Delhi High Court
M/S Rakshak Securitas Pvt. Ltd. vs Union Of India And Anr. on 30 January, 2020
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Judgment : 30th January, 2020
+ W.P.(C) 9424/2019 & CM APPL. No. 38783/2019
M/S RAKSHAK SECURITAS PVT. LTD. ..... Petitioner
Through: Mr. Deepak Anand, Mr. Pramod Kr.
Rai, Ms. Hemlata Rawat &
Mr.Aayushmaan, Advs.
versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Ms. Maninder Acharya, ASG with
Ms. Shubhra Parashar, Adv.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
G.S. SISTANI, J. (ORAL)
With the consent of the parties, the writ petition is set-down for final
hearing and disposal.
2. A tender bearing No. IPO/DEL/FMS/2019 dated 26.02.2019 was
issued by the Ministry of Commerce & Industry through the Office of
Controller General of Patents, Designs & Trademarks for providing Facility
Management Services and Security Services at the Intellectual Property
Office, Sector-14, Dwarka, New Delhi (the 'RFT' for short). The submission
of the bids started on 26.02.2019 and closed on 20.03.2019. According to the
petitioner, due to technical glitches, the petitioner could not upload its price
W.P.(C) 9424/2019 Page 1 of 14
bid ; and as a result he informed the representatives of respondent No.2, who
provided a link on which correct details could be submitted.
3. It is strongly urged before us by the learned counsel for the petitioner
that subsequently the price bid of the petitioner was successfully uploaded ;
the bidding process was complete ; whereupon which the petitioner received
an acknowledgement from the eProcurement System of the Government of
India for the tender in question. On inquiry, the petitioner was informed that
although originally the tender was under ID No. 2019_DIPP_448823_1,
whereas the tender uploaded by the petitioner was under tender ID No.
2019_DIPP_448823_2, there was no discrepancy in this regard; and upon
uploading of the bid under tender ID No. 2019_DIPP_448823_2 the
petitioner received an e-mail/acknowledgement also.
4. Having received no further response in the matter the petitioner made
two representations dated 16.04.2019 and 22.05.2019, to which however also
no response was received. Subsequently however the petitioner received
communication dated 26.08.2019 from the respondents intimating that the
petitioner's contract will stand terminated w.e.f. 01.09.2019 and also calling
upon the petitioner to give charge to a new vendor on that date. In this
manner, the petitioner gathered that the tender in question had been awarded
to a third party and this resulted in filing of the present writ petition.
5. Learned counsel for the petitioner submits that the last date for
submission of the bid was 20.03.2019 ; and the petitioner's bid was
submitted on 19.03.2019. The submission of the bid was also accepted and
acknowledgement was received ; and that therefore there was no reason for
the respondent to declare the bid of the petitioner as 'non-responsive' or to
have rejected the petitioner's bid. He submits that the stand of the
W.P.(C) 9424/2019 Page 2 of 14
respondent, that the petitioner should have re-applied/re-bid based on
another corrigendum tender ID No. 2019_DIPP_448823_3 is unacceptable
since the petitioner was not informed that another corrigendum had been
uploaded on the e-portal, neither by e-mail nor by any other form of
communication ; and in the absence of any notice of another corrigendum
having been issued, the petitioner nor any other tenderer could have
imagined that after the last date, such a corrigendum had been issued ; nor
that in the absence of the petitioner re-applying, his bid would be rejected.
He submits that this act of the respondent is arbitrary, capricious and fanciful
and against all canons of justice. He submits that no such corrigendum was
issued or displayed ; nor was the petitioner subsequently informed.
6. Learned counsel further submits that the contention of the petitioner is
fully supported by the affidavit filed by National Informatics Centre (NIC),
wherein a categorical assertion has been made that contrary to the usual
procedure, no e-mail was sent on account of a technical glitch ; nor was any
subsequent corrigendum issued. Paras 2.1 and 2.2 of the NIC affidavit have
been relied upon, which read as under :
"2.1 For the tender bearing Tender ID
2019_DIPP_448823_1, Patent Office-Delhi has issued one
corrigendum and the corrigendum details are displayed
prominently on the Portal.
As an additional feature, whenever a corrigendum is issued
against a tender, normally eProcurement System
automatically triggers an email alert in safe and secure way
to all those bidders who have shown interest in that tender.
However, for this tender - Tender ID 2019_DIPP_448823_1,
it is observed that due to some system problem, mail has not
been initiated through the system.
W.P.(C) 9424/2019 Page 3 of 14
2.2 For the tenders bearing Tender IDs
2019_DIPP_448823_2 & 2019_DIPP_448823_3, Patent
Office-Delhi has not issued any corrigendum.
Hence, no corrigendum details are displayed on the portal as
well as no email alert has been initiated by system against
these tenders."
7. Learned counsel has placed reliance on the following judgments
Bharat Power Control Systems vs. Govt. of NCT of Delhi & Ors., W.P.(C)
10240/2015 decided on 02.02.2016, where it has been observed as under :
"24. Since the experience of Shri Bharat Bhushan Bali gained
by him as a partner of the erstwhile firm is liable to be taken
into account, the rejection solely on the ground that as per the
dissolution deed of the partnership, the business of the firm was
agreed to be continued as a proprietorship by Shri G.S.Bakshi
and all business including the goodwill were transferred to
respondent no. 4, is not sustainable and liable to be set aside.
"25. In view of the above, the rejection of the petitioner is held
to be illegal and is set aside. The impugned decision dated
16.10.2015 qualifying the petitioner from the bidding process is
quashed. The respondent nos. 1 to 3 are directed to re-consider
the bid of the petitioner by taking into account the experience
gained by the petitioner as a partner of the erstwhile firm and to
continue the tender process thereafter. The petition is allowed
in the above terms leaving the parties to bear their own costs."
Orion Security Solutions Pvt. Ltd. vs. Govt. of NCT of Delhi and
Ors. reported as 233 (2016) DLT 181 in which it has been held as follows :-
" 1. The petitioner, Orion Security Solutions Pvt. Ltd. through its
Managing Director in W.P(C) No. 4296/2016, has approached this
Court seeking quashing of a decision dated 23.03.2016 [recorded as
W.P.(C) 9424/2019 Page 4 of 14
minutes of the meeting held on 02.03.2016 passed by the Tender
Opening Committee of respondent No. 2, Directorate of Education,
GNCTD (Caretaking branch)], Government of NCT of Delhi, Old
Secretariat, Delhi whereby the financial bid of the petitioner was
rejected on the ground that the same was non responsive to the terms
of the tender document.
"2. In W.P(C) No. 6314/2016, the petitioner, by way of abundant
caution, has also challenged the order dated 25.04.2016 whereby the
e-tender (I.D No. 2015_DE_75441_1) of the petitioner regarding
providing of security services to Government schools, stadia and
offices under the Directorate of Education, Government of NCT of
Delhi has been rejected and the petitioner has been requested to take
back his EMD/FDR immediately.
xxxxx
"45. In Dutta Associates Pvt. Ltd. V Indo Merchantiles Pvt. Ltd. & Ors
MANU/SC/1017/1997 : (1997) 1 SCC 53, the SC has held that
whatever procedure the government agency proposes to follow in
accepting the tender, must be clearly stated in the tender notice. The
consideration of the tenders received and the procedure to be followed
in the matter of acceptance of the tender should be transparent, fair
and open.
"46. In UOI v Dinesh Engineering Corporation & Anr.,
MANU/SC/0575/2001 : (2001) 8 SCC 491, the SC has gone on to
clarify that the power of the Government Authority to reject any
tender without assigning proper reasons cannot be countenanced only
on the premise that the tender issuing authority has the powers to
decide what is in its best interest. The decision of the agency must be
based on valid considerations.
xxxxx
"48. We have no option but to quash the impugned order dated
23.03.2016 and 25.04.2016 whereby the e-tender of the petitioner has
been recommended to be rejected and has been now communicated to
the petitioner on the ground of low and unworkable rates."
W.P.(C) 9424/2019 Page 5 of 14
Offshore Infrastructure Limited vs. Indian Oil Corporation Limited
reported as 2018 (168) DRJ 513, where it has been held as under :
"1. The petitioner is aggrieved by the rejection of its bid submitted in
response to the Notice Inviting Tender (NIT) for combined station
works, including, civil, mechanical, electrical, telecom and
instrumentation works at Paradip, Vizag, Rajamundry and
Vijayawada stations and two 10000 KL capacity cone roof fire water
storage tank at Vizag station under the PHPL Project (hereafter
called "the work"). The petitioner's bid was rejected on the ground of
technical unfeasibility.
xxxxx
"31. It is well settled that while exercising judicial review, the court
should also be circumspect in contractual matters as quashing
decisions can result in unforeseen economic consequences. As a
result, the appropriate course would be not to set aside or quash the
tender proceeding, but only the decision to reject the petitioner's bid.
Therefore, IOL's decision to reject the petitioner's bid is hereby
quashed; consequently, the said bid shall be considered on its merits,
having regard to the tender terms and provisions of law. The writ
petition is allowed in these terms without order on costs."
Scania Commercial Vehicles India Private Limited vs. Government
of Karnataka and Ors. reported as 2017 (1) KarLJ357, where is has been
observed :
" 3. Accordingly, on the last date for submission of bids the petitioner
started the process of submitting the technical and financial bids at
4.30 p.m. On uploading, the system prompted for encryption of the
documents by using the digital signature and the petitioner encrypted
the documents by using the digital signature. At that stage, the system
prompted the petitioner 'sign and encryption'. As such the same was
complied after which the petitioner was directed to the main page to
W.P.(C) 9424/2019 Page 6 of 14
key-in certain date manually under the heading 'Item wise bid
financial offer'. The further process was also carried on as prompted
from the system and when the 'sign and encryption' was attempted
using the digital signature, a message 'unexpected error' was
displayed. Though the draft had been uploaded the process was not
completed due to the indication of such error. Hence the petitioner
contacted the customer care of respondent No. 4 for help but the
assistance provided was not of any help despite the petitioner
clarifying the position and indicating the error and seeking for a
solution to complete the process. The petitioner accordingly contacted
the respondent No. 4 on the next day by stating with regard to the
problem encountered and also submitted the hard copies by dropping
it in the box kept for the said purpose as it is also a requirement under
the RFP. A further request was also made on 27.08.2016 and again up
to 31.08.2016. However since the respondents No. 3 and 4 did not
accede to the request of the petitioner, the petitioner has approached
this Court.
xxxxx
"21. In that regard, what is to kept in view is that in the process
though the uploaded bid had not reached the Tender Inviting
Authority, i.e., the respondent No. 3, the bid with all the details is
available in the 'draft' stage in the e-portal of the respondent No. 4
which is the common platform. It is in that light the petitioner has
sought that a direction be issued to consider it as having been
submitted within time and evaluate the same. In the case on hand it is
an instance where the petitioner is not seeking to join the race mid
way without reaching the starting point. Instead the petitioner has
been at the starting point and has run the race but has not reached the
finishing line on time due to certain discrepancies for which the
reasons are many which cannot be investigated in a proceedings of
the present nature except to deduce from the records as being
probable. Though the discrepancies are blamed on each other, this
Court not having the expertise has no doubt accepted the contention of
W.P.(C) 9424/2019 Page 7 of 14
the respondent No. 3 and 4 as the probable version that there was no
glitch in the server or the e-portal. Yet in a matter of the present
nature there are other aspects which are to be kept in view and at the
same time it is to be ensured that the process of e-procurement is
adhered to and the sanctity of the same is not compromised.
xxxxx
"23. If such benefit is granted, in my opinion it will in fact be in public
interest. As noticed the tender floated is for procurement of 150 AC
premium buses and 350 non-AC buses involving the cost of Rs. 250
crores. The petitioner is a well known manufacturer of buses and if
they are allowed to remain in the field it will only increase the
competition though ultimately it will all depend on the technical as
well as financial evaluation and that too subject to the entire details
being available in the 'draft' that is already uploaded. On the other
hand if an opportunity is not granted only because of the delay of less
than 2 minutes and that too in the circumstance stated above, it will
leave only the respondents No. 5 and 6 in the field without much
competition. To allow a tender of such magnitude to the benefit of one
or two tenderers due to default rather on merit, it certainly is not in
public interest. While stating so, this Court is also conscious of the
fact that it should not cause prejudice to the bidders who are already
in the field. The petitioner should therefore have benefit of only the
details which is in the digital form as 'draft', in the e-portal of the
respondent No. 4, which only shall be enabled by the respondent No. 4
to be retrieved, viewed and noted by respondent No. 3 and no other
addition or subtraction can be permitted. Since the tender condition
requires the bidders to submit the physical documents of the uploaded
documents also, the documents submitted by the petitioner pursuant to
the interim order or the set which has already been dropped in the
box, if it matches with the uploaded documents available as 'draft'
alone shall be considered. That apart, keeping in view the nature of
procurement, the specifications of the buses manufactured and in that
background the commercial bid to be considered will also ensure that
W.P.(C) 9424/2019 Page 8 of 14
there is no prejudice to the others if permitted unlike the process for
certain other procurements.
"24. For all the aforestated reasons, the following;
ORDER
(i) The respondent No. 4 is directed to make provision for respondent
No. 3 to access the bid submitted by the petitioner as per the details in
Annexure-E and available as DRAFT in their procurement portal.
(ii) The respondent No. 3 on accessing the same shall consider it as
the bid submitted by the petitioner on e-tender mode, without
permitting any other additions or alterations and evaluate the same as
per the terms and conditions of the tender in comparison with the
other bids received.
(iii) The petition is disposed of in the above terms with no order as to
costs."
M/s. Arjun Pharmaceuticals vs. The Director of Animal Husbandry
and Ors. W.P.(C) 31904/2017 decided on 06.11.2017, where is has been
held as follows :
"1. The petitioner is aggrieved with the decision of the 1 st
respondent to exclude the petitioner from the tender invited as per
Ext.P1. The specific case put forward by the petitioner is that as per
Ext.P1 the petitioner had remitted the EMD of Rs.8,26,250/- on
14.8.2017, by transfer as per RTGS. But however the same was not
deposited into the account of the Government and was returned on
19.8.2017 by which time the period was over. Though the petitioner
had attempted to send the EMD on 19.8.2017 it was refused again;
at that point, for reason of the last date having expired. The
petitioner also relies on Ext.P16 judgment to contend that in a
similar circumstance this Court had directed the tenderer who was
excluded, on similar grounds, to be included. The reasoning was
that a technical problem arising at the receiving Bank cannot in
any event disqualify a tenderer. This was also on the finding that
the awarder having chosen a particular bank, any defect on the
part of the bank would be the responsibility of the awarder too. The
tenderer who acted in accordance with the instructions cannot be
prejudiced, held this Court.
xxxxx
"6. In such circumstances, this Court is of the opinion that the
matter is squarely covered by the judgment in Ext.P16. The
petitioner shall produce a demand draft for Rs.8,26,250/- before the
1 st respondent within a period of one week from today. The tenders
submitted by the petitioner and other persons shall be opened and
then the matter shall be decided in accordance with the notification
at Ext.P1. It is made clear that, if the petitioner does not produce
the amounts towards EMD by a demand draft on or before
15.11.2017 the first respondent would be entitled to open the
tenders received and finalize the proceedings."
8. Learned Additional Solicitor General, who appears for the
respondents, submits that the present petition is misconceived ; and that the
petitioner cannot take advantage of his own wrong and negligence. She
submits that firstly, the last date of the tender was extended from 20.03.2019
to 27.03.2019 ; and after the extension, another corrigendum was issued on
20.03.2019 at 6 pm. The petitioner however did not apply in terms of this
corrigendum although after the corrigendum a fresh bid was required to be
uploaded ; and therefore there was no bid received from the petitioner which
could be examined. Learned ASG further explains the true purport of the
affidavit filed on behalf of NIC. She submits that as far as issuance of e-mail
after the corrigendum is concerned, admittedly on account of a technical
glitch, such an e-mail was not issued. However, she submits that although
the deponent in the affidavit has said that no corrigendum was issued, it is
submitted that the NIC normally does not use the word 'corrigendum' but in
fact a corrigendum was issued and uploaded, which is evident from the fact
that seven bidders applied on the basis of such subsequent corrigendum and
if the corrigendum had not been issued or displayed on the website, there
was no way that the seven other bidders would have known and submitted
fresh bids. A copy of the corrigendum has also been placed on record. Strong
reliance is also placed on the tender condition which says that bidders are to
update themselves as regards any changes/modifications/corrigendum; and
the respondents are not liable to send individual information nor issue any
public notice in that behalf. We reproduce the relevant tender condition
below :
"The bids may be submitted latest by 5:00 PM on 20.03.2019.
Financial bids for only those bidders will be opened who are
declared qualified in technical evaluation. The date and time for
opening of financial bids shall be separately notified on NIC's e-
Procurement Portal (eprocure.gov.in). O/o CGPDTM may seek
any further clarification or documents as required.
All details regarding the subject RFT are available on websites:
www.ipindia.gov.in and www.eprocure.gov.in. Any
changes/modifications/corrigendum in connection with this RFT
will be intimated through one or more of these websites only.
Prospective bidders are therefore requested to visit above
mentioned websites regularly to keep themselves updated. O/o
CGPDTM shall not be liable to send any individual information or
issue a public notice."
9. She submits that the petitioner is a regular bidder ; is fully aware about
the tender procedures and processes ; and he is simply feigning ignorance on
grounds which do not exist.
10. Learned ASG also submits that on a plain reading, the judgments
sought to be relied upon do not apply to the facts of the present case and do
not help the petitioner's case.
11. We have heard learned counsel for the parties and have considered
their rival submissions.
12. Since some of the facts, though borne-out from the record, are
disputed by the petitioner, we wish to highlight the same. Firstly, according
to the petitioner, the last date for submission of the bid was 20.03.2019
which turns-out to be factually incorrect since the last date was extended to
27.03.2019. Secondly, according to the petitioner, no corrigendum was
issued at all, muchless was any intimation given to the petitioner either
through a phone call, e-mail, WhatsApp or by any other mode. This also
appears to be factually incorrect, since a corrigendum was uploaded on the
website ; a copy of which has been placed on record ; and consequent
thereto, fresh bids were made by seven other bidders who had uploaded their
bids earlier-on as well. The third issue which would have a bearing on this
case, is that as per the tender conditions, the petitioner was not entitled to be
given any individual information or notice with regard to any changes,
modifications or corrigendums, in connection with the RFT. The tender
condition which we have reproduced above makes it clear that all details
regarding the RFT were available on the website www.ipindia.gov.in and
www.eprocure.gov.in. ; and any changes, modifications, or corrigendums in
connection with this RFT were to be intimated through one or more of "these
websites only".
13. The result of the above submissions is that, firstly, a corrigendum was
issued after the last date was extended and not after the last date. Also, the
petitioner was required to check the website regularly to update itself ; and
had the petitioner done so, as required in the tender conditions, the petitioner
would have known that not only was the last date extended but also that
another corrigendum had been issued. Since the petitioner was a regular
bidder and was infact the successful bidder in the year 2016 for the very
same project, to whom extension was granted upto the end of 2018, the
petitioner cannot say that it was not familiar with such procedure. Since a
corrigendum was issued, the petitioner was liable and was required to bid
again, since the last corrigendum would override all previous corrigendums.
14. As far as the judgments relied upon by the petitioner are concerned,
the case of Bharat Power Control System (supra) was one where the
experience of one of the partners gained in an erstwhile firm, was not taken
into account and the bid was rejected. That decision would not be relevant or
applicable to the facts of this case. In the case Orion Security Solutions Pvt.
Ltd (supra), the court relied upon an earlier judgment to hold that, whatever
procedure the government agency proposes to follow in a tender, must be
clearly stated in the tender notice. There is no quarrel with this proposition.
The present is not a case where the corrigendum was not placed on the
website. Accordingly the said judgment would also not apply to the facts of
the present case. In the case of Offshore Infrastructure Limited (supra), the
bid of the petitioner was rejected on account of technical non-feasibility. The
paras relied upon by the petitioner have no bearing to the facts of the case.
The observations in the case of L & T Hydrocarbon Engineering Ltd. vs.
Oil and Natural Gas Corporation Ltd. and Ors. also relate to a case where,
on account of a technical glitch, the tenderer was prejudiced. In this case
however, we find that there was no technical glitch but only that the
petitioner did not visit the website after it uploaded its bid documents for
reasons best known to it, even when the tender condition required otherwise.
In fact the petitioner also did not notice that the last date for submission of
the tender had been extended from 20.03.2019 to 27.03.2019. The affidavit
of NIC is to be read in context; and read as a whole, paras 2.1 and 2.2 of the
affidavit confirm that while the tender ID remained the same, the last digit or
extension changed from '_1' to '_2' to '_3' which changes on the web-sites;
which itself is an acknowledgment that there were two corrigendums to the
original tender.
15. In the above view of the matter, we find no infirmity in the action of
the respondents ; nor any merit in this writ petition ; and the same is
accordingly dismissed.
16. Pending application also stands disposed of.
G.S. SISTANI, J.
ANUP JAIRAM BHAMBHANI, J.
JANUARY 30, 2020/uj
