Delhi High Court
Khera Tourists Service vs Sports Authority Of India on 18 February, 2020
$~61
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 18th February 2020
+ W.P.(C) 1724/2020 and C.M. No.5997/2020 (interim relief)
KHERA TOURISTS SERVICE ..... Petitioner
Through: Mrs. Latika Chaudhary, Advocate.
versus
SPORTS AUTHORITY OF INDIA ..... Respondent
Through: Mr. N.K. Aggarwal, Advocate.
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
JUDGMENT
G.S.SISTANI, J. (ORAL)
This is a writ petition under Article 226 of the Constitution of India
seeking a writ of certiorari for quashing of the allegedly illegal procedure
adopted by the respondent while rejecting the technical bid of the petitioner,
without specifying any reason, which the petitioner contends is arbitrary and
against the principles of natural justice.
2. With the consent of the parties, the writ petition is set-down for final
hearing and disposal at the admission stage itself.
3. The respondent advertised an e-tender inviting bids for hiring of DLY
cars for the Sports Authority of India, Head Office Building, Jawaharlal
Nehru Stadium, New Delhi. The petitioner submitted its online bid on
09.12.2019.
4. Admittedly, all the documents sought to be relied upon by the
petitioner could not be uploaded. More particularly, the petitioner uploaded
only 6 Registration Certificates ('RCs') instead of 25 RCs which were
required as per the tender document.
5. After some hearing in the matter and perusal of the record produced
by the respondent, Mrs. Latika Chaudhary, learned counsel for the petitioner
is satisfied that since the bid submitted by the petitioner was incomplete,
there is no infirmity in the decision of the respondent in rejecting the
petitioner's bid.
6. She however submits that another bidder who had also submitted an
incomplete solvency certificate, since the certificate did not bear any date,
was given an opportunity by the respondent to rectify the error. She further
submits that since such an opportunity was not granted to the petitioner, the
respondent has acted in an arbitrary and fanciful manner ; and has been
biased towards the petitioner.
7. Learned counsel for the respondent submits that the respondent was
well within its rights to seek clarification on the bids. Reliance is placed
upon clause 7.3.5 of the Manual for Procurement of Bids 2017 issued by the
Ministry of Finance, Department of Expenditure. We reproduce clause 7.3.5
below:-
"7.3.5 Clarification of Bids/Shortfall Documents
During evaluation and comparison of bids, the purchaser may, at
his discretion, ask the bidder for clarifications on the bid. The
request for clarification shall be given in writing by
registered/speed post, asking the tenderer to respond by a
specified date, and also mentioning therein that, if the tenderer
does not comply or respond by the date, his tender will be liable to
be rejected. Depending on the outcome, such tenders are to be
ignored or considered further. No change in prices or substance
of the bid shall be sought, offered or permitted. No post-bid
clarification at the initiative of the bidder shall be entertained.
The shortfall information/documents should be sought only in case
of historical documents which pre-existed at the time of the tender
opening and which have not undergone change since then. These
should be called only on basis of the recommendations of the TC.
(Example: if the Permanent Account Number, registration with
sales tax/VAT has been asked to be submitted and the tenderer has
not provided them, these documents may be asked for with a
target date as above). So far as the submission of documents is
concerned with regard to qualification criteria, after submission
of the tender, only related shortfall documents should be asked for
and considered. For example, if the bidder has submitted a supply
order without its completion/performance certificate, the
certificate can be asked for and considered. However, no new
supply order should be asked for so as to qualify the bidder."
8. He further submits that in the petitioner's case, several relevant
documents were not uploaded, while in the other bidder's case referred to,
the only issue was that while the solvency certificate issued by a
nationalized bank had been uploaded, however the same was without a date;
and an opportunity was accordingly granted to rectify this error. Counsel for
the respondent submits that the two issues cannot be equated, as providing a
copy of the RC is an essential tender condition; and the petitioner admittedly
failed to provide copies of the required number of RCs, while the example
which has been given by the petitioner is of a case where only the date was
missing on a document issued by a third party, which was subsequently
permitted to be rectified.
9. We have heard counsel for the parties and have considered their
submissions.
10. In the foregoing backdrop, we find that there is no infirmity in the
decision-making process of the respondent, as admittedly vital documents
were not uploaded by the petitioner; and thus the petitioner's bid was
correctly rejected. We are also satisfied with the explanation rendered by
counsel for the respondent in allowing the other bidder to provide the date
on the solvency certificate which was issued by a nationalized bank and
which was uploaded alongwith other documents.
11. Accordingly, we find no grounds to interfere by way of this petition.
The writ petition and pending application is accordingly dismissed.
G.S.SISTANI, J.
ANUP JAIRAM BHAMBHANI, J.
FEBRUARY 18, 2020
Ne
