 41 were identical in respect of all the Lots.
For the purpose of evaluation of the technical bids, one Lot could not be
treated differently from the other. He submits that there is clear
discrimination made out against the petitioner since the bid of DeckelMaho
in respect of Lot 1 was held to be technically responsive despite
DeckelMaho not furnishing any documents in respect of their bid. Learned
counsel points out that there is absolutely no answer to this clear
discrimination pointed out by the petitioner. Moreover, the non-submission
of documents is not even cited as the reason for declining the petitioner‟s
bids as technically non-responsive.
48. Learned counsel has again emphasized that, admittedly, the Bid
Evaluation Committee has considered the permissible value contained in the
Format of the Inspection Report provided by the petitioner, as the technical
specification offered by the petitioner - for which there was no basis,
particularly when the petitioner had expressly offered the technical
specifications desired by the respondents. There is no explanation for their
whimsical assumption that the technical specifications mentioned in the
Format (which are the specifications laid down by ISI) are also the offered
specifications despite the "measured" specification in the Format being
blank. That is in the teeth of Clause 16.3 of the ITB as amended. Learned
counsel has specifically pointed out the averment made in paragraph 18.1 of
the writ petition with regard to the discrimination meted out to it vis-à-vis
M/s. Philips and M/s.DeckelMaho, and the response of the respondents to
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ROHELLA
Signing Date:24.12.2020 16:10
the said averment in paragraph 18.1 of the counter affidavit, which has been
extracted hereinabove.
Discussion
49. We have heard the submissions of learned counsels, and carefully
perused the documents placed on record in the light of the decisions cited by
the respondents. We are not concerned, in these proceedings, with the issue
whether the petitioner meets - or does not meet, the technical specifications
of the tender in question. The technical evaluation of the bids of all the
bidders falls in the exclusive domain of the Technical Evaluation Committee
(TEC) of the respondents. In these proceedings, we are only considering
whether in the process adopted by the respondent‟s TEC, they have acted
unfairly, arbitrarily, or with discrimination towards the petitioner.
50. As already observed in Montecarlo Limited (supra), the Supreme
Court has held that judicial review would be called for if the approach is
arbitrary, or mala fide, or the procedure adopted is meant to favour someone.
The decision-making process should be such that maladies are kept at bay.
But where a decision is taken that is manifestly in consonance with the
language of the tender document, or subserves the purpose for which the
tender is floated, the court should follow the principle of restraint. Technical
evaluation or comparison by the court would be impermissible. The
principle that is applied to scan and understand an ordinary instrument
relatable to contract in other spheres, is different from the principle applied
to interpretation and appreciation of tender documents relating to technical
works and projects requiring special skills. The owner should be allowed to
carry out the purpose and there has to be allowance of free play in the joints.
Signature Not Verified
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By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
51. In Afcons Infrastructure Ltd.(supra), the Supreme Court observed
that interference is permissible only if the decision-making process is mala
fide or is intended to favour someone. Similarly, the decision should not be
interfered with unless the decision is so arbitrary or irrational that the Court
could say that the decision is one which no responsible authority acting
reasonably and in accordance with law could have reached. In other words,
the decision-making process or the decision should be perverse and not
merely faulty or incorrect or erroneous. It is also well settled that the
Constitutional Courts are concerned with the decision-making process, and
not with the decision itself. (See Dwarkadas Marfatia (supra)). It was also
held in Afcons Infrastructure Ltd.(supra) that a mere disagreement with the
decision-making process, or the decision of the administrative authority, is
no reason for a constitutional court to interfere. The threshold of mala fides,
intention to favour someone, or arbitrariness, irrationality or perversity must
be met before the constitutional court interferes with the decision-making
process or the decision.
52. While submitting its bids in respect of Lots 4,5 and 6 in the Technical
Sheet for the three Lots aforesaid, the petitioner had clearly stated the
specifications of the CNC Machines offered by it. For instance, the
Technical Specifications of the machines required under the Lot 5 stipulated
"Run out on test bar: 0.005mm or less [Test Bar Length 300mm] Spindle
Run out 0.003mm or less run out at Nose or better." The bid submitted by
the petitioner in respect of Lot 5 were in respect of the CNC Machines
having specifications "Run out on test bar : 0.005 mm or less [Test Bar
Length 300 mm] Spindle Run Out: 0.003 mm or less run out at nose or
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ROHELLA
Signing Date:24.12.2020 16:10
better.‖ Thus, the technical specifications stipulated by the respondents, and
those offered by the petitioner were the same. Same is the position with
regard to Lots 4 and 6. The respondents do not dispute this position.
53. It is evident from Clause 16.3 of the ITB, as amended, that the same
obliged the bidder to submit item by item Technical Compliance Statement
in the Technical Specifications contained in Annexure A to Section VII of
the bid document. It is in compliance of the said obligation that the
petitioner submitted its bids for the three Lots. In so far as it is relevant, we
have extracted in paragraph 14 above - serial No.6.3 of the Technical Sheets
for Lot 5. Similar is the position of the other two Lots. They do not bring
out any deviation from the Technical Specifications desired under the
tenders by the respondents, and those offered by the petitioner. Pertinently,
the amended Clause 16.3 of the ITB also stipulated that "deviations
mentioned elsewhere in the bid will not be considered", meaning thereby,
that the bidders would be bound by the Technical Specifications provided in
the Technical Sheets and, even if, there are any deviations contained
elsewhere in the bid documents, the same would be ignored.
54. At this stage, we consider it appropriate to examine the brief reasons
for rejection given by the respondents of the petitioner‟s three bids for Lots
4,5 and 6, which are fundamentally the same. These reasons are contained
in the respondent‟s communication dated 19.06.2020, and have been
extracted hereinabove in paragraph 7. For the sake of convenience, we set
out the said brief reasons for rejection once again herein below.
Lot Brief reason for rejection
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ROHELLA
Signing Date:24.12.2020 16:10
No.
4 Technically Non-responsive:
b) Clause No. 6.3: Bidder has mentioned Run out
on test bar: 0.010mm or less [Test Bar Length
300mm] Runout at Nose: 0.003mm or better in
the compliance statement. Tender Specified
runout on test bar at 300mm is 0.010mm and
at nose is 0.003mm. Whereas according to
the bidder's submitted test chart the runout
on test bar at 300mm is 0.020mm and at nose
is 0.010mm.
In view of above technical non-compliance with
supporting evidence, the bid is technically not complied.
5 Technically Non-responsive:
b) Clause No. 6.3: Bidder has mentioned Run out
on test bar: 0.005mm or less [Test Bar Length
300mm] Spindle Run out 0.003mm or less run
out at nose or better in compliance statement.
As per bidder's submitted test chart runout
on test bar at 300mm is 0.020mm and runout
at nose is 0.010mm against tender specified
spindle runout at 300mm is 0.005mm or less
and at nose is 0.003mm or less.
In view of above technical non-compliance with
supporting evidence, the bid is technically not complied.
6 Technically Non-responsive:
b) Clause 6.3: Bidder has mentioned Run out on
test bar: 0.010mm or less [Test Bar Length
300mm] Runout at Nose: 0.003mm or better
in compliance statement. As per bidder's
submitted test chart runout on test bar at
300mm is 0.020mm and runout at nose is
0.010mm against tender specified spindle
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ROHELLA
Signing Date:24.12.2020 16:10
runout at 300mm is 0.010mm or less and at
nose is 0.003mm or better.
In view of above technical non-compliance with
supporting evidence, the bid is technically not complied.
(emphasis supplied)
55. A perusal of the counter affidavit shows that, admittedly, the
petitioner has not submitted technical specifications as attributed to it by the
respondents. Rather, in the Technical Sheets, the petitioner has strictly
complied with the technical specifications as desired in the tender for the
three Lots. Admittedly, the respondents have "assumed" that the petitioner
has offered machines with technical specifications at variance with those
called for under the tender. This assumption, admittedly, stems from the
Format of the Inspection Sheet that the petitioner submitted with its tenders
for the three Lots in question. We have set out the first page of one of the
Inspection Sheets in paragraph 12 hereinabove. The same shows that the
column relating to the "Measured Tolerances in mm" is blank. The
justification offered by the respondents for their aforesaid deduction is that
since the column of "Measured Tolerances" was blank, they have
"assumed" that the petitioner has quoted the specifications as contained
under the column "Permissible".
56. We fail to understand as to how the respondent could have acted on
an assumption. The tender in question is undoubtedly of a highly technical
nature. More the complexity of the technicality, the less would there be any
scope for "assumptions". Moreover, the assumption drawn by the
respondents is also contrary to the terms and conditions of the tender and is,
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ROHELLA
Signing Date:24.12.2020 16:10
even otherwise, not borne out from the petitioner‟s bids for the three Lots.
Firstly, as noticed hereinabove, Clause 16.3 of the ITB clearly stipulated that
the bidder must submit item by item Technical Compliance Statement to the
Technical Specifications as given in Annexure A to Section VII of the bid
document. This was done by the petitioner. This is evident from the
Technical Sheets, as aforesaid. The matter should have ended there, and the
respondents should have gone only by the Technical Specifications set out in
the Technical Sheets submitted by the petitioner. However, even if one
were to look at the Format of the Inspection Sheets submitted by the
petitioner, it clearly shows that the column relating to "Measured Tolerances
in mm" were blank. The previous column contained the "permissible
tolerances".
57. We fail to understand how it could be assumed that the "Permissible
Tolerances" are the ones offered by the petitioner. Assuming that such an
assumption could be drawn, that would lead to a contradiction in the
Inspection Sheets when compared to the Technical Sheets. In that
eventuality, the technical specifications as stipulated in the Technical Sheets
should have been accepted and acted upon and, not the other way round.
The action of the respondents in drawing an assumption with regard to the
petitioner‟s offered technical specifications, in our view, is completely
mindless, arbitrary, and whimsical. The same is not supported by any term
of the Contract. On the contrary, the term of the contract clearly stipulates
that the technical specifications contained in the Technical Sheets would
prevail.
Signature Not Verified
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By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
58. Therefore, it is clear to us that the reasons for declaring that the
petitioner‟s bids for the three Lots in question are technically non-responsive
stem out of a complete arbitrary, and whimsical approach on the part of the
respondents. The said approach is also contrary to the terms of the tender
and particularly Clause 16.3, as aforesaid. In our view, this by itself is a
reason good enough to set aside the technical evaluation undertaken by the
respondents, not only in respect of the petitioner‟s bids for the three Lots,
but in respect of the technical evaluation of all the bids of all the bidders in
respect of these Lots, since the same approach has been adopted by the
respondents in respect of all the bidders. The fact that all the bidders have
been similarly treated - and same assumption has been made in respect of
their bids as well, is neither here, nor there. Multiple wrongs do not make
the action of the Respondents‟ right. The respondents cannot claim that all
the bidders have been treated equally whimsically and, therefore, there is no
discrimination.
59. The respondents, however, have also justified the rejection in their
counter affidavit by placing reliance on Clause 16.2 of the ITB. The
respondents state that the petitioner failed to comply with the requirements
of Clause 16.2 and to furnish documentary evidence to show that the
machines offered by it conform to the technical specifications and standards
specified in Schedule VII - Schedule of Requirements. Firstly, we may
notice that this is not the ground taken for rejection of the technical bid by
the respondents in their communication dated 19.06.2020. The rejection
cannot be now supported on grounds not earlier taken. (See Mohinder
Singh Gill & Anr. V. CEC & Others, (1978) 1 SCC 405) Secondly, the
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ROHELLA
Signing Date:24.12.2020 16:10
issue that arises is whether the respondents uniformly construed Clause 16.2
as mandatory, and whether non-compliance of Clause 16.2 has resulted in
rejection of the technical bids uniformly in respect of bids invited under the
same Package, namely Package 41, which are governed by the same set of
instructions to bidders. Pertinently, the technical evaluation of the bids in
respect of all the Lots of Package 41 was undertaken simultaneously, by the
same TEC.
60. The petitioner has pointed out the case of two bidders, namely M/s.
Philips and M/s.DeckelMaho, who were bidders in respect of Lot 1 for
similar CNC Machines. The petitioner has submitted that the said bidders
too had not provided the actual inspection reports. However, while making
their bids, they had quoted the technical specifications as stipulated in the
tender. Similarly, another bidder viz. M/s. ACE Manufacturing Systems
(AMS) had submitted its bids in respect of Package 20 giving exactly the
same tolerance limits in their Geometrical Test Chart against similar clause
for spindle run out. Even AMS had provided only the Format of the
Geometric Test Chart which reflected the "permissible tolerances (as per
ISO)" and the column relating to "actual tolerances" was blank. In
paragraph 17 hereinabove, we have extracted the geometrical test chart
provided by AMS along with their bid.
61. The respondents, while examining the technical bids of these bidders
in respect of Lot 1of the present Package exercised their power of calling for
clarification, as contained in Clause 27 of the ITB, and permitted the said
Bidders to provide documentation in support of their technical bids. The bid
of AMS in respect of Package 20 was held to be technically responsive by
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ROHELLA
Signing Date:24.12.2020 16:10
the same respondents, despite the Geometric Test Chart leaving the
"Measured" column blank. No such assumption was made in their case, as
made to the petitioner‟s detriment. Thus, mere non submission of
documents in respect of technical bids, at the initial stage, was not construed
as "technical non-compliance", and was not held to be fatal to the bid.
62. We have extracted hereinabove, the averment of the petitioner
contained in paragraph 18.1 of the writ petition and the response of the
respondents in the corresponding paragraph of the counter affidavit. So far
as the case of M/s. Philips is concerned, the respondents have stated that
they had provided other documentation to support their technical bid.
However, in respect of M/s.DeckelMaho, there is absolutely no denial on the
part of the respondents of the averments made by the petitioner, and it
clearly emerges that, had the respondents sought clarification from the
petitioner as had been sought in the case of M/s.DeckelMaho for examining
their bid for Lot 1, the petitioner could have provided the clarification and
documentation to support their technical bids. Pertinently, in its rejoinder,
the petitioner has placed on record the documents which show that it has
even earlier supplied CNC Machines with technical specifications stipulated
for Lots 4,5 and 6. The response of the respondents - to reliance placed on
Clause 27, is that they are not obliged to invoke Clause 27 of the ITB in
respect of all the lots. They also claim that machines required under Lots
4,5 and 6 were for purposes of production, whereas the machines required
under Lot 1 were for training purposes and, therefore, different level of
scrutiny was undertaken.
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
63. The respondents were required to place before us the Original Record
pertaining to evaluation of the bids of the bidders for the Package in
question. The respondents have, placed before us, the entire record and we
have carefully perused the same. It appears that the respondents received a
total of 54 bids from 15 bidders in respect of the complete Package 41
which, as aforesaid, consisted of 12 Lots. The initial meeting of the TEC in
respect of Package 41 was held between 11-13 September, 2019 at New
Delhi. The Lot wise technical evaluation of the bids was undertaken, and
the summary of the said process recorded in the Minutes is as follows:
―Minutes of the Meeting of Technical Evaluation Committee
(TEC): ICB 41 (11th -13th Sept, 2019, New Delhi)
1. Detailed technical evaluation of the bids was conducted
by the committee and summary of the technical evaluation is
summarized below (Contd.)
Lot Machine Bidder Name of the Acceptance/
No. Description No. Bidder Comments
1 CNC Milling 03/15 M/s. Bharat Technically
5 Axis- Fritz Werner Non-
Gr1(Medium Limited Responsive
Bed Size)
04/15 M/s Deckel Additional
Maho clarifications
Pfronten sought from
GmbH the bidder
[Ref.
Enclosed
Annexure -A]
12/15 M/s. Jyoti CNC Technically
Automation Non-
Ltd. Responsive
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By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
09/15 M/s. Lakshmi Technically
Machine Works Non-
Ltd. Responsive
15/15 M/s. Philips Additional
Corporation clarifications
sought from
the bidder
[Ref.
Enclosed
Annexure -A]
2 CNC Milling 03/15 M/s. Bharat Technically
5 Axis- Fritz Werner Non-
Gr2(Medium Limited Responsive
Bed Size)
04/15 M/s Deckel Additional
Maho clarifications
Pfronten sought from
GmbH the bidder
[Ref.
Enclosed
Annexure -A]
12/15 M/s. Jyoti CNC Technically
Automation Non-
Ltd. Responsive
09/15 M/s. Lakshmi Technically
Machine Works Non-
Ltd. Responsive
3 CNC Milling 03/15 M/s. Bharat Technically
5 Axis ( Fritz Werner Non-
LargeBed Limited Responsive
Size)
04/15 M/s Deckel Technically
Maho Pfronten Non-
GmbH Responsive
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
12/15 M/s. Jyoti CNC Technically
Automation Non-
Ltd. Responsive
15/15 M/s. Philips Additional
Corporation clarifications
sought from
the bidder
[Ref.
Enclosed
Annexure -A]
4 CNC Milling 02/15 M/s ACE Technically
3 Axis (Small Manufacturing Non-
Bed Size) Systems Responsive
Limited
03/15 M/s Bharat Technically
Fritz Werner Non-
Limited Responsive
08/15 M/s HMT Technically
Machine Tools Non-
Ltd Responsive
12/15 M/s Jyoti CNC Technically
Automation Non-
Ltd. Responsive
09/15 M/s Lakshmi Technically
Machine Works Non-
Ltd Responsive
10/15 M/s Macpower Technically
CNC Machines Non-
Limited Responsive
11/15 M/s Makino Technically
Asia Pte Ltd Non-
Responsive
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
15/15 M/s Philips Additional
Corporation clarifications
sought from
the bidder
[Ref.
Enclosed
Annexure -A]
5 CNC Milling 02/15 M/s ACE Technically
3 Axis Manufacturing Non-
(Medium Bed Systems Responsive
Size) Limited
03/15 M/s Bharat Technically
Fritz Werner Non-
Limited Responsive
08/15 M/s HMT Technically
Machine Tools Non-
Ltd Responsive
12/15 M/s Jyoti CNC Technically
Automation Non-
Ltd. Responsive
09/15 M/s Lakshmi Technically
Machine Works Non-
Ltd Responsive
10/15 M/s Macpower Technically
CNC Machines Non-
Limited Responsive
11/15 M/s Makino Technically
Asia Pte Ltd Non-
Responsive
15/15 M/s Philips Technically
Corporation Non-
Responsive
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
6 CNC Milling 02/15 M/s ACE Technically
3 Axis (Large Manufacturing Non-
Bed Size) Systems Responsive
Limited
03/15 M/s Bharat Technically
Fritz Werner Non-
Limited Responsive
12/15 M/s Jyoti CNC Technically
Automation Non-
Ltd. Responsive
09/15 M/s Lakshmi Technically
Machine Works Non-
Ltd Responsive
10/15 M/s Macpower Technically
CNC Machines Non-
Limited Responsive
11/15 M/s Makino Technically
Asia Pte Ltd Non-
Responsive
15/15 M/s Philips Additional
Corporation clarifications
sought from
the bidder
[Ref.
Enclosed
Annexure -A]
7 EDM Die 06/15 M/s GF Additional
Sinking Machining clarifications
(Large Bed Solutions Pte sought from
Size) Ltd the bidder
[Ref.
Enclosed
Annexure -A]
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
11/15 M/s Makino Technically
Asia Pte Ltd Non-
Responsive
14/15 M/s ONA Technically
Electroerosion Non-
S.A. Responsive
8 EDM Die 05/15 M/s Technically
Sinking Electronica Non-
(Large Bed India Limited Responsive
Size)
06/15 M/s GF Additional
Machining clarifications
Solutions Pte sought from
Ltd the bidder
[Ref.
Enclosed
Annexure -A]
14/15 M/s ONA Technically
Electroerosion Non-
S.A. Responsive
9 EDM Wire 05/15 M/s Technically
Cut (Medium Electronica Non-
Bed Size) India Limited Responsive
06/15 M/s GF Additional
Machining clarifications
Solutions Pte sought from
Ltd the bidder
[Ref.
Enclosed
Annexure -A]
11/15 M/s Makino Technically
Asia Pte Ltd Non-
Responsive
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
15/15 M/s Philips Technically
Corporation Non-
Responsive
10 EDM Wire 06/15 M/s GF Additional
Cut (Large Machining clarifications
Bed Size) Solutions Pte sought from
Ltd the bidder
[Ref.
Enclosed
Annexure -A]
14/15 M/s ONA Technically
Electroerosion Non-
S.A. Responsive
11 Coordinate 01/15 M/s Accurate Technically
Measurement Gauging and Non-
Machine Instruments Responsive
(Medium Bed Pvt. Ltd
Size)
07/15 M/s Hexagon Additional
Metrology clarifications
India Pvt Ltd sought from
the bidder
[Ref.
Enclosed
Annexure -A]
13/15 M/s Mitutoyo Additional
South Asia Pvt clarifications
Ltd sought from
the bidder
[Ref.
Enclosed
Annexure -A]
12 Coordinate 01/15 M/s Accurate Technically
Measurement Gauging and Non-
Machine Instruments Responsive
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
(Long Bed Pvt. Ltd
Size)
07/15 M/s Hexagon Additional
Metrology clarifications
India Pvt Ltd sought from
the bidder
[Ref.
Enclosed
Annexure -A]
13/15 M/s Mitutoyo Additional
South Asia Pvt clarifications
Ltd sought from
the bidder
[Ref.
Enclosed
Annexure -A]
2. Additional clarifications sought from the bidders are
summarized in the enclosed Annexure - A. Post receipt of
clarifications from the bidders, a team of committee members
comprising of Dr. V.K. Bhatnagar, TCM Expert, Mr. Sibasis
Maity and Mr. Niranjan Kulkarni would review the
confirmations/ clarifications received from the bidders and
finalize the next steps.‖ (emphasis supplied)
64. Annexure - A of the Minutes contained the additional clarifications
sought from the bidders and it was resolved that post receipt of clarifications
from the bidders, a team of Committee comprising of 3 Members would
review the conformation/ clarification received from the bidders for
finalization of the further steps. Annexure - A, as aforesaid, to the said
Minutes of the TEC is also pertinent and, therefore, we reproduce the same
herein below:
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
― Annexure - A
Package 41 Summary: Clarifications/ Confirmation Sought
from the Bidder
Lot Bidder Clause Description Clarification/
No No Confirmation
1 Philips Corp 3.5.1 7 T Slots Bidder to
confirm if the
design of table
with 7 slots
instead of 8(as
per the tender
specification)
is functionally
compatible
1 Philips Corp 3.7.10 Automatic Bidder to
tool confirm,
changing whether the
and through function
spindle air ―Spindle air
blow blow while tool
cleaning change‖ is a
while tool standard
change feature of the
offered
machine
1 DeckelMaho 3.6.1 Direct scale Bidder to
feedback on confirm
rotary and availability of
swivel axis direct scale
is desirable. feedback on
Linear rotary, swivel
glass scales axis and linear
glass scale in
the offered
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
machine
1 DeckelMaho 3.9.3 Coolant Bidder to
Chiller for confirm
Internal whether
Coolant Coolant
Supply ICS temperature
External control; Is
Coolant through chiller
mist air unit or
(MQL) with through some
Integrated alternative
clock method.
generator
1 Philips Corp 3.17.3 Optical Bidder to
Data provide
Acquisiton detailed
Signals for description of
Collection the
of abbreviation
operating ―BDE‖ and
Data for provide
Process description of
Monitoring the term ―BDE
in signal‖
Production.
2 DeckelMaho 4.11.7 Spindle Bidder to
Run out provide
(Max): Geometric test
0.003 mm chart
or better at
Spindle
nose
2 DeckelMaho 4.11.8 Run out on Bidder to
test bar at: provide
0.01 mm or Geometric test
better for
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
300 mm chart
(max) on
test bar
3 Philips 7.6 Note: Bidder to
Machine provide details
Accuracies about the
accuracy
1.All standards
accuracies followed.
should be
in
accordance
to VDI/
DGQ 3441
or ISO 230-
2/ JIS
Standard B
2. Working
accuracies
shall be
verified as
per ISO
1079-1
standard
work piece
machining
test.
Geometrica
l alignment
check as
per
supplier's
test chart
confirming
to DIN
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
8615/ ISO
230- Part I
3 Philips 11.1 Please point Bidder to
wise and provide
specifically descriptive/
describe, suitable
how information for
workmanshi this clause.
p standards
are
maintained
in your
plant for
inventory
control,
casting,
machining,
fabrication,
QA and
testing lab
and
painting
facilities
3 Philips 11.2 Please Bidder to
confirm provide
that, how descriptive/
much suitable
percentage information for
of work will this clause.
be off-
loaded to
vendors, for
the
manufacturi
ng of the
offered
product,
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
also give
details
about the
name
addresses of
your
registered
vendors
with details
about
quality
system and
its
accreditatio
n
3 Philips 11.3 What are Bidder to
the plan provide
adopted for information in
equipment support of this
calibration clause.
and the
normal
frequency
adopted for
shop floor
and in-
house QA
and quality
control labs
equipment?
3 Philips 11.4 Please Bidder to
specifically provide
send a information in
typical flow support of the
in-line with said clause.
your quality
assurance
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
plan with
proposed
hold points
for the
offered
product.
3 Philips 11.5 Please Bidder to
specifically provide
and inline information in
describe support of the
about the said clause.
corrective
action plan
proposed
for the
offered
product.
3 Philips 11.7 Give brief Bidder to
about the provide
in-house information in
knowledge support of the
updation said clause.
plan for
working
staff in your
organizatio
n. Also
describe
how
frequently
your shop
floor and
quality
control staff
is being
trained to
achieve the
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
same.
3 Philips 11.8 Describe Bidder to
about shop provide
floor safety information in
culture in support of the
your said clause.
organizatio
n and how
effectively it
is
maintained.
4 Makino 3.2 800 Kgs for Bidder to
high speed clarify Table
rates, loading
capacity of the
1000 kg offered version
with low along with the
feed rates applicable feed
rates.)
4 Philips 6.3 Run out on Bidder to
test bar: provide Test
0.010 mm chart to
or less [Test confirm the
Bar Length specified run
300 mm] out, for the
offered
Run out at machine.
Nose :
0.003 mm
or better
6 Philips 9.5 Quality Bidder to
Test and provide Test &
Accuracy accuracy chart
Test Chart for the offered
Records machine.
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
6 Philips 11.1 Please point Bidder to
wise and provide
specifically information in
describe, support of the
how said clause.
workmanshi
p standards
are
maintained
in your
plant for
inventory
control,
casting,
machining,
fabrication,
QA and
testing lab
and
painting
facilities.
6 Philips 4.4 Through Bidder to
spindle confirm
coolant availability of
system; 40 40 bar (min)
bar (min) coolant
with coolant pressure for
filtration the offered
unit machine.
6 Philips 6.3 Run out on Bidder to
test bar: provide Test
0.010 mm Chart to
or less [Test confirm the
Bar Length specified run
300 mm] out, for the
offered
Run out at
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
Nose : machine.
0.003 mm
or better
7 GF & ONA 8.1 Solid state Bidder to
voltage provide the
stabilizer make & model
(suitable for of Solid state
the offered voltage
machine) Stabilizer.
7 GF & ONA 8.2 Suitable Bidder to
Chiller provide the
make & model
of chiller unit
7 GF & ONA 8.14 2 in 1 AVR Bidder to
and provide the
Isolation make & model
Transforme of 2 in 1 AVR
r and Isolation
Transformer
7 GF & ONA 8.15 Electrical Bidder to
Touch provide the
probe: model/ part no.
Renishaw of Electrical
or Touch probe.
equilvalent
8 GF & ONA 8.1 Solid state Bidder to
voltage provide the
stabilizer make & model
(suitable for of Solid State
the offered voltage
machine) stabilizer.
8 GF & ONA 8.2 Suitable Bidder to
Chiller provide the
make & model
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
of chiller unit
8 GF & ONA 8.14 2 in 1 AVR Bidder to
and provide the
isolation make & model
Transforme of 2 in 1 AVR
r and Isolation
Transformer
8 GF & ONA 8.15 Electrical Bidder to
Touch provide the
probe: model/ part no.
Renishaw of Electrical
or Touch Probe.
equilvalent
9 GF 5.3 2 in 1 AVR To confirm the
+ make & model
Transforme
r
9 GF 5.6 Suitable To confirm the
Water make & model
Chiller
10 GF 3 Diameter of Bidder to
Electrode confirm the
Wire: 0.22 availability of
TO 0.33 mm 0.33 mm wire.
11 Hexagon 3.6 NOTE: The Bidder to
specified confirm about
accuracies the 1 deg C/
shall be day
checked permissible
with only variation of
one probe temperature
head. The for guaranteed
specified specified
accuracies accuracies
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
shall be conformed in
guaranteed bidder‖ specs
in the instead of 2
following deg C/ day
temperature mentioned in
gradients: catalogue.
Ambient
Temp: 20
+_ deg C,
with a
permissible
variation of
1 deg C / hr
/ m / day.
11 Hexagon 8.3.4 Measureme Bidder to
nt provide the
Interfaces version no. of
for IGES Measurement
and STEP Interfaces for
for their IGES and
latest STEP.
versions.
11 Hexagon 10.1 OEM or its Bidder has
group submitted the
company valid
shall have documents with
NABL the bid but not
certified mentioned in
laboratory the submitted
in operation bidder's
for last 3 specification.
years, Bidder to
developed compliance to
in relevance this clause.
to offered
product.
The OEM
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
can have
their own
calibration
masters, but
these
calibration
masters
shall have
certification
/
traceability
for NABL
accreditatio
n. Supplier/
OEM
should
submit
copies of
NABL
certification
along with
the bids.
11 Mitutoyo 3.6 NOTE: The Bidder to
specified confirm about
accuracies the 1 deg C/
shall be day
checked permissible
with only variation of
one probe temperature
head. The for guaranteed
specified specified
accuracies accuracies
shall be conformed in
guaranteed bidder‖ specs
in the instead of 2
following deg C/ day
temperature mentioned in
gradients;
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
Ambient catalogue.
Temp: 20+-
deg C, with
a
permissible
variation of
1 deg C / hr
/ m / day.
11 Mitutoyo 7.6 NVIDIA Bidder to
Quadra provide
K2000 2 GB Graphic
Graphic memory.
Memory
12 Hexagon 3.6 NOTE: The Bidder to
specified clarify about
accuracies the 1 deg C/
shall be day
checked permissible
with only variation of
one probe temperature
head. The for guaranteed
specified specified
accuracies accuracies
shall be conformed in
guaranteed bidder‖ specs
in the instead of 2
following deg C/ day
temperature mentioned in
gradients; catalogue.
Ambient
Temp: 20+-
deg C, with
a
permissible
variation of
1 deg C / hr
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
/ m / day.
12 Hexagon 10.1 OEM or its Bidder has
group submitted the
company valid
shall have documents with
NABL the bid but not
certified mentioned in
laboratory the submitted
in operation bidder's
for last 3 specification.
years, Bidder to
developed compliance to
in relevance this clause.
to offered
product.
The OEM
can have
their own
calibration
masters, but
these
calibration
masters
shall have
certification
/
traceability
for NABL
accreditatio
n. Supplier/
OEM
should
submit
copies of
NABL
certification
along with
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
the bids.
12 Hexagon 4.5 Drive Speed As per the
600 mm / enclosed
sec (min) catalogue with
(for all the bid, the
axes) bidder has two
options for
drive
arrangement
1. ―Standard
Dynamics‖
with drive
speed of 510
mm/s [Ref.
Catalogue
Page # 54]
which is not
complied.
2. ―High
Dynamics‖
with drive
speed of 860
mm/s [Ref.
Catalogue
Page # 54] is
being
complied.
Bidder to
confirm the
supply of
option 2 ―High
Dynamics‖
12 Mitutoyo 3.6 NOTE: The Bidder to
specified clarify about
accuracies the 1 deg C/
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
shall be day
checked permissible
with only variation of
one probe temperature
head. The for guaranteed
specified specified
accuracies accuracies
shall be conformed in
guaranteed bidder‖ specs
in the instead of 2
following deg C/ day
temperature mentioned in
gradients; catalogue.
Ambient
Temp: 20+-
deg C, with
a
permissible
variation of
1 deg C / hr
/ mtr / day.
(emphasis supplied)
65. The aforesaid Minutes of the TEC clearly show that TEC sought
additional clarifications from various bidders. The bidders from whom
clarifications were sought, lot-wise, were:
(i) Lot 1 - M/s. Philips Corporation and M/s. DeckelMaho
(ii) Lot 2 - M/s. DeckelMaho Pfronten GmbH
(iii) Lot 3 - M/s. Philips Corporation
(iv) Lot 4 - M/s. Philips Corporation
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
(v) Lot 5 - None
(vi) Lot 6 - M/s. Philips Corporation
(vii) Lot 7 - M/s. GF Machining Solutions Pte Ltd.
(viii) Lot 8 - M/s. GF Machining Solutions Pte Ltd.
(ix) Lot 9 - M/s. GF Machining Solutions Pte Ltd.
(x) Lot 10 - M/s. GF Machining Solutions Pte Ltd.
(xi) Lot 11 - M/s. Hexagon Metrology India Pvt Ltd and M/s. Mitutoyo
South Asia Pvt. Ltd.
(xii) Lot 12 - - M/s. Hexagon Metrology India Pvt Ltd and M/s. Mitutoyo
South Asia Pvt. Ltd.
66. The aforesaid analysis shows that the TEC was not averse to calling
for additional clarifications from the bidders. It also shows that additional
clarification was sought in majority of the cases from bidders who were
foreign entities.
67. Now, we may turn to the nature of clarifications sought from the
aforesaid bidders by the respondents which have been set out in Annexure -
A quoted herein above. Pertinently, it would be seen that the respondents
sought clarification on a variety of technical issues, including in respect of
the spindle run out on test bar. In respect of Lot 2, the clarification sought
by the TEC was with regard to "Spindle Run out (Max): 0.003 mm or better
at Spindle nose " with reference to Clause 4.11.7 of the ITB. The bidder
was required "to provide Geometric Test Chart". With reference to Clause
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
4.11.8, DeckelMaho was again asked to provide clarification in respect of
―Run out on test bar at: 0.01 mm or better for 300 mm (max) on test bar",
and the bidder was required "to provide Geometrical Test Chart". Similarly,
Philips Corporation was required to provide, in relation to Clause 7.6
"details about the accuracy standards followed". It is extremely pertinent
to note that in respect of Lot 4, for which the petitioner is also a bidder,
Philips Corporation was required "to provide (with reference to Clause 6.3
of the ITB) Test Chart to confirm the specified run out, for the offered
machine". No such clarification was sought from the petitioner.
68. As noticed herein above, the Technical Specification set out in the
tender document stipulated "run out on test bar at: 0.01 mm or better for
300 mm (max) on test bar". Similarly, for Lot 6, Philips Corporation was
granted an opportunity to provide clarification on several technical aspects
"by providing Test and Accuracy Chart for the offered machines", and "to
provide Test Chart to confirm the specified run out, for the offered
machine". It is thus evident that bidders like Philips Corporation were given
the opportunity to provide clarifications on multiple aspects, including on
the aspect on which the petitioner has been ousted, but the same opportunity
was denied to the petitioner in respect of Lot 6. Pertinently, on the same
nature of clarification sought from other bidders, opportunity was denied to
the petitioner.
69. The record produced also contains the communications issued by the
Office of the Development Commissioner (Micro, Small and Medium
Enterprises), Ministry of Micro, Small and Medium Enterprises,
Government of India to the aforesaid bidders. We are setting out herein
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
below one such communication issued in respect of Lot 1 and 2 to
DeckelMaho dated 20.09.2019. The said communication reads as follows:
―To,
M/s. DECKEL MAHO Pfronten GmbH
Deckel Maho Street 1, 87459,
Pfronten, Germany
Email: [email protected]
Kind Attn: Mr. Neeraj Khera (Vice President - NKAM)
Subject: ICB No. 21/TCSP/GOODS/P41/2018/TR/TC (Package
- 41) opened on 18th July 2019 for Supply of 12 Lots of
Machines and Equipment required for Production at New &
Existing Technology Centres.
Ref: Your Bid submitted for the above ICB [CPPP Tender ID:
2019_DCMSM_450328_1]
Dear Sir/Madam,
Following Technical clarifications may please be furnished
with reference to your above referred bid.
Lot Reference Description Clarification
No. Clause of required
Technical
specifications
/ Section of
the Bid
Technical Clarifications
1 3.6.1 Direct scale Bidder to confirm
feedback on availability of direct
rotary and swivel scale feedback on
axis is desirable. rotary, swivel axis
Linear glass and linear glass
scales scale in the offered
machine.
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
3.9.3 Coolant Chiller Bidder to confirm
for Internal whether Coolant
Coolant Supply temperature control
ICS External is through chiller
Coolant mist air unit or through
(MQL) with some alternative
Integrated clock method.
generator
2 4.11.7 Spindle Run out Bidder to provide
(Max):0.003 mm Geometric test
or better at chart
Spindle nose
4.11.8 Run out on test Bidder to provide
bar at :0.01 mm Geometric test
or better for 300 chart
mm (max) test
bar
Please ensure that your reply with the required documents
should reach the undersigned within 10 days of receipt of this
letter.
This is issued without any commitment and prejudice to the
rights of the Purchaser as per the bid condition.
Yours sincerely,
Virinder Sharma,
Director (TCSP)
E mail: [email protected]‖
(emphasis supplied)
70. The said bidder provided detailed clarification on 27.09.2019, the
forwarding communication dated 27.09.2019 reads as follows:
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
―Date: 27th September 2019
To
Office of the Development Commissioner
(Micro, Small and Medium Enterprises)
Ministry of Micro, Small and Medium Enterprises
Government of India
Nirman Bhawan, 7th Floor, Maulana Azad Road.
New Delhi - 110 108
Kind Attn. :Mr. Virinder Sharma Director (TCSP)
Subject :ICB No. 21/TCSP/GOODS/P41/2018/TR/TC
(Package - 41) for supply of 12 LOTS OF MACHINES AND
EQUIPMENT FOR PRODUCTION AT NEW & EXISTING
TECHNOLOGY CENTERS
Reference :Your letter No. 21/TCSP/GOODS/P41/2018
(Package - 41) dtd. 20.09.2019
Dear Sir,
With reference to subject tender enquiry and referred letter
received on 23rd September 2019 through e-mail and please to
submit our confirmation / reply as below:
Lot Reference Description Clarification Our
No. Clause of required Confirmation
Technical
specifications
/ Section of
the Bid
Technical Clarifications
1 3.6.1 Direct scale Bidder to We Confirm
feedback on confirm that offered
rotary and availability machine is
swivel axis of direct equipped
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
is desirable. scale with direct
Linear glass feedback on feedback
scales rotary, system for
swivel axis rotary and
and linear swivel axis.
glass scale Linear axis
in the are equipped
offered with Linear
machine. glass scale
3.3 Coolant Bidder to We confirm
Chiller for confirm that coolant
Internal whether temperature
Coolant Coolant control is
Supply ICS temperature through
External control is chiller unit
Coolant through
mist air chiller unit
(MQL) with or through
Integrated some
clock alternative
generator method.
2 4.11.7 Spindle Bidder to We Comply
Run out provide and
(Max):0.003 Geometric Geometric
mm or test chart Test Chart is
better at attached.
Spindle
nose
4.11.8 Run out on Bidder to We Comply
test bar at provide and
:0.01 mm or Geometric Geometric
better for test chart Test Chart is
300 mm attached.
(max) test
bar
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
We hope your will find above in line with you requirement
FOR DECKEL MACHO PFRONTEN GmbH‖
(emphasis supplied)
71. The TEC held its second meeting between 16-17 December, 2019.
The TEC recorded "The guidelines followed for ―Technical Evaluation of
Bids and seeking additional clarifications"". The said guidelines read as
follows:
―Minutes of the Meeting of Technical Evaluation Committee
(TEC): ICB 41 (16th - 17th Dec, 2019, New Delhi)
1. The guidelines followed for ―Technical Evaluation of
Bids and seeking Additional Clarifications‖ are as follows:
a. The basic principles followed in the past for seeking
Technical clarifications from bidders should continue.
b. Wherever there is significant inconsistency between the
compliance statement and the offered machine catalogue/ test
chart on inherent and vital machine parameters such as
accuracy and repeatability performance of the machine,
clarification may not be sought from the bidder and the bidder
may be considered technically non-responsive.
c. Whatever has been specifically called for by stipulation
in the Technical Specifications as a part of bidding document
and not complied by the bidder, in such cases, no clarifications
shall generally be called. [e.g. any response meeting the
Technical Specifications should be supported by documents like
catalogue, test charts etc. as specified in the bidding document.
The bidders are to be considered as non-responsive for non-
submission of catalogue/ test chart. Any extraneous document
including catalogue etc., on website of the bidder shall not be
referred for technical evaluation.
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
d. If a bid is non-responsive on certain clauses of Technical
Specifications and certain other clauses need clarifications, in
all such cases there is no need to seek clarifications from the
bidders, and evaluation shall be based on available information
in the bid.
e. Any adverse response of bidder in clause-wise technical
compliance statement to Technical Specifications should prevail
where contradictory specification exists elsewhere in the bid.
f. In case a bidder submits multiple or multi-model
catalogues for various models and does not mention model
number in the bid, then model to be considered for evaluation
shall be anyone which is closest to the Technical Specification
in major dimensions only. This should be clearly brought out in
Technical Evaluation Report.
g. In addition, it was suggested to observe following general
guidelines, before recommending additional clarifications to be
sought from the bidders
i. Clarification sought should not make the bidder as
responsive with additional information being sought through
clarifications which could be considered as adverse against
other competing bidders.
ii. Due diligence should be done to examine the whole
bid to look for missing information.
iii. Clarification should not be sought if the
information specifically sought in the bidding document has not
been furnished by the bidder.
iv. Only in case of genuine doubt and bid containing
contradictory information, clarification may be sought which
should in general be for minor, non-material issues.
v. Any of the clarification sought should not be in
contravention to the bidding document e.g. if the bidder is to be
summarily rejected for non-fulfillment of certain conditions, no
clarification should be sought in such cases.‖
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
72. After taking into consideration the responses received from the
bidders who were given the opportunity to provide clarification, in respect
of Lot 1, M/s. Deckel Maho Pfronten GmbH and M/s. Philips Corporation
were held to be technically responsive. In respect of Lot 2, M/s. Deckel
Maho Pfronten GmbH was held to be technically responsive. In respect of
Lot 3, M/s. Philips Corporation was held to be technically responsive. In
respect of Lot 7 M/s. GF Machining Solutions Pte Ltd and M/s. ONA
Electroerosion S.A. were held to be technically responsive. In respect of Lot
8, M/s. GF Machining Solutions Pte Ltd and M/s. ONA Electroerosion S.A
were held to be technically responsive. Similarly, for Lot 9 M/s. GF
Machining Solutions Pte Ltd was held to be technically responsive. In
respect of Lot 10, M/s. GF Machining Solutions Pte Ltd and M/s. ONA
Electroerosion S.A were held to be technically responsive.
73. Curiously, the TEC, in its meeting held between 11-13 September,
2019 had ruled M/s. ONA Electroerosion S.A to be technically non-
responsive, and no clarification was sought from them. This would be
evident from a perusal of Annexure - A. However, without seeking any
further clarification, they were declared technically responsive in its meeting
held on 16-17 December, 2019. In respect of Lot 11, M/s. Hexagon
Metrology India Pvt. Ltd. and M/s. Mitutoyo South Asia Pvt. Ltd. were
declared to be technically responsive. In respect of Lot 12, M/s. Hexagon
Metrology India Pvt. and M/s. Mitutoyo South Asia Pvt. Ltd. were held to
be technically responsive.
74. What we find is that, firstly, the guidelines were evolved and set down
only in the 2nd Meeting of the TEC, after the TEC in the first meeting had
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
already decided to hold some of the bidders technically non-responsive, and
to call for clarification from several others. It appears, the TEC sought to
tailor make the guidelines in its meeting held on 16-17 December, 2019 to
fit into its decisions already taken and put into action. Secondly, without
exception, all the bidders who were found technically responsive in its
meeting held on 16-17 December, 2019 had been provided an opportunity to
provide clarification, including on the very aspect of which the petitioner
was denied the said opportunity. This, in our view, is a clear demonstration
of glaring discrimination against the petitioner when we look at the grounds
on which the petitioner has been held to be technically non-compliant by the
respondent. It is a different matter that M/s. Deckel Maho Pfronten GmbH
was not awarded the contract for Lot 1 since the Bid Evaluation Committee
found M/s. Philips Corporation to be the lowest bidder and M/s.
DeckelMaho was not the lowest.
75. The terms and conditions in respect of all the lots under Package 41
are identical. Admittedly, there is no distinction and the respondents have
not reserved the right under the terms and conditions of the tender to treat
the bidders differently in the matter of examination of their bids, for
different Lots, or in respect of machines required for training and those
required for production. The respondents did not clearly state that relaxed
standards would be adopted for machines required for training purposes as
compared to machines required for manufacturing purposes.
76. In our view, the respondents are bound to maintain uniformity in the
manner in which they examine the technical bids - whether relating to one
Lot, or the other, since the terms and conditions for all the Lots are uniform
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:24.12.2020 16:10
and common. If adherence to Clause 16.2 of the ITB by the bidders at the
initial stage of submission of the bids was not considered sacrosanct by the
TEC in respect of Lot 1, and resort was had to Clause 27 of the ITB - which
permits the respondents to call for clarification, there is no reason why the
same TEC of the respondents should not have resorted to the same
mechanism while dealing with the bids in respect of Lots 4,5 and 6 at the
same point of time.
77. The submission of respondents is that the petitioner‟s technical bids
could not be considered substantially compliant, and acceptance of any
further clarifications in respect of technical specifications from them would
tantamount to a "material deviation, reservation, or omission". Clause 29.2
which is relevant to examine this submission has been extracted in
paragraph 6 hereinabove. The principle laid down to determine whether a
material deviation, reservation, or omission has taken place is that, if
accepted, the same would effect, in a substantial way, the scope, quality or
performance of goods and related services specified in the contract; or, limit
in any substantial way, inconsistent with the Bidding Documents, the
Purchaser‟s rights or the Bidder‟s obligations under the Contract; or if
rectified, would unfairly affect the competitive position of other bidders
presenting substantially responsive bids.
78. The interpretation advanced by the respondents to Clause 29.2 of the
ITB, in our view, is incorrect and cannot be said to be even a plausible view.
Even if the petitioner was called upon to clarify the position with regard to
the technical specifications offered by it, all that the petitioner could have
done is to re-affirm its commitment to supply the machines with the
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specifications as desired by the respondents in their tender for the three Lots
and to reaffirm its commitment as offered in Clause 6.3 of its Technical
Sheet. Thus, there would be no question of the scope, quality or
performance of the goods and related services specified in the contract being
affected in any way, much less, substantially. The said clarification would
not limit in any substantial way, inconsistent with the bidding documents,
purchasers rights, or the bidder‟s obligation of the contract. It would also
not affect the competitive position of other bidders, firstly, for the reason
that the respondents found no other substantially responsive bids.
Moreover, the evaluation whether the clarification tantamounts to a material
deviation, reservation, or omission could have been made only after calling
of; receipt, and; examination of the clarification and not on an assumption.
Consequently, the said opportunity ought to have been provided to all other
bidders as well, who were sought to be declared as technically non-
responsive on the basis of the assumption, as aforesaid, which itself is
arbitrary and whimsical. All that the petitioner could have done to undo the
self-created confusion in the mind of the Respondents with regard to the
specifications offered by the petitioner and to provide documents to
establish its capability to supply the machines as per the technical
specifications quoted by it. The petitioner has been discriminated against by
denying to it the opportunity to offer its clarification - even if one was
called for.
79. Admittedly, the respondents invoked Clause 27 of the ITB while
examining the bids of the bidders under several Lots. That is how M/s
DeckelMahoPfronten was treated as technically responsive, in respect of Lot
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1. The purpose of Clause 27 of the ITB (set out in paragraph 19 above) is
"to assist in the examination, evaluation, comparison of the bids, and
qualification of the bidders". Therefore, whenever a reasonable doubt arises
upon examination of the technical bid of a bidder with regard to, inter alia,
the qualification of the bidder, the respondents, at its discretion, may call for
clarification.
80. Firstly, in our view, there was no deviation, discrepancy, or confusion
about the bids submitted by the petitioner in view of petitioner having
expressly offered the machines as per the technical qualification laid down
by the respondents for the three Lots. In any event, even if the respondents
could remotely be said to have entertained a genuine doubt about the
petitioner‟s technical qualification, the respondents were obliged to call for
clarification, for the reason, that it had adopted the same procedure in
respect of M/s DeckelMahoPfronten and several others while examining its
technical bid in respect of Lot 1 and other Lots. Even the cause for the so
called doubt, if any, was the same, as in the present case. In our view, the
respondents were bound to maintain uniformity in the matter of examination
of the technical bids and it is not acceptable that the petitioner‟s fate should
be dependent upon the whims of the Technical Evaluation Committee. The
discretion vested in the respondents to call for Clause 27 is not an unguided
discretion. The said discretion cannot be exercised arbitrarily, or
whimsically. There is a purpose for incorporation of Clause 27 in the ITB,
namely, to conduct the evaluation process of the bids with all seriousness
and sincerity, and not to deal with the bids recklessly and casually. After all,
invitation of bids and award of contracts by the Government is a serious
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matter, and the endeavour of the respondents, who have invited the tender,
should be to successfully conclude the tender rather than to deal with the
bids in a casual way and declare all the bidders as technically disqualified -
as was done in respect of Lots 4,5 and 6.
81. The entire process of inviting bids in respect of a public tender is an
expensive and time consuming process. The whole process, even in the
present case, started way back in July, 2019 and the respondents sought to
reject, inter alia, the petitioner‟s bids for Lots 4,5 and 6 in June, 2020.
Substantial expenditure would have been incurred not only by the
Government in the process of inviting the bids, but also by all the bidders in
meeting the terms and conditions of the bid, preparing their bids, and
submitting their bids. They had to shell out substantial monies towards
earnest money deposit. The respondents cannot treat their bids lightly.
They have a right to fair examination of their bids. If the respondents are
allowed to conduct themselves in arbitrary and whimsical manner in the
matter of examination of the bids, the public bidding process would lose is
credibility, which would be detrimental to public interest. The respondents
are accountable to the bidders, and merely because they have a right to reject
any bid, and the discretion whether, or not, to call for clarification, it does
not mean that the said powers can be exercised in an arbitrary and whimsical
manner. The exercise of any discretion by a public authority has to be
guided by the object and purpose for such powers being vested in the
authority in the first place. Thus, in our view, even if the respondents
genuinely entertained any doubt with regard to the technical bids submitted
by the petitioner and other bidders, the respondents could not have lightly
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and casually rejected all the bids as technically disqualified, and that too on
the basis of an unfounded and whimsical assumption as noted hereinabove,
and they should have given a chance to the bidders to clarify the doubts, if
any. Pertinently, the TEC called for clarification in numerous instances, but
denied this opportunity to the petitioner unfairly.
82. Our aforesaid view is fortified by Clause 30 of the ITB which
provides that a bid which is substantially responsive may not be rejected on
account of non-conformity, or omission, which is non-material. We have
extracted Clause 30.1 and 30.2 in paragraph 22 hereinabove which states
that in respect of a bid which is substantially responsive the Purchaser may
waive any nonconformity in the Bid. It also provides that in respect of a
substantially responsive bid, the purchaser, i.e. the respondent may request
the bidder to submit the necessary information or documentation within a
reasonable period of time to rectify non-material, non-conformities or
omissions in the bid related to documentation requirements.
83. The respondents have sought to place heavy reliance on Clause 16.2
which talks about the obligation of the bidder to submit documentation in
support of their technical bid. When Clause 16.2 is read in juxtaposition
with Clause 30.2, it emerges that in respect of substantially responsive bids,
non-submission of non-material documents can be made good even later.
Pertinently, this is how the respondents have viewed and interpreted the
aforesaid Clause while dealing with the bids received in respect of Lot 1 of
the same Package. That approach of the respondent accords with the letter
and spirit of the ITB. There is no reason for the respondents, not to follow
suit while examining the technical bids in respect of Lots 4, 5 and 6.
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84. In paragraph 18.1 of their counter affidavit (which is extracted in
paragraph 37 hereinabove), the respondents have stated that Philips and
DeckelMaho were broadly meeting the requirements subject to immaterial
clarifications which were sought from both these bidders. The respondents
treated non-submission of documents in support of their technical
specifications offered to be "immaterial" and, therefore, sought technical
clarification from the bidders. They have admitted that DeckelMaho was
given the opportunity to clarify the position, and substantiate their claim for
accuracy requirements of quoted machines for Lot 1, in line with the values
mentioned in their respective technical compliance statement.
85. The Supreme Court in Montecarlo Limited (supra) held that exercise
of power of judicial review would be called for if the approach in the matter
of examination of the bids is arbitrary, or mala fide, or where the procedure
adopted is meant to favour one.
86. In the present case, though it cannot be said that the respondents have
adopted the procedure to eventually favour anyone, since all the bidders
were held to be technically non-responsive in respect of Lots 4,5 and 6, the
manner of examination of the bids is clearly arbitrary, discriminatory, and
whimsical, as we have already discussed hereinabove. The right of the
respondents to evaluate the bids with free play in the joints cannot be used
as a shield against arbitrary, discriminatory, and whimsical conduct, as held
in Central Coalfields Ltd. (supra). It is for the respondents to decide
whether a term of the NIT is essential or not. However, the TEC of the
respondents cannot adopt different yardstick when dealing with tenders
submitted under the same Package; with the same terms and conditions and;
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in respect of same or similar machines. It cannot be that the respondents
treat compliance of a term of the tender as mandatory in one case, and as
directory in another. Adoption of different yardsticks would certainly
expose the conduct of the respondents to the vice of arbitrariness.
87. We have no hesitation in concluding that the decision-making process
in the present case is not merely faulty, incorrect, or erroneous, but the same
is perverse. The perversity stems from the fact that the respondents have
proceeded on a completely unfounded assumption, which is not borne out
from the terms contained in their own ITB, and the assumption made by
them is also contrary to the ITB. It is also at variance with the conduct of
the respondents while dealing with the bids with respect of Lot 1.
88. In our view, the bidders of different Lots cannot be treated as
separate classes, for the reason that they are bidding under the same
umbrella contract with identical terms and conditions, and in respect of the
same or similar machines. The decisions relied upon by the respondents, in
our view, do not come in our way in exercising our jurisdiction to quash the
technical evaluation process undertaken by the respondents in respect of
Lots 4, 5 and 6 of Package 41.
89. So far as the submission of respondents that they have already closed
the bidding process in respect of the Lots in question, by even returning the
earnest money and the bid security/ bank guarantee is concerned, there is no
submission made to this effect in the counter affidavit. This position is only
disclosed in the written submission filed by the respondents.
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90. The petitioner had approached this Court by preferring the present
writ petition on or about 26.06.2020. The matter was listed before us, for
the first time on 06.07.2020. The respondents were represented through
their standing counsel. We directed the respondents not to proceed to award
the contract in relation to Lot 4, 5 and 6 of Package 41. No such statement
was made by the respondents, as is contained in the written submissions.
Obviously, all such developments have taken place during the pendency of
the writ petition before taking any such steps. The respondents have not
even bothered to inform the Court, much less take its permission, before
taking these steps. We are, therefore, of the view that the said developments
cannot come in the way of granting relief to the petitioner, if it is made out
in the facts of the case.
91. Having considered the entire situation, we are inclined to allow this
petition. We declare the action of the respondents to be whimsical, arbitrary
and highly discriminatory. We, accordingly, quash the Technical Evaluation
made by the respondents in respect of Lots 4,5 and 6 of Package 41. We
direct the respondents to provide an opportunity to all the bidders of Lots 4,5
and 6 of Package 41 to extend the validity of their respective bids and to re-
deposit/ re-furnish the bid security/ bank guarantees for a reasonable length
of time to enable the respondents to undertake fresh evaluation of the
technical bids in respect of these three Lots. Such of the bidders, who
accept the proposal to re-validate their bids as earlier offered, and to re-
furnish the bid security / bank guarantees, may be called for Technical
Evaluations after granting them the similar opportunity to provide their
clarifications.
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92. The Technical Evaluation Committee of the respondents shall
examine the technical bids of all such bidders in the light of the
clarifications offered and based on the said findings, the Bid Evaluation
Committee may proceed further in the matter to evaluate the bids of those
bidders who are found to be technically responsive after inviting their
clarifications.
93. The petition stands disposed of in the aforesaid terms leaving the
parties to bear their respective costs.
(VIPIN SANGHI)
JUDGE
(RAJNISH BHATNAGAR)
JUDGE
DECEMBER 24, 2020
N.Khanna
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ROHELLA
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