Delhi High Court
Best Buildwell Pvt Ltd vs New Delhi Municipal Council on 2 September, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 02nd SEPTEMBER, 2022
IN THE MATTER OF:
+ W.P.(C) 8635/2022 & CM APPLs. 25965/2022, 29116/2022
BEST BUILDWELL PVT LTD ..... Petitioner
Through: Mr. Bhuvan Mishra, Advocate.
versus
NEW DELHI MUNICIPAL COUNCIL ..... Respondent
Through: Mr. Abhinav Bajaj, Mr.Piyush Jain
and Mr. Himanshu Matta, Advocates.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
SUBRAMONIUM PRASAD, J
1. Being aggrieved by the Order/Minutes of Meeting dated 10.03.2022
whereby the Technical Evaluation Committee of the Respondent herein
refused to scrutinize and consider technical bid of the Petitioner which had
been submitted in response to the Notice Inviting Tender (NIT) No.05/EE
(Spl. Project)/AB/2021-2022 issued by the Office of the Executive Engineer
(Special Project), Civil Engineering Department of the Respondent, the
instant petition has been filed by the Petitioner.
2. The instant petition has been filed with a prayer to issue an
appropriate writ, order or direction for setting aside the Order/Minutes of
Meeting dated 10.03.2022 by which the Technical Evaluation Committee of
the Respondent has refused to consider the bid of the Petitioner. The
Petitioner has also prayed for issuance of a writ of mandamus directing the
Signature Not Verified
Digitally Signed By:HARIOM
SINGH KIRMOLIYA
Signing Date:03.09.2022
16:12:01
Respondent herein to consider the bid submitted by the Petitioner in
response to the said Notice Inviting Tender (NIT).
3. The facts, in brief, leading to the instant petition are that the Petitioner
is a Private Limited Company, incorporated in the year 1996 and is engaged
in construction activities. On 28.01.2022, the Office of the Executive
Engineer (Special Project), Civil Engineering Department of the Respondent
issued a Notice Inviting Tender (NIT) No. 05/EE (Spl. Project)/ AB/ 2021-
22 inviting online bids for Construction of Commercial Complex at
Yashwant Place, Chanakyapuri, New Delhi (Composite Work) at an
estimated cost of Rs. 119,94,21,774/- with Earnest Money Deposit (EMD)
for a sum of Rs.1,29,94,218/- to be completed within 36 (Thirty-Six)
Months. It is stated that pursuant to the NIT, the Petitioner submitted its bid
within the prescribed time and with all the required documents as mentioned
in the NIT.
4. It is stated that on 29.04.2022, when the Petitioner accessed the
website of the Respondent, it was revealed that the bid documents of several
agencies, who had submitted their bids in response to the abovementioned
NIT, had been scrutinized and the Petitioner's bid had been rejected on the
ground that it had not submitted the requisite documents.
5. Being aggrieved, the Petitioner approached this Court by filing the
instant petition before opening of financial bids. This Court on 30.05.2022
issued notice in the petition and directed that either the Respondent should
not proceed to open the financial bids of the bidders which are found
technically qualified or, in case, they are so inclined, to open the financial
bids of the technically qualified bidders, as well as that of the Petitioner
without prejudice to their rights and defences in the petition, and without it
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Digitally Signed By:HARIOM
SINGH KIRMOLIYA
Signing Date:03.09.2022
16:12:01
creating any right or equity in favour the Petitioner. In case, the respondent
chooses to open the financial bids of the technically qualified bidders, and
that of the Petitioner, they would keep the financial bid of the Petitioner in a
sealed cover after opening the same. The pleading were completed and with
the consent of the parties, the petition was heard finally.
6. Mr. Bhuvan Mishra, learned counsel appearing for the Petitioner,
draws the attention of this Court towards the Minutes of Meeting dated
10.03.2022 which is the subject matter of the instant petition. The
Respondent, by the said bid, has considered the bids of all the bidders and
has rejected the bid of the Petitioner herein. The said Minutes of Meeting
dated 10.03.2022 reads as under:
"Name of work: Development of available space at
Yashwant Place, Chanakyapuri, New Delhi.
Sub head: Construction of Commercial Complex at
Yashwant Place, Chanakyapuri, New Delhi (Composite
Work).
Tender ID No. 2022_NDMC_215433_1
Minutes of Meeting dated 10.03.2022
It is certified that approved NIT no. 05/EE(Special
Project)/2021-22 for the work "Development of available
space at Yashwant Place, Chanakyapuri, New Delhi S.H.
Construction of Commercial Complex at Yashwant Place,
Chanakyapuri, New Delhi (Composite work)" has been
uploaded on e-procurement portal and all the documents
uploaded by the participant's agencies has been downloaded
and compared with the approved NIT. Accordingly,
Comparative Statement has been prepared and presented
before Technical Evaluation Sub-committee, alongwith all
downloaded documents and approved NIT.
Signature Not Verified
Digitally Signed By:HARIOM
SINGH KIRMOLIYA
Signing Date:03.09.2022
16:12:01
First meeting of Technical Evaluation Sub-Committee
comprising of following members was held in the Chamber
CE(C-II) on 10.03.2022 at 3.00 pm for scrutinizing the
technical bids of the above cited project:
(i) Er. Sudarshan Kumar, CE(C-Il) - on chair
(ii) Er Ashok Kumar, SE (Planning)
(iii Er. Ajay Gupta SE (PH)
(iv Er. S.A. Khan, SE (BCM-Il)
(v) Er. William Parashar, EE(Spl. Proj.)
(vi)Ms. Mona Sodhi, Sr. AO (W-II)
(vii)Sh. Sudershan Bhardwaj, ALO
(viii)Sh. Sukesh Aggarwal, AFA
Technical Evaluation Sub-Committee scrutinized the
documents uploaded by the bidders as per the NIT
conditions and its observations are as under:-
1. M/s Parnika Commercial and Estates Pvt. Ltd.
(i) The content of affidavit submitted by the Agency is not as
per the content of the Affidavit as stipulated Form-6 under
Clause 1.2.2 in the NIT. It has been decided by the TEC to
obtain the assurance for forfeiting of Earnest Money and
Performance Guarantee both in case the contractor is found
getting the work done through another contractor on back to
back basis.
(ii) The agency has submitted the financial turnover and
Balance Sheet for the year 2016-2017 to 2020-2021,
whereas it is stipulated for the year 2015-2016 to 2019-2020
as per Form A in the NIT. The agency has also not submitted
Part-II of Form-A i.e. Financial arrangement for carrying
out the proposed work. The TEC has decided to obtain
Financial Turnover with profit after taxes and Balance
Sheet for the year 2015-2016 & Part-II for the Form-A in
accordance to Circular No. DG/SOP/30 dt. 24.11.2021
issued by Dir. General (CPWD).
Signature Not Verified
Digitally Signed By:HARIOM
SINGH KIRMOLIYA
Signing Date:03.09.2022
16:12:01
2. M/s Pushpdeep Infrastructure Pvt Ltd.
(i) The Bank Solvency Certificate submitted by the Agency
was of old date i.e. 16.11.2021, which is well before the date
of floating of the tender i.e. 28.01.2022, and it is not in the
name of EE (Spl. Project) as stipulated in the Form-B of the
NIT. Further Net Worth as per Form-B1 of the NIT has not
been submitted by the agency.
(ii) All the documents uploaded by the agency do not contain
Stamp/Seal of the agency.
(iii) The affidavit is found undated attested by the Notary.
(iv) Hence it has been decided by the TEC that the technical
bid of M/s Pushpdeep Infrastructure Pvt. Ltd be not
considered for further scrutiny.
3. M/s Best Buildwell Pvt. Ltd.
(i) The Bank Solvency Certificate submitted by the Agency
was of old date i.e. 21.06.2021, which is well before the date
of floating of the tender i.e. 28.01.2022, and It is not in the
name of EE (Spl. Protect) as stipulated in the Form-B of the
NIT. Further Net Worth as per Form-B1 of the NIT has not
been submitted by the agency
(ii) The agency has submitted Part-II of Form-A i.e.
Financial arrangement for carrying out the proposed work.
(iii) Hence it has been decided that technical bid of M/s Best
Buildwell Pvt. Ltd. be not considered for further scrutiny.
4. M/s Ram Kripal Singh Construction Pvt. Ltd
(i) The agency has submitted the financial turnover and
Balance Sheet for the year 2016-2017 to 2020-2021,
whereas it is stipulated for the year 2015-2016 to 2019-2020
as per Form A in the NIT. The agency has also not submitted
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Digitally Signed By:HARIOM
SINGH KIRMOLIYA
Signing Date:03.09.2022
16:12:01
Part-II of Form-A i.e. Financial arrangement for carrying
out the proposed work. the TEC has decided to obtain
Financial Turnover and Balance Sheet for the year 2015-
2016 & Part-II for the Form-A in accordance to Circular
No. DG/SOP/30 dt. 24.11.2021 issued by Dir. General
(CPWD).
(ii) The agency has submitted the experience certificate for
construction of Multistory RCC frame structure (25 Mtr
Height). It has been decided by the TEC to obtain
clarification from the issuing authority regarding number of
stories and basement in the said building in accordance to
Circular No. DG/SOP/30 dt. 24.11.2021 issued by Dir.
General (CPWD).
5. M/s Abhilasha Enterprises
(i) The agency has submitted the financial turnover and
Balance Sheet for the year 2016-2017 to 2020-2021,
whereas it is stipulated for the year 2015-2016 to 2019-2020
as per Form A in the NIT. The agency has also not submitted
Part-II of Form-A i.e. Financial arrangement for carrying
out the proposed work. The TEC has deeded to obtain
Financial Turnover and Balance Sheet for the year 2015-
2016 & Part-II for the Form-A in accordance to Circular
No. DG/SOP/30 dt. 24.11.2021 issued by Dir. General
(CPWD)
(ii) The agency has submitted the experience certificate for
construction of RCC frame structure (G+9). It has been
decided by the TEC to obtain clarification from the issuing
authority regarding basement in the said building in
accordance to Circular No. DG/SOP/30 dt. 24.11.2021
issued by Dir. General (CPWD).
6. M/s Globe Civil Projects Pvt. Ltd
(i) The agency has submitted the financial turnover and
Balance Sheet for the year 2018-2017 to 2020-2021.
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Digitally Signed By:HARIOM
SINGH KIRMOLIYA
Signing Date:03.09.2022
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whereas it is stipulated for the year 2015-2016 to 2019.2020
as per Form A in the NIT. The agency has also not submitted
Part-II of Form-A i.e. Financial arrangement for carrying
out the proposed work. The TEC has decided to obtain
Financial Turnover and Balance Sheet for the year 2015-
2016 & Part-II for the Form-A in accordance to Circular
No. DG/SOP/30 dt. 24.11.2021 issued by Dir. General
(CPVVD).
(ii) Further regarding Form E, It was decided by the TEC to
obtain copy of Resolution of Board meeting regarding
delegation of power to sign and submit the bid by Mr. Vipul
Khurana as Mentioned at page no.6539 of Bid documents.
Further a clarification is also needed regarding name of
Ved Khurana & Ved Parkash Khurana as menboned at page
no. 6526 & 6538.
7. M/s Dee Vee Projects Ltd.
(i) The agency has submitted the financial turnover and
Balance Sheet for the year 2018-2017 to 2020-2021,
whereas it is stipulated for the year 2015-2016 to 2019-2020
as per Form A in the NIT. The agency has also not submitted
Part-II of Form-A i.e. Financial arrangement for carrying
out the proposed work. The TEC has decided to obtain
Financial Turnover with profit after tax and Balance Sheet
for the year 20154016 & Part-II for the Form-A in
accordance to Circular No. DG/SOP/30 dt. 24 11.2021
issued by Dir. General (CPWD).
Further, it has also been, decided by TEC that the
work experience/performance certificate, Bank Solvency
certificate and EMD in the shape of FDR & Bank Guarantee
be verified from the issuing authorities for the agencies
considered for further evaluation by the TEC."
7. Mr. Mishra further draws attention of this Court towards the Clauses
7.4 and 8 of the NIT which read as under:
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Digitally Signed By:HARIOM
SINGH KIRMOLIYA
Signing Date:03.09.2022
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7.4 The bidder should have a solvency of Rs. 47.98
Crore and certified by his Bankers as per Performa 'B'.
Or
Net worth certificate of minimum 10% of the
estimated cost put to tender issued by certified Chartered
Accountant as per Performa 'B-1'.
8. Financial Information:
Bidder should furnish the Annual financial statement
for the last five years in Form 'A' and solvency certificate in
Form 'B' or Net worth certificate in Form 'B-1'."
8. A perusal of the Minutes of Meeting dated 10.03.2022 shows that the
Petitioner's technical bid was rejected on the ground that the Bank Solvency
Certificate submitted by the Petitioner was of an older date i.e. 21.06.2021
which is before the date of floating of the tender i.e. 28.01.2022 and the
same is not in the name of Executive Engineer (Spl. Project) as stipulated in
the Form-B of the NIT, and further the Net Worth as per Form B-1 of the
NIT has also not been submitted by the Petitioner. The Petitioner has
submitted Part-II of Form-A i.e. financial arrangement for carrying out the
proposed work.
9. Mr. Bhuvan Mishra, learned counsel appearing for the Petitioner,
submits that the Petitioner had submitted the Bank Solvency Certificate
dated 21.06.2021. He states that the Petitioner has also submitted Form-A
i.e. the annual financial statement for the last five years from the year 2015-
16 to 2019-20. He states that the Petitioner could have been asked to furnish
the Bank Solvency Certificate of a later date near the date of NIT. He states
that similar concession has been granted to the other bidders wherein other
bidders have been permitted to get over the shortcomings in their respective
bids. He further draws attention of this Court towards guidelines issued by
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Digitally Signed By:HARIOM
SINGH KIRMOLIYA
Signing Date:03.09.2022
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the Director General, CPWD wherein the bidders have been permitted to
rectify the deficiencies found in their bids within a period of one week. He
also draws attention of this Court to Form B-1 which is the Net Worth
Certificate. He, therefore, submits that the reasons given to reject the bid of
the Petitioner that the Petitioner has not submitted the Form B-1 of the NIT
is incorrect.
10. Mr. Mishra submits that the Petitioner has been subjected to the
hostile discrimination inasmuch as the other bidders have been extended the
benefit of rectifying the deficiencies in their bids, and the Petitioner herein
has not been extended the same benefit.
11. Per contra, Mr. Abhinav Bajaj, learned counsel appearing for the
Respondent, contends that there is a difference between non-submission of
documents and submission of deficient documents. He submits that the
Petitioner has submitted the Bank Solvency Certificate dated 21.06.2021
which is well before the date of floating of tender i.e. 28.01.2022 and the
same should have been issued after the date of issuance of NIT. He submits
that the Bank Solvency Certificate dated 21.06.2021 that has been submitted
by the Petitioner is also not in the name of Executive Engineer (Spl. Project)
as stipulated in the Form-B of the NIT. He further draws attention of this
Court towards the CPWD Works Manual 2019 and submits that the
Petitioner could not have been permitted to furnish the documents and the
technical bid of the Petitioner was, therefore, held to be unresponsive.
12. Heard Mr. Bhuvan Mishra, learned counsel appearing for the
Petitioner, Mr. Abhinav Bajaj, learned counsel appearing for the Respondent
and perused the material on record.
13. The scope of interference by the Courts while exercising its
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Digitally Signed By:HARIOM
SINGH KIRMOLIYA
Signing Date:03.09.2022
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jurisdiction under Article 226 of the Constitution of India is now well
settled. The Apex Court in Tata Cellular vs. Union of India, (1994) 6 SCC
651, has laid down the principles of judicial review which are reproduced as
under:
"94. The principles deducible from the above are:
(1) The modern trend points to judicial restraint in
administrative action.
(2) The court does not sit as a court of appeal but merely
reviews the manner in which the decision was made.
(3) The court does not have the expertise to correct the
administrative decision. If a review of the administrative
decision is permitted it will be substituting its own
decision, without the necessary expertise which itself may
be fallible.
(4) The terms of the invitation to tender cannot be open
to judicial scrutiny because the invitation to tender is in
the realm of contract. Normally speaking, the decision to
accept the tender or award the contract is reached by
process of negotiations through several tiers. More often
than not, such decisions are made qualitatively by
experts.
(5) The Government must have freedom of contract. In
other words, a fair play in the joints is a necessary
concomitant for an administrative body functioning in an
administrative sphere or quasi-administrative sphere.
However, the decision must not only be tested by the
application of Wednesbury principle of reasonableness
(including its other facts pointed out above) but must be
free from arbitrariness not affected by bias or actuated
by mala fides.
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Digitally Signed By:HARIOM
SINGH KIRMOLIYA
Signing Date:03.09.2022
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(6) Quashing decisions may impose heavy administrative
burden on the administration and lead to increased and
unbudgeted expenditure.
Based on these principles we will examine the facts of
this case since they commend to us as the correct
principles."
The abovementioned principles have been quoted in several Judgments
passed by the Apex Court and the most recent being in N. G. Projects
Limited vs. Vinod Kumar Jain and Ors, (2022) 6 SCC 127.
14. It is settled law that Courts must exercise a lot of restraint while
exercising its powers of judicial review in contractual and commercial
matters, and the Courts should normally be slow to interfere in contractual
matters unless a clear cut case of arbitrariness, mala fides, bias or
irrationality is made out. It is settled that the Courts must realize their
limitations and the havoc which needless interference in commercial matters
can cause. It is also settled that the Courts should also not use a magnifying
glass while scanning the tenders and make every small mistake appear like a
big blunder and in fact, the Courts must give "fair play in the joints" to the
Government and Public Sector Undertakings in matters of contract (Refer:
Silppi Constructions Contractors vs. Union of India and Anr., (2020) 16
SCC 489).
15. This Court has carefully perused the Minutes of Meeting dated
10.03.2022 wherein the bids of all the bidders were evaluated. In case of
M/s Parnika Commercial And Estates Pvt. Ltd, it was observed that the said
bidder had not submitted the balance sheet for the year 2015-16 and the
Part-II of Form-A i.e. financial arrangement for carrying out the proposed
work, and the Technical Evaluation Committee decided to obtain financial
Signature Not Verified
Digitally Signed By:HARIOM
SINGH KIRMOLIYA
Signing Date:03.09.2022
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turnover with profit after taxes and balance sheet for the year 2015-16 &
Part-II for the Form-A. Similarly, in the case of M/s Ram Kirpal Singh
Constructions Pvt. Ltd, the said bidder had not submitted balance sheet for
the year 2015-16 and had also not submitted the Part-II of Form-A i.e.
financial arrangement for carrying out the proposed work, and the Technical
Evaluation Committee decided to obtain financial turnover and balance
sheet for the year 2015-16 and Part-II for the Form-A as stipulated in the
Clause-8 of the NIT. Similarly, in the case of M/s Globe Civil Projects Pvt.
Ltd, the said bidder had not submitted balance sheet for the year 2015-16
and the Part-II of Form-A i.e. financial arrangement for carrying out the
proposed work, and the Technical Evaluation Committee decided to obtain
financial turnover and balance sheet for the year 2015-16 and Part-II for the
Form-A. Similarly, in the case of M/s Dee Vee Projects Ltd, the said bidder
had not submitted the balance sheet for the year 2015-16 and the Part-II of
Form-A i.e. financial arrangement for carrying out the proposed work, and
the Technical Evaluation Committee decided to obtain financial turnover
with profit after taxes and balance sheet for the year 2015-16 & Part-II for
the Form-A.
16. The Petitioner, in the present case, had submitted a Bank Solvency
Certificate dated 21.06.2021 which according to the Respondent was before
the date of floating of the tender i.e. 28.01.2022 and it was not in the name
of Executive Engineer (Spl. Project) as stipulated in the Form-B of the NIT.
The Petitioner had given a Bank Solvency Certificate dated 21.06.2021
which is about six months before the date of the floating of the tender i.e.
28.01.2022. It is not as if the Petitioner had submitted a very old Bank
Solvency Certificate. The said Certificate was only six months prior to the
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Digitally Signed By:HARIOM
SINGH KIRMOLIYA
Signing Date:03.09.2022
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issuance of the tender and the benefit of filing a fresh solvency certificate
which is near the date of tender could have been extended to the Petitioner.
The other bidders have been extended the benefit of filing documents. There
is no reason which is forthcoming as to why such benefit has not been
extended to the Petitioner herein. The contention of the Respondent that this
is a case of not producing any documents, and that all other bidders have
been only asked to provide deficient documents cannot be accepted in the
present case.
17. The modification in the Standard Operating Procedure (SOP) for
CPWD Works Manual, 2019 reads as under:
"SOP No.4/4: Procedure for opening of Two/Three Bid
tenders (refer Para 4.5.3 (4))
2. Three Bid System
(iv) Financial bid of qualified bidders are then opened
at notified time, date and place in presence of bidders or the
representatives. The validity of the tenders is reckoned from
the date of opening of the technical bids.
After opening of the Eligibility/Technical bids in two/three
Bid system, the bid opening authority prepares a list of
deficiencies found in the bids of each bidder vis-à-vis
requirements as per NIT within one week and
communicates the same to individual bidders by the Speed
Post/E mail with a request to furnish required
documents/clarifications within a week's time, failing
which it is presumed that they do not have any further
documents/clarifications to furnish and decision on bids is
taken accordingly." (emphasis supplied)
18. Learned counsel for the Respondent has placed reliance on the
Manual for Procurement of Works, 2019 and more particularly on the
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Digitally Signed By:HARIOM
SINGH KIRMOLIYA
Signing Date:03.09.2022
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Clauses 5.4.2 and 5.4.5 which deal with unresponsive tenders and
clarification of bids/shortfall of documents respectively. Clauses 5.4.2 and
5.4.5 of the Manual for Procurement of Works, 2019 read as under:
"5.4.2 Unresponsive Tenders
Tenders that do not meet the basic requirements specified in
the bid documents are to be treated as unresponsive (both
during Techno-commercial evaluation and Financial
Evaluation in case of Two Envelope bidding) and ignored.
All tenders received will first be scrutinised by the TC to see
whether the tenders meet the basic requirements as
incorporated in the Bid document and to identify
unresponsive tenders, if any. Unresponsive offers may not
subsequently be made responsive by correction or
withdrawal of the non- conforming stipulation. Some
important points on the basis of which a tender may be
declared as unresponsive and be ignored during the initial
scrutiny are:
i) The tender is not in the prescribed format or is
unsigned or not signed as per the stipulations in the bid
document;
ii) The required EMD has not been provided or
exemption from ED is claimed without acceptable proof
of exemption;
iii) The bidder is not eligible to participate in the bid
as per laid down eligibility criteria (example: the tender
enquiry condition says that the bidder has to be a
enlisted contractor but the tenderer is not a enlisted
contractor);
iv) The bid departs from the essential requirements
specified in the bidding document (for example, the
tenderer has not agreed to give the required performance
security); or
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Digitally Signed By:HARIOM
SINGH KIRMOLIYA
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v) Against a schedule in the list of requirements in
the tender enquiry, the tenderer has not quoted for the
entire requirement as specified in that schedule
(example: in a schedule, it has been stipulated that the
tenderer will supply the equipment, install and
commission it and also train the Procuring Entity's
operators for operating the equipment. The tenderer has,
however, quoted only for supply of the equipment).
5.4.5 Clarification of Bids/ Shortfall Documents
During evaluation and comparison of bids, the Procuring
Entity 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
including specifications, 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, GSTN number 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
contract without its completion/performance certificate, the
certificate can be asked for and considered. However, no
new contract should be asked for so as to qualify the
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Digitally Signed By:HARIOM
SINGH KIRMOLIYA
Signing Date:03.09.2022
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bidder."
19. A perusal of the abovementioned Clauses shows that the case of the
Petitioner does not come within the four corners of an unresponsive tender.
On the other hand, the case of the Petitioner falls under Clause 5.4.5, which
deals with clarification of bids/shortfall of documents. This Court finds that
the Respondent ought to have sought clarification regarding the bid and the
shortfall of documents from the Petitioner as has been sought from the other
bidders.
20. Even according to the SOP, the Petitioner could have been given time
to furnish a fresh Bank Solvency Certificate. It is not as if the Petitioner had
not filed any Bank Solvency Certificate. Had that been so, the argument of
the Respondent could have been accepted. The Solvency Certificate has not
been accepted because it was issued six months before the date of the
issuance of the tender and, therefore, it is a case of deficient documents and
not a case of non-filing of the requisite documents.
21. This Court finds that the benefit of providing further documents has
been extended to other bidders, and the Petitioner has been discriminated for
no valid reason. It cannot be said that the Bank Solvency Certificate
submitted by the Petitioner is so old or ancient that it amounts to not filing
Bank Solvency Certificate at all. The action of the Respondent in not
permitting the Petitioner to provide a fresh Bank Solvency Certificate is
inexplicable.
22. Under Clause 7.4 of the NIT, the bidder either should have filed a
solvency certificate of Rs.47.98 Crore certified by the Bankers or should
have filed a net worth certificate of minimum 10% of the estimated cost put
to the tender and the solvency certificate in Form 'B' or net work certificate
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Digitally Signed By:HARIOM
SINGH KIRMOLIYA
Signing Date:03.09.2022
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in Form 'B-1'. The Petitioner has filed the form of net worth certificate from
the Chartered Accountant, which is in Form 'B-1'. The said certificate,
which is a part of the Annexure P-6, annexed with the rejoinder reads as
under:-
"FORM FOR CERTIFICATE OF NET WORTH FROM
CHARTERED ACCOUNTANT
" It is to certify that as per the audited balance sheet and
profit & loss account during the financial year 2019-20, the
Net Worth of M/s Best Buildwell Private Limited having
registered office at 317, 3rd floor, Best Arcade, Sector-12,
Dwarka, New Delhi-110075, as on 31/03/2020 is
Rs.19034.48 Lacs after considering all liabilities. It is
further certified that the Net Worth of the company has not
eroded by more than 30% in the last three years ending on
31/03/2020."
Shailender K. Bajaj & Co.
Chartered Accountants
Firm Registration Number 12491N
Place: New Delhi
Date: 18/06/2021 Shailender K. Bajaj
Proprietor
M.No.91615
UDIN:21091615AAAAKL7522"
The Petitioner's bid, therefore, could not have been rejected.
23. Learned counsel for the Respondent has also placed reliance on the
Judgment of the Apex Court in N. G. Projects Limited vs. Vinod Kumar Jain
and Ors (supra). In the said Judgment, the bid had been rejected for not
furnishing the requisite Bank Guarantee. In the present case, the Petitioner
did submit the Bank Solvency Certificate dated 21.06.2021 which is about
Signature Not Verified
Digitally Signed By:HARIOM
SINGH KIRMOLIYA
Signing Date:03.09.2022
16:12:01
six months prior to the date of the floating of the tender i.e. 28.01.2022 and
that does not mean that the Bank Solvency Certificate could not have been
looked at all. As stated earlier, the period of six months i.e. prior to the date
of floating of the tender i.e. 28.01.2022 cannot be said to be an older Bank
Solvency Certificate, and the clarification in this regard could have been
sought for or the Petitioner could have been asked to produce a fresh Bank
Solvency Certificate like other bidders who had been asked to submit the
balance sheets and Part-II of Form-A.
24. In view of the above, this Court finds that the Petitioner has been
subjected to discrimination and has not been extended the very same benefit
of rectifying the deficiencies in the bids, as has been extended to other
bidders. It is not the case where the Petitioner was not in a position to
provide a Bank Solvency Certificate of a nearer date. The Petitioner ought to
have been asked to provide a fresh Bank Solvency Certificate of a nearer
date.
25. Accordingly, the appeal is allowed with a direction to the Respondent
to permit the Petitioner to file a fresh Bank Solvency Certificate, and in case
a fresh Bank Solvency Certificate is filed by the Petitioner, his financial bid
is directed to be considered.
26. Pending applications also stand disposed of.
SATISH CHANDRA SHARMA, CJ
SUBRAMONIUM PRASAD, J
SEPTEMBER 02, 2022
S. Zakir
Signature Not Verified
Digitally Signed By:HARIOM
SINGH KIRMOLIYA
Signing Date:03.09.2022
16:12:01
