M/S China Railway No.10 ... vs National Highways Authority Of ...
2020 Latest Caselaw 1788 Del

$~12&15.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                         Date of Decision : 08.05.2020
+      W.P.(C) 3076/2020

       M/S CHINA RAILWAY NO.10 ENGINEERING
       GROUP CO. LTD.                            ..... Petitioner
                      Through: Mr. Neeraj Kishan Kaul, Sr. Adv. with
                               Mr. Bhaskar Vali, Mr. Rajat Jain, Mr.
                               Chanan Parwani and Ms. Nimisha,
                               Advs.
                      versus

       NATIONAL HIGHWAYS AUTHORITY OF INDIA
       & ANR.                                  ..... Respondents

Through: Mr. Ankur Mittal, Adv. for NHAI Mr. Ripu Daman Bhardwaj, CGSC.

+ W.P.(C) 3079/2020 M/S CHINA RAILWAY NO.10 ENGINEERING GROUP CO. LTD. ..... Petitioner Through: Mr. Neeraj Kishan Kaul, Sr. Adv. with Mr. Bhaskar Vali, Mr. Rajat Jain, Mr. Chanan Parwani and Ms. Nimisha, Advs.

versus

NATIONAL HIGHWAYS AUTHORITY OF INDIA & ANR. ..... Respondents Through: Mr. Ankur Mittal, Adv. for NHAI Mr. Ripu Daman Bhardwaj, CGSC.

CORAM:

HON'BLE MR. JUSTICE VIPIN SANGHI HON'BLE MR. JUSTICE RAJNISH BHATNAGAR

VIPIN SANGHI, J (ORAL)

CM APPL. 10698/2020 in W.P.(C) 3076/2020 & CM APPL. 10704/2020 in WPC 3079/2020 The court fees be paid within two weeks. The applications stand disposed of.

W.P.(C) 3076/2020& CM APPL. 10697/2020 AND W.P.(C) 3079/2020 & CM APPL. 10703/2020

1. Since the parties to the present petitions and, the facts relevant for the decision of two writ petitions are the same, and the petitioner as well as the respondents have advanced the same set of submissions, we proceed to dispose of these two writ petitions by this common order. These two writ petitions have been preferred by the petitioner M/s. China Railway No.10 Engineering Group Co. Ltd. seeking similar reliefs, namely, to assail the two similar letters dated 20.03.2020 issued by the respondent/ National Highways Authority of India (NHAI) to the petitioner, declaring the petitioner's two technical bids in respect of two different bids submitted by the petitioner in response to two Requests for Proposal (RFPs) issued by the respondent for construction of portions of a highway, to be non-responsive. The particulars of the two RFPs find mention in the "Subject" of the two impugned communications.

2. The communication dated 20.03.2020, which forms the subject matter of W.P. (C) No.3076/2020 reads as follows:

3. Similarly, the impugned letter dated 20.03.2020 issued to the petitioner, which is assailed in W.P. (C) No.3079/2020 reads as follows:

4. During the hearing, the record of W.P. (C) No.3079/2020 has been referred to by learned counsel. We shall be referring to the same hereinafter.

The primary submission of Mr. Neeraj K. Kaul, learned senior advocate appearing for the petitioner is that the premise on which the technical bids of the petitioner have been found to be non responsive is incorrect. Mr. Kaul submits that the ground taken for holding the technical bid to be non responsive is that the experience certificate of the petitioner, which forms a part of the bid documents, is in Chinese language and is not clear, and that the said certificate is not signed by the petitioner. On that ground, the experience certificate furnished by the petitioner has not been accepted for evaluation purpose and, consequently, the bid has been held to be non responsive in terms of clause 2.2.2.2 (ii) of the RFP.

5. Mr. Kaul submits that the petitioner submitted the certificate issued by the statutory auditor, which fully complies with the requirement of certifying the previous works done by the petitioner, and reliance placed by the respondent on the additional certificate issued in Chinese - of which the English translation was also submitted with the bid documents, to reject the petitioners technical bid is erroneous inasmuch, as, it was not even necessary for the petitioners to have submitted any other experience certificate, since the petitioner had submitted the certificate issued by the Statutory Auditor in terms of the RFP.

6. To examine this primary submission of the petitioner, we may, at this stage, notice the relevant provisions of the RFPs, which have been relied upon by the parties in support of their respective submissions. Clause 2.2.2 of the RFP, which is similar in both the RFPs, deals with the aspect of qualification required for bidders. Clause 2.2.2.2 deals with the aspect of Technical

Capacity. We may reproduce herein below the relevant extract of clause 2.2.2.2. The same reads as follows:

       "2.2.2.2        Technical Capacity
               (i)     For     demonstrating   technical    capacity   and

experience (the "Technical Capacity"), the Bidder shall, over the past [5 (five)] years preceding the Bid Due Date, have received payments for construction of Eligible Project(s), or has undertaken construction works by itself in a PPP project, such that the sum total thereof, as further adjusted in accordance with clause 2.2.2.5 (i) &

(ii), is more than Rs.2105.96 (Rs. Two thousand one hundred five crore and ninety six lakh only) (the "Threshold Technical Capacity").

(ii) Provided that at least one similar work of 25% of Estimated Project Cost Rs.263.25 crore (Rs. Two hundred sixty three crore and twenty five lakh only) shall have been completed from the Eligible Projects in Category 1 and/or Category 3 specified in Clause 2.2.2.5. For this purpose, a project shall be considered to be completed, if more than 90% of the value of work has been completed and such completed value of work is equal to or more than 25% of the estimated project cost.

The sole Bidder or in case the Bidder being a Joint Venture, any member of Joint Venture shall necessarily demonstrate additional experience in construction of Major Bridge/ROBs/Flyovers in the last 5 (Five) financial years preceding the Bid Due Date i.e. shall have completed atleast one similar Major Bridge/ROB/Flyover having span equal to or greater than 60 meters". (emphasis supplied)

7. Reliance has been placed by Mr. Kaul on clause 2.2.2.7, which deals with 'Submission in support of Technical Capacity' and reads as follows:

"(i) The Bidder should furnish the details of Eligible Experience for the last 5 (five) financial years immediately preceding the Bid Due Date.

(ii) The Bidder must provide the necessary information relating to Technical Capacity as per format at Annex-II of Appendix-IA.

(iii) The Bidder should furnish the required Project-specific information and evidence in support of its claim of Technical Capacity, as per format at Annex -IV of Appendix-IA",

8. Mr. Kaul has also referred to Annexure II appended to the RFP, which reads as follows:

9. Mr. Kaul submits that in compliance with the aforesaid clauses of the RFP, the petitioner duly submitted the Statutory Auditors Certificate, which reads as follows:

10. Mr. Kaul then drew our attention to the documents - on the basis of

which the petitioners bids have been held to be non responsive. The original

of the said document is in Chinese language.

11. We may observe that, as pointed out by Mr. Ankur Mittal, learned

counsel for the respondent/ NHAI, the said document does not bear any

signature or date. All that it bears is a stamp/ seal, which we assume, is of the

petitioner. We may observe that the seal itself is also in Chinese language

and, therefore, we are in no position to state with certainty as to whether, or

not, the said seal is of the petitioner company.

12. Along with the said document, the petitioner also submitted - what it

claims to be, the true translation of the said Chinese document. The English

translation also does not bear any date or signature. The said English

translation reads as follows:

13. Mr. Kaul submits that the respondent, prior to issuance of the impugned communication, issued a letter dated 6/9.03.2020 seeking certain clarifications latest by 16.03.2020. The petitioner provided the requisite clarifications, including in respect of the alleged non compliance of clause 2.2.2.2 (ii) vide letter dated 14.03.2020. The alleged discrepancy pointed out by the respondent NHAI and the reply of the petitioner thereto, vis-à-vis, clause 2.2.2.2 (ii) (Additional Experience) is extracted herein below, and reads as follows:

Clause 2.2.2.2 (ii) (Additional Experience)-

         As per clause 2.2.2.2 (ii) "The    The Certificate which we
         sole Bidder or in case the         have submitted as Additional
         Bidder being a Joint Venture,      Experience for construction
         any member of Joint Venture        of        Major       Bridge/
         shall necessarily demonstrate      ROBs/Flyovers in the last 5
         additional experience in           (Five)     financial    years
         construction     of      Major     preceding the Bid Due Date
         Bridge/ROBs/Flyovers in the        is duly stamped by the
         last 5 (Five) financial years      Employer,              Design
         preceding the Bid Due Date         Consultant.        The same
         i.e. shall have completed          certificate is also notarized,
         atleast one similar Major          legalized      and    Finally
         Bridge/ROB/Flyover having          Stamped by Indian Embassy
         span equal to or greater than      in China.
         60 meters".
                                            In the same certificate, it is
         Project claimed by the Bidder      clearly    mentioned     that
         for Additional Experience          Nanqui River Bridge adopts
         under the name of Lead             68+128+68m long-span pre-
         Member, maximum span               stressed concrete continuous

length in the subject project is rigid frame girder crossing

not clear. Also the certificates the Nanqui River. So the submitted in Chinese longest span executed is for Language are not clear & not 128 meters.

signed by Client.

14. Mr. Kaul submits that the respondents have ignored the clarification furnished by the petitioner and disregarded the documents submitted by it with its bid, and proceeded to issue the impugned communication dated 20.03.2020, as aforesaid.

15. Mr. Kaul submits that after the issuance of the impugned communication, the petitioner once again submitted a detailed reply in relation to the alleged non compliance of clause 2.2.2.2 (ii) of the RFP vide letter dated 23.03.2020. The reply given by the petitioner is extracted herein below and reads as follows:

"The Experience Certificate of M/s China Railway No.10 Engineering Group Co. Ltd. Lead Member of the Bidder, in Chinese language has been signed by the client duly stamped, which can be seen on Page No.184 Volume I of IV of the submitted bid. English translation of the said certificate has also been provided in the Bid document on PDF Page No.193 of Volume I of IV containing seal of the Client, which has also been apostilled by the Indian Embassy in China and Notarised as per Law of China. However, we hereby once again submit a legible signed and sealed copy of the said Certificate duly Notarised by Indian Notary.

Further, in this regard, it may not be out of place to mention that the Statutory Auditor of Lead Member of the bidder has also submitted a certificate certifying the payments received

for captioned work during last five years as mentioned in the said certificate available at page 168 of Vol I of IV of Bid document and client certificate (in question) is only a supporting document for having carried out the work. "Fourth Section of Line Construction of Newly Built Yunnan

- Guangxi Line (Yunnan Section)" to meet out the additional criteria as required under Clause 2.2.2.2 (ii) of RFP. We further assure that we will show you the said certificate (in original) in case, we emerged as the lowest bidder. We, therefore, request your good self to kindly consider our bid and enable us to participate in financial bid opening". (emphasis supplied)

16. Mr. Kaul submits that the petitioner is a well established construction company performing several construction contracts worth thousands of crores, including in India, and for the NHAI itself. The respondents are, therefore, aware of the technical capacity of the petitioner. He submits that the respondents have adopted a hyper technical approach in rejecting the technical bid of the petitioner, which is not justified.

17. In response to the aforesaid submission of Mr. Kaul, Mr. Mittal, learned counsel for the respondent NHAI submits that the rejection of the technical bid of the petitioner as non responsive is completely justified. He emphasizes that clause 2.2.2.2, which deals with the aspect of technical capacity, provided in clause (ii) that the bidder, or in case the bidder is a joint venture, any member of the joint venture "shall necessarily demonstrate additional experience in construction of Major Bridge/ ROBs/ Flyovers in the last 5 (Five) financial years preceding the Bid Due Date i.e. shall have completed

atleast one similar Major Bridge/ ROB/ Flyover having span equal to or greater than 60 meters". Mr. Mittal submits that even the petitioner was conscious of the fact that this is an additional experience requirement for technical qualification, and to demonstrate that the petitioner has the requisite experience, it submitted the Chinese certificate (unsigned and undated) alongwith a purported English translation (again unsigned and undated). He submits that the Statutory Auditors Certificate relied upon by the petitioner nowhere certifies that the petitioner has the experience of constructing Major Bridge/ ROBs/ Flyovers, or that it had executed a work involving the construction of a Bridge/ROB/Flyover with a span of 60 meters or more in the last five years. The Statutory Auditors Certificate only certifies, on the basis of the books of accounts of the petitioner, that the petitioner was engaged by Yunnan-Guangxi Railway Yunnan Co. Ltd. to execute Fourth Section of Line Construction of Newly Built Yunnan-Guangxi (Yunnan Section) for Railway Sector. It certifies as to when the construction of the project commenced, and when the project was commissioned, and that the petitioner had received payments from the clients for construction works. It also certifies the estimated capital cost of the said project and the amount received by the petitioner during the past five financial years, of which the breakup is given.

18. At this stage, we may observe that though the said certificate purports to give breakup of the amounts received in the past five financial years, the tabulation actually discloses the amount received only in the three years, namely, 2014, 2015 and 2016.

19. Mr. Mittal submits that the said Statutory Auditor Certificate is, therefore of no avail to the petitioner, since the statutory auditor, in this certificate, did not certify the execution of work by the petitioner in the last five years relating to construction of Bridge/ ROBs/ Flyovers. Mr. Mittal submits that the submission of a Chinese document purporting to certify the execution of works relating to Major Bridge/ ROBs/ Flyovers, which was neither signed nor dated, was meaningless, since the ownership of the said document was not established. Moreover, in the absence of the date, it was not even clear as to when the said certificate was drawn. The mere affixation of a seal in Chinese language, which the Technical Evaluation Committee (TEC) of the respondent could not have appreciated, was also meaningless. He submits that the English translation submitted by the petitioner was again merely stamped, and was neither signed nor dated. The mere fact that the documents were apostilled by the Indian Embassy in China, and that they were Notarised by a Notary Public in India, does not resolve the deficiency in the said documents of them not being signed not being dated. Consequently, even the ownership of the translations was not established. Unless signed, the petitioner could not be held bound by the certificate, and could escape from legal consequences if it were to renege from its offer contained in the bid. Thus, the TEC of the respondent rightly did not rely upon the said documents while evaluating the technical bid of the petitioner.

20. To this, the submission of Mr. Kaul is that as per the Chinese law, once a document is stamped, it does not require signatures. We may, at this stage itself, observe that when the petitioner submits its bids in India in response to the RFPs issued by NHAI, it is imperative for the petitioner to meet the

requirement of the RFPs and the Indian laws, and it would be no excuse to claim that as per the Chinese law, the certificates once stamped, do not require to be signed. In any event, Mr. Kaul has offered absolutely no justification for either the Chinese certificate, or its purported English translation, not being affixed with the date on which the said certificates were drawn or stamped.

21. Mr. Kaul, in response to the aforesaid submission of Mr. Mittal, further submits that the petitioner, even now, is in a position to submit the requisite certificate in English language and the petitioner has vast experience of building Bridge/ ROBs/ Flyovers.

22. Having heard the submission of Mr. Kaul, learned senior counsel for the petitioner, and the submission of Mr. Mittal on behalf of the NHAI, and having perused the record, we are of the view that there is no merit in these petitions and the rejection of the petitioners technical bids on account of non compliance of clause 2.2.2.2 (ii) was completely justified. The process of bid evaluation is undertaken by a Technical Evaluation Committee (TEC) of the employer which, in this case, is the NHAI. The RFPs are detailed, and lay down in specific terms the requirements that each of the bidders is required to meet. It is for the bidders to ensure that they meet all the requirements of the RFP. The rules of the game are contained in the terms of the RFP, and all bidders are equally bound thereby. No bidder can claim any relaxation or leeway in the matter of compliance of the said rules, lest it would lead to discrimination, arbitrariness and unfair treatment to other bidders who may

have met all the requirements of the RFP scrupously when submitting their bid.

23. Neither the TEC, nor this Court is concerned with the claimed technical capacity of the petitioner. What is relevant to be examined is the technical capacity demonstrated by the bidder in his bid, which included the certificates that he may annex with his bid. It is only on the basis of the said documents, that the bid has to be evaluated, and nothing more.

24. The first submission of Mr. Kaul that the Statutory Auditors Certificate itself was sufficient to establish the technical capacity of the petitioner, and that there was no obligation for the petitioner to produce any other certificate

- including the certificate in Chinese and its true translation - on the basis of which the petitioners bid has been held to be non responsive, is completely fallacious. As noticed herein above, clause 2.2.2.2 (ii) requires the bidders to establish their additional capability in the matter of construction of Major Bridges/ ROBs/ Flyovers. This capability has been described as "shall necessarily demonstrate additional experience in construction of Major Bridge/ ROBs/ Flyovers in the last 5 (Five) financial years preceding the Bid Due Date i.e. shall have completed atleast one similar Major Bridge/ ROB/ Flyover having span equal to or greater than 60 meters". Thus, the bidder necessarily had to demonstrate its experience in the matter of construction of Major Bridge/ ROBs/ Flyovers, and that too in the last five financial years preceding the bid due date, having a span equal to or greater than 60 meters. The Statutory Auditors Certificate furnished by the petitioner is completely silent on this aspect. Therefore, the first submission of Mr. Kaul that the

Statutory Auditor Certificate was sufficient to establish the additional Technical Capacity required vide clause 2.2.2.2 (ii) of the RFP is rejected.

25. The fallback submission of Mr. Kaul that the Chinese certificate submitted by the petitioner alongwith its English translation should have been accepted by the respondents, also has no merit. This is for the reason that neither the Chinese certificate, nor its English translation bear the signature of the authorized representative of the petitioner, or even the date on which the said certificate was purportedly drawn. In the absence of the signatures, the respondents were not obliged to act upon the said document, merely because they bear some stamp in Chinese language.

26. Acceptance of submission of Mr. Kaul that mere affixation of the seal on the documents was sufficient for their acceptance, can lead to uncertain situations. A bidder may subsequently - after the bid opening, disown a document forming part of the bid, on the ground that the same had not been signed by him or his authorized representative, when it suits him to renege from the document. The TEC cannot be expected to act on the basis of uncertainty vis-à-vis any bidder, as that may jeopardize the entire bidding process which, in such like cases, is very elaborate, and time and expense consuming. Therefore, the insistence of the respondent on submission of duly signed and dated documents/ certificates cannot be trivialized, merely because it suits the petitioner to own up the said documents at this stage. The petitioner was obliged to submit the duly signed and sealed bid which, obviously, meant that the documents and certificates forming part of the bid documents were also required to be duly signed and sealed. The process of apostilling a

document, or its notarization, do not take away the lacuna in the document that is not signed. The Apostille is attached to the original document to verify that it is legitimate and authentic, so it could be accepted in one of the other countries, who are members of the Hague Apostille Convention. Thus, the apostille only certifies that the documents, as produced by the petitioner before the Indian Embassy, were genuine. The same does not tantamount to creation of a legally binding obligation on the person submitting the apostilled document, in respect of the contents of the said document. Similarly, Notarisation of the document does not create a binding obligation, since it does not establish the ownership of the document. Thus, the fact that the Chinese certificate, or its translation was apostilled or notarized, is neither here, nor there.

27. The submission of Mr. Kaul that the petitioner may be granted time, even now, to submit the certificate in compliance of clause 2.2.2.2 (ii) has only to be noticed to be rejected. To do so, would be to strike at the sacrosance of the RFP and the bidding process itself. It would not be fair to the other bidders, who were more careful while submitting their bid. There may be other bidders, whose bid may have been found to be non-responsive for other reasons. Even they may seek similar relaxation which would undermine the sanctity of the bidding process, and result in arbitrariness and discrimination. The petitioner must take responsibility for its own lapse, and cannot find fault with the respondents in rejecting its technical bids when the petitioner itself has been lax in the matter of submission of its bids.

28. For the aforesaid reasons, we do not find any merit in the present petitions, and dismiss the same leaving the parties to bear their respective costs.

VIPIN SANGHI, J

RAJNISH BHATNAGAR, J

MAY 08, 2020