M/S Tba Infrastructure Pvt vs State Of J&K And Others
2021 Latest Caselaw 1654 j&K

      HIGH COURT OF JAMMU& KASHMIR AND LADAKH
                      AT JAMMU

                                              WP(C) No. 1660/2021
                                              CM Nos. 6462/2021 &
                                              6818/2021

                                                  Pronounced on :10th .12.2021

M/S TBA Infrastructure Pvt.                                  .... Petitioner(s)
Ltd.

                                 Through:- Mr. R.K. Gupta, Sr. Advocate
                                           with Mr. Uday Bhaskar,
                                           Advocate.

                           V/s

State of J&K and others                                   .....Respondent(s)

                                 Through:- Mr. Ravinder Gupta, AAG
                                           Mr. Rajnish Raina, Advocate.
                                           Mr. Himanshu Beotra,
                                           Advocate.

CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
                                 JUDGMENT

01. The office of Executive Engineer PWD (R&B), Construction

Division No.II Jammu issued a fresh short notice inviting tender e-NIT

No. 1/Smart City/2021-22/Div.-2 dated 05.06.2021 requesting for

proposal for Engineering, procurement and construction (EPC) contract

for junction improvements in Jammu City. The petitioner-Company M/s

TBA Infrastructure Pvt. Ltd. being eligible submitted its bid both

technical as well as financial online on 19.06.2021. As per the bid

summary, the date and time of opening the technical bid was to be

22.06.2021 at 13:00 Hours in the office of Chief Engineer PWD (R&B)

Department, Jammu, the date and time of the financial bid was to be

notified after the evaluation of the technical bid.

02. The Technical Evaluation Committee opened the technical

bid of the bidders (1) M/s TBA Infrastructure; (2) M/s Harcharan Dass

Gupta; (3) RSB Projects Limited; & (4) MG Contractors Pvt. Ltd. for

their evaluation on 15.07.2021. Upon the technical evaluation of the bids,

the technical bid of the petitioner-M/s TBA Infrastructure was rejected as

non-responsive and the same was uploaded on the portal

http://jktenders.gov.in on 15th of July, 2021. As the bid of the petitioner

was rejected, therefore, the petitioner requested for reviewing the decision

regarding its bid and also for providing reasons for rejecting the technical

bid vide letter dated 15.07.2021.

03. In response to the letter of the petitioner dated 15.07.2021,

Chief Engineer PW (R&B) Department/respondent No. 3 vide his letter

dated 19.07.2021 informed the petitioner that its bid was found to be non-

responsive on account of the fact that the petitioner had submitted the

financial cost of the bid in hard copy in appendix 3 on Page-438 of the

request for proposal (RFP). The members of Technical Evaluation

Committee during the technical evaluation of the bids were of the

unanimous opinion that if the bid of the petitioner would be considered, it

would be in gross violation of point No. 2 of the note in appendix 3 which

clearly states that "this format is to be filed online. Any hard copy

submission of the financial bid shall lead it to the rejection of the bid".

04. The financial bid of the other eligible bidders were opened on

16.07.2021 and on evaluation, M/S RSB Projects Ltd. was declared as the

lowest bidder having quoted a price of Rs. 29,95,00000/- (Rupees Twenty

Nine Crore and Ninety Five Lacs only).

05. The petitioner is aggrieved of rejection of its technical bid

and also for the reasons assigned for its rejection vide letter dated

19.07.2021, as being contrary to the facts, therefore, the same is

unsustainable on the following grounds:-

(i) According to the petitioner, Appendix-3 appearing at Page No.

438 of the RFP formed a part of the technical bid and it required

the bidder to fill up the same online and quote his price inclusive

of all taxes. The requirement of tender document was to fill up

this appendix by quoting his bid price online, therefore, it is

submitted that if there was no requirement of quoting the bid

price as per appendix-3 it would not have formed part of bidding

document/technical document.

(ii) The petitioner had submitted its bid online in all respects and no

part of it was provided in hard copy and, therefore, was not in

violation of Point No. 2 note in Appendix-3 which is the reason

assigned for rejecting his bid.

(iii) The petitioner had quoted the bid price in Appendix-3 of the

Technical bid but the same was submitted online in the financial

part also as the bid document required the bidder to quote his bid

in Appendix-3 as well as financial part, therefore, the petitioner

acted in strict compliance of the bidding document is

unsustainable on whimsical grounds and the same has also been

rejected on mala fide grounds.

(iv) It is also contended that the petitioner has quoted its bid price of

Rupees Twenty nine crore Seventy four lacs Sixty thousand

ninety one only which was lesser than the lowest bidder

selected, as such, his rejection being arbitrary, illegal and is

required to be set aside and a direction be issued to the

respondent to open his financial bid and allot the contract to

him.

06. The respondents in their objections have submitted that as

per the Request For Proposal (RFP) & Instructions to Bidder (ITB)

document comprising the bid was to be submitted by the bidder online in

two separate parts. Part-I was the technical part and Part-II was the

financial part. The petitioner uploaded a template disclosing its bid price

with technical bid which was not the part of a technical bid which led the

same being „non-responsive‟.

07. Mr. Ravinder Gupta, learned AAG, submits that during

technical evaluation, the Technical Evaluation Committee opined that the

petitioner had submitted its Price Bid in hard copy along with the

Technical Bid, pre-qualification documents in violation to the Instructions

to Bidder (ITB), therefore, the bid submitted by the petitioner was

declared as non-responsive as per the conditions of RFP and the same was

also uploaded on the http://jktenders.gov.in portal. The financial bids of

the remaining three eligible bidders were evaluated by the Financial

Evaluation Committee and respondent No. 5 was declared as L-1.

08. Mr. Ravinder Gupta, learned AAG has also placed reliance

on the J&K Public Works Department Engineering Manual 2020 in terms

of which Instructions To Bidders (ITB) and the bidding documents, a

document comprising the bid in electronic shall be in two parts i.e.,

Technical as well as Financial. It has been clearly stated that disclosure of

financial bid in the technical bid Part-I shall render the bidder non-

responsive. The petitioner had uploaded the template in technical bid

disclosing his bid price, therefore, the bid of the petitioner had become

non-responsive. The Technical Evaluation Committee after considering

the same had rightly rejected the bid of the petitioner.

09. Mr. Rajnish Raina, learned counsel for the respondent No. 2

submitted that Appendix-3 as is apparent from RFP was only a template

and a document of the financial part which was clearly written on the

appendix, therefore, uploading of the same by the petitioner within its

technical bid rendered the petitioner‟s bid non-responsive and the same

was, accordingly, rejected. As there was no provision to upload the

Appendix-3 in technical part of the bid and the same should have been

uploaded separately as a part of the financial bid and as per the

instructions, the Technical Evaluation Committee, thus, rightly rejected

the same.

10. Mr. Himanshu Beotra, learned counsel appearing on behalf

of respondent No. 5 submitted that the petitioner had filled the financial

cost of its bid in Appendix-3 which was only a template by writing with a

pen and thereafter uploaded the same with the technical bid, thus,

violating the mandatory condition of J&K Public Works Department

Engineering Manual 2020 and tender bid document, leading to the

rejection of its bid in technical evaluation. It is submitted that the

petitioner had failed to fulfill the criteria provided by the e-NIT and,

accordingly, his bid was rejected as non-responsive. According to him, the

petitioner despite being an experienced contractor executing various

works, after rejection of its bid has wrongly pleaded ignorance of the

same and has preferred the present writ on false and frivolous grounds.

The financial bid of the bidder, who qualified the technical evaluation,

was considered and the respondent No. 5 was declared as L-1.

11. Before proceeding further ahead, to consider the above, it

would be useful to consider the principles governing the exercise of power

of judicial review of the administrative action by the Court.

12. In Tata Cellular v. Union of India; (1994) 6 SCC 651, the

position has been laid down in Para-94 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.

(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.

13. Similarly, in Jagdish Mandal vs State of Orrisa, 2007 14

SCC 517, Hon‟ble the Supreme Court has laid down the following tests

for judicial interference in exercise of powers of judicial review of

administrative action:

"A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:-

i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone.

OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say : 'the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached.'

ii) Whether public interest is affected.

If the answers are in the negative, there should be no interference under Article 226......"

Keeping in view these principles now reverting back to the

facts of the case.

14. The Request for Proposal (RFP) for Engineering

Procurement and Construction Contract for junction improvement in

Jammu city was initially put to tender on 16.03 2021 but the same was

cancelled. A fresh short notice e-NIT No. 01/Smart City/2021-22/Div.-2

dated 05.06.2021 which invited bids for execution of contract works for

Engineering Procurement and Construction (EPC) contract for junction

improvements in Jammu City.

15. In response to the e-NIT, the following bidders/vendors

submitted their bids in terms of the NIT No. :

             (i)     M/S. TBA Infrastructure Pvt. Ltd.
             (ii)    M/S. Harcharan Dass Gupta
             (iii)   M/S. RSP Projects Ltd.
             (iv)    M/S. MG Contractors Pvt. Ltd.

16. In the technical evaluation, the technical bid of the petitioner

was rejected and the financial bid of the remaining three eligible bidder

were opened by the Financial Evaluation Committee on 16.07.2021 and

respondent No. 5-M/s RSP Project Ltd. was declared as L-1.

17. The contents of the Request for Proposal is divided into four

Sections alongwith list of tables and list of figure. Section 3 contains the

Instructions to Bidders (ITB) and BID Datasheet (BIDS). This Section is

further divided into four parts:-

A. General B. Bidding Documents C. Preparation of Bids

D. Submission of Bids E. Bid Opening and Evaluation

Part-B i.e., Bidding documents reads as under:-

3.8 Content of Bidding Document

Section 3.8.1: the set of bidding documents comprises the

documents listed below and corrigenda/addenda issued:-

       Section       Particulars
       Section 2     Notice Inviting Tender (NIT)
       Section 3     Instructions to Bidders (ITB) & Bid Date Sheet (BDS)
       Section 4     Qualification Information
       Section 5     Conditions of Contract
       Section 6     Contract Data
       Section 7     Schedule-A : Project Location

Schedule-B : Detailed Scope and Specifications Schedule-C : Environmental & Social Impact Assessment Compliance Schedule-D : Project Milestone Schedule-E : Drawings Schedule-F : Indicative Bill of Quantities Section 8 Contract Forms

Section-8 contains the Contract forms. It contains as many as

19 Appendix (Forms). These include from details of bidder to Bid

submission forms financial Bid/Price schedule to Power of Attorney and

so forth for completion certificate. The document which has resulted in

the rejection of the bid of the petitioners i.e., Appendix-3 is also included

in the same, it reads as under:-

Appendix-3 is Financial Bid/Price Schedule

To be filled ONLINE only; this is only a TEMPLATE)

Sl. Particulars of work Qty Rate Estimated cost. Bidder‟s Quoted No. (INR ₹)(inclusive Price (inclusive of of all taxes) all taxes) 1 Engineering, Procurement and 1 3111.57 Lakh Construction Contract for junction Improvements (23) Total (Round off)

Total Amount = Rs. ___________ Total Amount = (in words)

Note:

1. If there is a discrepancy between the figures and words, the price quoted in words shall prevail.

2. This format is to be filled online only. Any hard copy submission of the Financial Bid shall lead to the rejection of the Bid.

3. Bidder has to quote the price inclusive of all taxes.

4. GST shall not be paid extra.

Signature of Authorized Representative

Name & Designation Name of Bidder:

Business Address Date:

Seal of the Bidder

18. The question which arises for consideration is whether

Appendix-3 as per the RFP was part of the technical bid as stated by the

petitioner, and whether the rejection of technical bid of the petitioner as

non-responsive on the ground that he had submitted the financial cost of

the bid in hard copy in Appexdix-3 and the same was in violation of Point

No. 2 of Note in Appendix-3 was justified.

19. Part-C of Section-3 of the RFP contains the documents

comprising the bids and reads ad under:-

C. PREPARATION OF BIDS

3.12 Documents comprising the Bid

Clause:3.12.1 The bid to be submitted by the bidder online (refer clause 3.8.2 of ITB) shall be in two separate parts:-

Part One: Technical Part

The Technical part shall contain the following documents, the scanned copies thereof shall be uploaded on the portal:-

1. Bid security declaration on notarized affidavit

2. Proof of Bid document Fee paid

3. Details of Bidder

4. Contractor‟s Letter for Bidding

5. Power of Attorney

6. Format for Evidence of access to or Availability of Credit facility

7. Affidavit regarding Abandoned Works and Undertaking

8. Declaration regarding Blacklisting/Debarring

9. Financial standing of the Bidder

10. Audited and Certified balance sheets of bidder for the latest 3 financial years

11. Experience in works of similar nature and size during last five years

12. Existing Commitments and ongoing works

13. Copies of GST registration certificate/Permanent Account Number (PAN) from Income Tax Department. All the pages of the submitted bid should be stamped and signed by the bidder/his authorized representative.

14. Bids submitted online must be legible, failing which the bid evaluation committee may consider the bid as non-responsive.

Part Two: Financial Part

(i) The Financial part shall be filled properly in "The letter for Financial Bid" and shall be submitted online only.

(ii) Rates shall be quoted in figures as well as in words. If any difference is found in figures and words, the rate in words shall be taken as valid and correct.

(iii) All the pages of the submitted bid should be stamped and signed by the bidder/his authorized representative.

(iv) Bid sent by e-mail or fax etc. shall not be considered.

20. Part-I contains the Technical Part and Part-II contains the

financial part. A bare perusal of Appendix-3 clearly reflects heading

Financial Bid/Price Sheet to be filled online this is only a template,

therefore, Appendix-III is clearly a part of the financial bid and could not

have been submitted with technical bid. Note 2 of this template clearly

states that this format is to be filled online only and any hard copy

submission of it would lead to the rejection of the bid, therefore, the

contention of the petitioner that Appendix-3 appearing at Page-438 of the

RFP format as part of the technical bid which was rightly uploaded is

misconceived and without any basis, as such, the same is, accordingly,

rejected.

21. The bid of the petitioner was, thus, declared non-responsive

by the Technical Evaluation Committee which examined the bids and

determined their responsiveness, the bid of the parties were denied for

their responsive in terms of Clause 3.25.2 of RFP:

As per Clause 3.25.2-A responsive bid is one which conforms to all the terms, conditions, and requirement of the bidding documents, without material deviation or reservation. A material deviation or reservation is one.

a) which affects in any way the scope, quality, or performance of the works;

b) which limits in any way, inconsistent with the bidding documents, the employer‟s rights or the Bidder‟s obligations under the Contract; or

c) whose implementation would affect unfairly the competitive position of other Bidders presenting responsive bids.

22. The bid of the petitioner was inconsistent with the bidding

document and since it failed to fulfill all the conditions and requirements

of the bidding document. Therefore, the Technical Evaluation Committee

rightly rejected the bid of the petitioner. This brings us to the next

question whether the reasons assigned for rejection of the bid by the

respondents vide letter dated 19.07.2021 were justified, i.e., the petitioner

had submitted the financial cost of the bid in Appendix-3 on Page-438 of

RFP and the same was considered in violation of Point No. 2 of Note-2 of

Appendix-3 which states, "this format is to be filled online. Any hardcopy

submission of the financial shall lead to the rejection of the bid".

23. The official respondents in their objections have submitted

that the petitioner had uploaded the templates disclosing his bid price i.e.,

Appendix-III which was a document of technical part as there was no

provision of uploading Appendix-III in the technical part of the bid and it

was to be uploaded separately in the financial bid, therefore, the document

in the technical part became a hard copy as the bidder has disclosed his

quoted bid price in the technical bid.

24. Mr. Beotra, on the other hand, while supporting the

arguments of Mr. Gupta and Mr. Raina, submitted that the petitioner had

used a template and disclosed his financial bid in the technical bid but by

filling the same by a pen and, thereafter uploading the same whereas this

documents was to be filled and uploaded online only, as such, the

document became a hard copy and was entitled to be rejected.

25. The technical bid of the petitioner was rejected as non

responsive as per the terms and conditions of the RFP. The petitioner had

in contravention to the provisions of RFP submitted his technical bid. The

reasons for rejection given in communication reads as under:

"In this context you are informed that you has been found

non-responsive on account of the fact that you have submitted the

financial cost of the bid in hard copy in Appexdix-3 on page No.

438 of RFB. Though the expression used is „hard copy‟ which may

not be as is used in common parlance i.e., the information from

computer which is printed on paper. However, in the present case,

the fact remains that the petitioner had filled Appendix-3 with a pen

and then uploaded the same with technical bid instead of submitting

the same with financial bid and as the same was not in accordance

with prescribed manner of submitting the bid, therefore, the

respondents rejected the petitioner‟s bid as non-responsive.

There being no doubt of the non-responsive of the bid as the

petitioner had not submitted his bid as per RFP, therefore, it was for the

authority to interpret the same, which may differ from the common

perception but it does not change the fact that the bid was non-responsive.

It is settled proposition of law that the authority which authors the tender

document is the best person to understand and appreciate its requirement

and thus, its interpretation should not be second guessed by Court in

judicial review proceedings as has been held in 2020 (14) Scale 349;

Galaxy Transport Agencies, Contractors, Traders, Transports and

Suppliers vs. M/s New J. J. Roadways, Fleet Owners and Transport

Contractors and others.

14. In a series of judgments, this Court has held that the authority that authors the tender document is the best person to understand and appreciate its requirement, and thus, its interpretation should not be second-guessed by a Court in judicial review proceedings. In Afcons Infrastructure Ltd vs Nagpur Metro Rail Corporation Ltd. 2016(16) SCC 818, the Apex Court has held as under:-

"....15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the

tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given."

26. This apart, the J&K Public Works Engineering Manual, 2020

is instructions to Bidder in document comprising the BID in the Note

states as under:-

"Disclosure of financial bid in technical bid part-1 shall render the biding non-responsive."

Therefore, the bid of the petitioner was non-responsive on

this ground also and accordingly, rejected.

27. It was also submitted that there was ambiguity in Appendix-3

and the format provided in the financial bid, therefore, the petitioner

quoted the same in both the bids. This argument too is without any merit.

Since RFP clearly states the documents which were to be scanned, or

uploaded, and to be filled. In case any clarification was required, the

petitioner could have approached the respondents as per Clause 3.09

which provides clarification on Bidding Documents and Pre-Bid Meeting.

The petitioner was required to be careful in submitting his bid.

28. The tender evaluating committee had rejected the bids on the

ground that they are not in strict compliance of the requirement of the

tender document after determining the substantial responsiveness of the

bid on the basis of bidding document rejected the same and the same

cannot be negated by the Court substituting by its own opinion in these

proceedings.

29. It is settled proposition that the commercial transactions

require expertise and the experts after considering all the material and the

terms and conditions of RFP have rejected the bid of the petitioner and

this Court in exercise power of judicial review cannot substitute its view

over their view, more so when the award of contract is in public interest.

30. Lastly, it was argued that the petitioner has quoted an amount

of Rs.29,74,66,091/- i.e., Rs. 22,33,909/- lesser than the bid of respondent

No. 6, therefore, it is in the interest of public, that the financial bid should

be opened and he should be allotted the contract.

31. While considering a similar case, in W. B. Electricity Board

vs. Patel Engineering Co. Ltd. & Ors. 2001 AIR SC 68, the Hon‟ble

Apex Court has held as under:

"....The submission that remains to be considered is that as the price bid of respondent Nos.1 to 4 is lesser by 40 crores and 80 crores than that of respondent Nos.11 and 10 respectively, public interest demands that the bid of respondent Nos.1 to 4 should be considered. The project undertaken by the appellant is undoubtedly for the benefit of public. The mode of execution of the work of the project should also ensure that the public interest is best served. Tenders are invited on the basis of competitive bidding for execution of the work of the project as it serves dual purposes. On the one hand it offers a fair opportunity to all those who are interested in competing for the contract relating to execution of the work and on the other hand it affords the appellant a choice to select the best of the competitors on competitive price without prejudice to the quality of the work. Above all it eliminates favouritism and discrimination in awarding public works to contractors. The contract is, therefore, awarded normally to the

lowest tenderer which is in public interest. The principle of awarding contract to the lowest tenderer applies when all things are equal. It is equally in public interest to adhere to the rules and conditions subject to which bids are invited. Merely because a bid is the lowest the requirements of compliance of rules and conditions cannot be ignored. It is obvious that the bid of respondent Nos.1 to 4 is the lowest of bids offered. As the bid documents of respondent Nos.1 to 4 stands without correction there will be inherent inconsistency between the particulars given in the annexure and the total bid amount, it cannot be directed to be considered along with other bid on the sole ground of being the lowest."

32. In view of the aforesaid discussion, there is no merit in this

writ petition, which is, accordingly, dismissed alongwith connected

application(s).

(Sindhu Sharma) Judge JAMMU 10th .12.2021 MICHAL Whether the judgment/order is speaking : Yes Whether the judgment/order is reportable : Yes

RAM MURTI 2021.12.15 18:24 I attest to the accuracy and integrity of this document