Manipur High Court
M/S Ta-Amarjeet Transport Agency ... vs The Indian Oil Corporation ... on 17 December, 2021
SHOUGRA Digitally
by
signed
[1]
KPAM SHOUGRAKPAM
DEVANANDA
DEVANAN SINGH
Date: 2021.12.17
DA SINGH 09:11:48 Z IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP(C) No.745 of 2018
M/S TA-AMARJEET TRANSPORT AGENCY (TAATA)
having its registered office at Kakwa Lamdaibung, P.O.&
P.S. Singjamei, Imphal East District, Imphal 795008
represented by its Proprietor namely Mr. Amarjeet Singh
Yumnam, aged about 27 years old, S/O Yumnam Samungou
Singh of Kakwa Lamdaibung, P.O.& P.S. Singjamei, Imphal
East District, Imphal 795008, Manipur.
... Petitioner
-Versus-
1. The Indian Oil Corporation Limited (IOC) through the Chief
General Manager, (LPG-O), Indian Oil AOD State Office,
Sector-III, Noonmati, Guwahati- 20, Assam.
2. The Deputy General Manager, (LPG), Indian Oil AOD
State Office, Sector-III, Noonmati, Guwahati- 20, Assam.
3. The State Level Co-coordinator, Indian Oil Corporation
Limited, AOD, B.T. Road, Imphal P.O.& P.S. Imphal,
Imphal -795001, Manipur.
4. Shri Elam Robindro Singh, aged about 50 years, S/o (L) E.
Jugindro Singh of Laipham Khunou Maning Leikai, P.O.
Lamlong, P.S. Heingang, Imphal East District, Manipur,
Pin No. 795101.
5. Koijam Jiten Singh, aged about 47 years, S/o (L) Koijam
Babuchouba Singh of Keishamthong Elangbam Leikai, PO
& PS Imphal, Imphal West District, Manipur, Pin No.
795001.
6. Loitongbam Herojit, aged about 35 years, S/o L.
Nipamacha Singh of Meitram Makha Leikai, PO Tulihal,
PS Nambol, Imphal West District, Manipur, Pin No.
795140.
7. Loitongbam Premkumar Singh aged about years, S/o L.
Ibomacha Singh of Meitram Makha Leikai, PO Tulihal, PS
Nambol, Imphal West District, Manipur, Pin No. 795140.
8. Leishangthem Robindro Singh, aged about 57 years, S/o
(L) L. Khomdonbi Singh of Singjamei Mayengbam Leikai,
WP(C) Nos. 745 of 2018 & 114 of 2021 Contd.../-
[2]
PO & PS Singjamei, Imphal West District, Manipur, Pin No.
795008.
9. Mangshatabam Subita Devi, aged about 41 years, D/o M.
Babuchand Meitei of Keishamthong Elangbam Leikai, PO
& PS Imphal, Imphal West District, Manipur, Pin No.
795001.
10. Chanamba Amuba Meitei, aged about 34 years, S/o Ch.
Kalachand Singh of Thangmeiband Lairenhanjaba Leikai,
PO & PS Imphal, Imphal West District, Manipur, Pin No.
795001.
11. M/s Lukram Enterprises, through its Proprietor, Lukram
Sanjeet Singh, aged about 31 years, S/o L. Nabakishwar
Singh of Takyel Road, Tera Loukrapam Leikai, PO Imphal,
PS Lamphel, Imphal West District, Manipur, Pin No.
795001.
12. Nongmeikapam Naba Singh, aged about 65 years, S/o (L)
N. Kunje Singh of Nagamapal Kangjabi Leirak, French
Colony, P.O. Imphal, P.S. Lamphel, Imphal West District,
Manipur, Pin No. 795001.
13. M/s Sarita Enterprises, represented by its Proprietor
Yumnam Sarita Devi, aged about 30 years, W/o Ngaithem
Banin Meitei of Yumnam Leikai, Lairembi Maning, PO &
PS Imphal, Imphal West District, Manipur, Pin No. 795009.
14. Thounaojam Roben Singh, aged about 43 years, S/o (L)
Th. Indra Singh of Wangoi Thounaojam Leikai, PO & PS
Wangoi, Imphal West District, Manipur, Pin No. 795009.
15. M/s Uripok Energy Station, through its Proprietor, Ranjeeta
Yendrembam, aged about 40 years, W/o T. Basanta
Meetei of Khabam Lamkhai, P.O. Mantripukhri, P.S.
Heingang, Imphal East District, Manipur, Pin No. 795002.
16. M/s Yumnam Oil Service Kisan Seva Kendra, represented
by its Proprietor Yumnam Romen Singh, aged about 46
years, S/o (L) Y. Achou Singh of Wabagai Lamkhai Bazar,
PO & PS Kakching, Kakching District, Pin No. 795103.
17. M/s Yumnam Romabati Kisan Seva Kendra-1, represented
by its Proprietor Yumnam Romabati, aged about 41 years,
W/o Y. Surchandra Singh of Singjamei Chingamathak Fura
Makhong Liwa Lambi, PO & PS Singjamei, Imphal West
District, Manipur, Pin No. -795008.
WP(C) Nos. 745 of 2018 & 114 of 2021 Contd.../-
[3]
18. Rajen Chhetri, aged about 35 years, S/o Dilliram Chhetri of
Charajare, P.O. Motbung, PS Kangpokpi, Kangpokpi
District, Manipur, Pin No. 795107.
19. Sarungbam Inaomacha Singh, aged about 57 years, S/o
(L.) S. Chaomacha Singh of Chingamathak Nameirakpam
Leikai, PO Imphal, PS Singjamei, Imphal West District,
Manipur, Pin No. 795001.
20. Thounaojam Jiten Singh, aged about 38 years old, S/o Th.
Nilamani Devi Lilong Chajing, P.O. Lilong P.S. Singjamei,
Imphal West District, Manipur 795130.
21. Thounaojam Kamala Devi, aged about 32 years old, W/o
Th. Jiten Singh, Lilong Chajing, P.O. Lilong P.S.
Singjamei, Imphal West District, Manipur 795130
---Vide Hon'ble Court's order dated 20.08.2018 passed
in MC(WP(C)) No. 226 of 2018, the above named
respondents are impleaded...
22. Smt. N. Dhanapati Devi, aged about 47 years, Proprietor
of M/S N. Dhanapati Devi Transport, Thoubal
Wangmataba, Thoubal District, Manipur, P.O. & P.S.
Thoubal, Thoubal District, Manipur - 795138.
23. Khundongbam Ibetombi Devi, aged about 70 years. W/o
Yumlembam Brajabidhu Singh of Palace Compound, P.O.
Imphal, P.S. Porompat, Imphal East District, Manipur -
795001.
--- vide Hon'ble Court's order dt. 20.01.2021 passed in
WP (c) No. 745/2018 with MC(WP(C) No. 10 of 2021, the
above respondent is impleaded as Respondent No. 23.
... Respondents
WITH
WP(C) No.114 of 2021
M/S TA-AMARJEET TRANSPORT AGENCY (TAATA)
having its registered office at Kakwa Lamdaibung, P.O.&
P.S. Singjamei, Imphal East District, Imphal 795008
represented by its Proprietor namely Mr. Amarjeet Singh
Yumnam, aged about 30 years old, S/O Yumnam Samungou
WP(C) Nos. 745 of 2018 & 114 of 2021 Contd.../-
[4]
Singh of Kakwa Lamdaibung, P.O.& P.S. Singjamei, Imphal
East District, Imphal 795008, Manipur.
... Petitioner
-Versus-
1. The Indian Oil Corporation Limited (IOC) through the Chief
General Manager, (LPG-O), Indian Oil AOD State Office,
Sector-III, Noonmati, Guwahati- 20, Assam.
2. The Deputy General Manager, (LPG), Indian Oil AOD
State Office, Sector-III, Noonmati, Guwahati- 20, Assam.
3. The State Level Co-coordinator, Indian Oil Corporation
Limited, AOD, B.T. Road, Imphal P.O.& P.S. Imphal,
Imphal -795001, Manipur.
4. Smt. N. Dhanapati Devi, aged about 47 year old,
Proprietor of M/S N. Dhanapati Devi Transport, Thoubal
Wangmataba, Thoubal District, Manipur, P.O. & P.S.
Thoubal, Thoubal District, Manipur - 795138.
...Respondents
B E F O R E
HON'BLE MR. JUSTICE KH. NOBIN SINGH
For the petitioner ∷ Shri H.S. Paonam, Sr. Advocate
For the respondents ∷ Shri N. Ibotombi, Sr. Advocate;
Shri Th. Ibohal, Sr. Advocate;
Shri L. Shashibhushan, Advocate
Date of Hearing ∷ 29-11-2021
Date of Judgment & Order ∷ 17-12-2021
JUDGMENT AND ORDER
[1] Heard Shri H.S. Paonam, learned Senior Advocate appearing for
the petitioners; Shri N. Ibotombi, learned Senior Advocate and Shri Th.
Ibohal, learned Senior Advocate appearing for the respondent Nos.22 &
23 and Shri L. Shashibhushan, learned Advocate appearing for the IOC
Limited.
WP(C) Nos. 745 of 2018 & 114 of 2021 Contd.../-
[5]
[2] Since both the writ petitions have arisen out of a similar set of
facts, the same are being disposed of by this common judgment and
order.
WP(C) No.745 of 2018
[3.1] By the instant writ petition, the petitioner has prayed for issuing
a writ of mandamus or any other appropriate writ or direction to the
respondents for considering its case for appointment as contractor for
bulk supply of LPG by road transportation for the State of Manipur and
also for issuing a letter of intent accepting L-1 rate in view of the fact that
the bidder who is L16, has been offered, while the same has been denied
to it, although it being the L3.
[3.2] The respondent, IOC Limited issued a notice inviting e-tender in
respect of four items of two categories being 12 MT Category of Bulk
LPG TTs (Hilly); 12 MT category of Bulk LPG TTs (Plain); 7 MT category
of Bulk LPG TTs (Hilly) and 7 MT category of Bulk LPG TTs (Plain) with
identified lower band and high band for appointment of transporter/
contractor for bulk supply of LPG by road transportation for the State of
Manipur. The petitioner who was eligible and qualified for participating in
the e-tender, submitted its bid online in the prescribed form on
19-04-2018. 0n 04-07-2018, the petitioner was informed that its bid was
technically qualified and accepted by the Tender Committee. When the
financial bids were opened on 27-07-2018, the petitioner was declared as
financially accepted and as per the final result thereof, the petitioner was
declared to be L3.
WP(C) Nos. 745 of 2018 & 114 of 2021 Contd.../-
[6]
[3.3] Thereafter, the petitioner found that the bidder who is ranked as
L16, was offered by the IOC Limited for acceptance of his bid at L1 rate
which is given as under:
For 12MT TT FOR 7MT TT
Plain Hill Plain Hill
(Rs/MT/RTKM) (Rs/MT/RTKM) (Rs/MT/RTKM) (Rs/MT/RTKM)
Within Outside Within Outside Within Outside Within Outside
State state State state State state State state
6.0735 6.0735 6.9867 6.9867 7.5462 7.5462 9.3908 9.3908
The petitioner being L3, was not offered at all, although it ought
to have given priority and such attitude of the IOC Limited had infringed
the petitioner's fundamental right of freedom of trade and commerce. In
other words, the non-issuance of an offer letter in favour of the petitioner
was violative of the right to equality.
[4.1] An affidavit-in-opposition was filed on behalf of the respondent
Nos.1 to 3 stating that a bidder was to quote rates in respect of eight
items/ sectors, if he/ she/ it was offering TTs in two categories viz. 7 MT
and 12 MT and four items/ sectors, if he/ she/ it was offering in just one
category. In pursuance of the e-NIT, the petitioner who submitted its bid
in respect of two categories i.e. 7 MT and 12 MT, was found technically
qualified but in its price bid, the petitioner did not quote rate against four
mandatory items/ sectors. In other words, the petitioner, though quoted
rates for both 12 MT and 7 MT category of bulk TTs, did not quote rate
against four items/ sectors in the price bid out the total of eight items/
sectors. Hence, as per Clause 5 of the NIT read with point No.3
mentioned in the format for the price bid, its price bid was found not
WP(C) Nos. 745 of 2018 & 114 of 2021 Contd.../-
[7]
qualified during evaluation and it was, accordingly, rejected. The bidders
were also to quote rate for loading source outside the State and also for
source within the State for both plain and hill sector. Although, in normal
situation, the bulk loading is done from loading source in Assam like
Guwahati Refinery, North Guwahati Bottling Plant etc, the provision of
rate is kept for loading from Sekmai Bottling Plant for emergency
requirement of some other bottling plant and also by taking into account
plants to be commissioned during the tenure of the contract in the same
State as stated in the NIT.
[4.2] The document, annexed as Annexure-A/5 to the petition, was
an auto-generated report from the system which indicates disqualification
of only technically disqualified bidders and whose price bid was not
considered for evaluation. As the petitioner was qualified in the technical
bid, its price bid in respect of two categories of TTs viz. 7 MT and 12 MT
was opened and accepted for further evaluation. This did not qualify it for
award of contract as the same was to be done only after the total
evaluation of the tender. The total TTs offered in the tender by the
bidders was much higher than the TTs mentioned in the NIT and hence,
many of the bidders whose price bids were accepted for evaluation, were
not included within the required numbers of TTs as per the NIT. The price
bid of the petitioner was also accepted for further evaluation. However,
during evaluation of its price bid, it was found that the petitioner had
submitted incomplete price bid in as much as it had failed to quote rates
in respect of four items/ sectors viz. (a) rates for loading source within the
WP(C) Nos. 745 of 2018 & 114 of 2021 Contd.../-
[8]
State in respect of 12 MT TTs both for Hills and Plain and (b) rates for
loading source within the State in respect of 7 MT TTs both for Hills and
Plain and hence, it was liable for rejection as per the terms of the tender.
[5] It has been stated by the petitioner in its rejoinder that its bid
was declared to be technically and financially accepted and finally, the bid
rank of the petitioner was given as L3. In such circumstances, the stand
of the IOC that the bid of the petitioner was liable to be rejected and
found to be not qualified at post evaluation of the already finalized tender
process which is impermissible in the eyes of law and hence, such a
stand which is conflicting and contrary, might not be encouraged in terms
of the law laid down by the Apex Court in a catena of decisions. It has
been reiterated that since the transporters who are ranked below the
petitioner, were offered for accepting L1 rates for executing the
transportation work, the petitioner was also entitled to for such offer as
the IOC Limited is a public corporation being bound by the principle of
right to equality. Further, the contention that the petitioner had quoted
rate against four sectors out of the eight sectors which is irregular/
impermissible, was false as the computer system had not rejected the
submission of bid as defective and it was notified to have completed the
submission, otherwise the incomplete filling up of the fills are always
notified with prompt notification such as "Please Enter the Basic for at
least one item in the Sheet BOQ1.
[6] The stand taken by the respondent No.22 is similar to that of
the IOC Limited, because of which the same is not repeated here for the
WP(C) Nos. 745 of 2018 & 114 of 2021 Contd.../-
[9]
sake of brevity. However, it has been stated by the respondent No.22 in
her affidavit that the petitioner participated in the tender and its bid was
accepted for evaluation. By accepting its bid, the petitioner could not
claim for getting the offer of L-1 rate for acceptance of its bid. The tender
was to be evaluated as per the pre-disclosed parameter of evaluation
criteria in the tender and the offer of L-1 rate to other qualified bidders for
acceptance was a part of the process of evaluation. The petitioner was
not asked to match L-1 rate as its price bid was incomplete as stated
hereinabove and could not fulfill the qualifying criteria under point No.3 of
the price bid as well as the terms and conditions of the NIT and as such,
no interim order was called for from the end of this Court.
[7.1] In their additional affidavit, it has been stated by the respondent
No.1 to 4 that a secured and user friendly e-tendering system is
developed through the National Informatics Center (NIC) for e-tendering
of different types of contract works under the respondent No.1. All the e-
tendering of the respondent No.1 are published on the website
https://ioctenders.nic.in. and any bidder can search, view, download and
submit bids online in a secured and transparent manner. For general
information about the e-NIT, a notice is published in the Newspapers and
before doing that, the tender is created in the system for generation of a
Unique Tender ID which is 2018 NEISO 69155.
[7.2] The following are the procedure being followed in the
finalization and award of the contract in respect of the aforesaid e-tender
for transportation of bulk LPG from outside the State of Manipur to the
WP(C) Nos. 745 of 2018 & 114 of 2021 Contd.../-
[10]
bottling plant at Sekmai after the bids being submitted by the bidders:
i) After the technical bid is opened, the same is decrypted in the
portal on the due date and time stipulated in the tender by a two
member committee.
ii) After completion of opening process, the bid opening committee
completes the following process:
a. Upload "Bid Opening Summary" as per standard format.
b. Assign the names of the Technical & Finance Evaluators
in the portal.
Since the bid opening details can be viewed by all the
bidders online, no physical presence of the bidders is necessary.
iii) The bids are then evaluated by Tender Consideration
Committee. After evaluation, technical / commercial queries,
if any, the individual bidders are parked in the system
specifying a reasonable time frame for receipt of replies for
further evaluation of the bids. After receipt of suitable reply
from the bidders, final evaluation is carried out by the
Techno commercial evaluators. Technical evaluator and
financial evaluators completes the Techno-commercial
evolution in the portal where reasons are recorded by the
evaluators for disqualification of the bidder(s), if any, based
on offline approval received from competent authority.
Subsequently, after obtaining price bid opening approval
from competent authority, the Tender Consideration
Committee concludes the techno-commercial evaluation
including uploading of Techno-Commercial Evaluation
Summary as per standard format and scheduling price bid
opening date and time.
iv) On completion of techno-commercial evaluation, an auto
email alert is generated to all the bidders. Therefore, no
separate communication is required to be sent at this stage.
As per the current system requirements, a minimum time
WP(C) Nos. 745 of 2018 & 114 of 2021 Contd.../-
[11]
period of 24 hours is required between completion of
Techno Commercial Evaluation and scheduled Price Bid
opening date & time.
v) The price bids of the technically qualified bidders are then
decrypted in the system. After decryption, "Price Bid
Opening Summary" as per standard format is uploaded in
the portal along with BOQ Chart generated automatically in
the portal. Since the Price quoted by the bidders are made
available in the system, no physical presence of the bidders
is necessary.
vi) Scrutiny & Financial evaluation is then carried out by the
tender Consideration Committee and bids are ranked as L-1,
L-2, 1-3 etc. based on the financial outgo for the tender.
However, negotiations at times are carried out with only with
L-1 rate to cover the required number of bidders as per
Tender requirement.
vii) Approval is obtained from the competent authority for
awarding Letter of Intent (LOI) to the required number of
qualified bidders after conclusion of the tender.
viii) Finally, details of award of Contract are to be uploaded as
per Standard format and thereafter the entire tender process
is concluded.
In the instant case, after the Techno Commercial Evaluation,
the list of technically qualified bidders was upload in the web portal of the
respondent No.1 and thereafter, the price bids of the technically qualified
bidders were then decrypted in the system. After decryption, "Price Bid
Opening Summary" as per standard format was uploaded in the portal
along with BOQ Chart generated automatically in the portal. The
aforesaid procedure was done prior to Scrutiny & financial evaluation of
WP(C) Nos. 745 of 2018 & 114 of 2021 Contd.../-
[12]
the bids as per the parameters laid down in the tender by the Tender
Consideration Committee. The petitioner did not submit the price bid as
per requirement for which its bid was disqualified. It did not quote rate
against four mandatory parameters in the price bid. The price bid of the
tender was a single page document where it was mentioned in bold and
red letter under point No.3 of the price schedule that "bidder has to quote
in each line item (including special sector) for a particular category of bulk
TT. In case the bidder not quoting for one / more sector for the chosen
category/ categories, then their bid will be rejected. The petitioner, though
it quoted rates for both the 12 MT and 7 MT category of bulk TTs, did not
quote rate against four items in the price bid out the total of eight items.
Hence, as per the clause of price bid under point No.3 mentioned above,
its price bid was found not qualified during evaluation.
WP(C) No.114 of 2021
[8] In WP(C) No.745 of 2018, this Court passed an interim order
dated 28-08-2019 directing that two 7MT & one 12MT Bullet Trucks be
kept reserved and in spite of that, according to the petitioner, the
respondent, IOC Limited had chosen to issue the work order dated 08-01-
2021 allotting two 7MTs to the private respondent which is under
challenge in this writ petition.
[9.1] The petitioner being aggrieved by non-allotment of
transportation work despite being declared as L3, approached this Court
by way of writ petition being WP(C) No.745 of 2018 for a direction to the
WP(C) Nos. 745 of 2018 & 114 of 2021 Contd.../-
[13]
respondents for considering its case for appointment as contractor for
bulk supply of LPG by road transportation for the State of Manipur. On
10-8-2018, this Court passed an interim order not to finalize the tender
process in respect of the said NIT. Further, on 28-8-2018, this Court
modified the said interim order to the extent that the IOC Limited might
continue with the process of tender and that three TTs should be kept
unfilled until further orders.
[9.2] According to the petitioner, despite the existence of the
interim order dated 28-8-2018 being passed in WP(C) No.745 of 2018
and during the pendency thereof as part heard, the respondent, IOC
Limited issued a letter of intent dated 22-12-2020, followed by a work
order dated 08-01-2021 in respect of two 7MTs which were being issued
in a complete arbitrary exercise of power and in violation of the order
passed by this Court and were liable to be quashed and set aside for the
ends of justice. The impugned orders had the effect of circumventing the
order passed by this Court which were against constitutional mandate
and therefore, this Court might be pleased to quash and set aside them
for the ends of justice. They were issued in complete arbitrary exercise of
power thereby warranting immediate interference by this Court for the
ends of justice and for protecting the right and interest of the petitioner.
Since the impugned orders were issued in violation of the order passed
by this Court, the same would cause an irreparable lose to the petitioner
as it would render WP(C) No.745 of 2018 infructuous.
WP(C) Nos. 745 of 2018 & 114 of 2021 Contd.../-
[14]
[10.1] In the affidavit of the respondent No.1 to 3, it has been stated
that two 7 MT & one 12 MT Bullet Trucks were still being kept reserved
as per the direction of this Court and the issue of work order to the private
respondents was out of the 58 additional TTs requirement besides the
230 Nos. of 7MT TTs stipulated in the NIT and as such, the averment that
the work order issued to the private respondent was against the interim
order of this Court and that the same be quashed for protecting the right
and interest of the present petitioner and for the ends of justice was
incorrect and hence, denied. It has further been stated that they had kept
and would continue keeping two 7 MT TTs and one 12 MT TT unfilled in
compliance with the order dated 24-08-2018 passed in MC (WP(C))
No.228 of 2018 till the disposal of WP(C) No.745 of 2018 and as such, no
infraction of the said order was committed by them.
[10.2] It has been admitted by the respondent No.22 in her affidavit
that the respondent, IOC Limited issued the work order dated 08-01 2021
allotting three 7 MTs to her. But it has been denied by her that the said
work order dated 08-01-2021 was issued to her against the interim order
passed by this Court. The allotment of three 7 MTs was not covered by
the interim order because these three 7 MTs were newly inducted trucks.
During the pendency of the writ petition being WP(C) No.745 of 2018, the
respondent, IOC Limited sent a letter of intent dated 22-12-2020 requiring
her to keep three tank trucks, having 7 MT capacity, ready namely, (i)
MN04P0418; (ii) MN04P0420 and (iii) MN04P0421 for utilization by the
IOC Limited after physical verification at their bottling plants within 30
WP(C) Nos. 745 of 2018 & 114 of 2021 Contd.../-
[15]
days therefrom. It was responded and complied with by her within
mandatory requirement and started the work with immediate effect after
the provisional work order dated 08.01.2021 for Additional TT(s) being
issued subject to the conditions mentioned therein. But in its rejoinder, it
has been stated by the petitioner that while allotting the additional 58 TTs,
the IOC Limited, respondent failed to notify about it to all concerned
which was against the established principle of law.
[11] The subject matter in issue relates to the question as to
whether, having regard to the fact that the petitioner's bid was declared to
be L3, the rejection of its bid by the respondent, IOC Limited during
evaluation on the ground that the petitioner failed to quote rates in
respect of all items, was legally valid or not ?
[12.1] It has been submitted by Shri H.S Paonam, Senior Advocate
appearing for the petitioner that in view of Clause 2 & 3 of the Price
Schedule, a bidder can quote in only one category and also in only one
sector in a particular category and therefore, the petitioner had quoted
only for the loading sources outside the State items/ sector in respect of
the four categories. The stand of the IOC Limited that quoting of all items
of the two categories is mandatory in view of the terms and condition as
laid down therein, was not correct. It has further been submitted that
since the petitioner was technically qualified and financially accepted and
it being declared as L3, the requirement of their further evaluation
seemed to be quite against the established norms. The question of re-
WP(C) Nos. 745 of 2018 & 114 of 2021 Contd.../-
[16]
evaluation of the already finalized tender was for bringing contradiction to
their own decision which is impermissible in the eyes of law. The
petitioner was entitled to be considered for award of contract, when the
IOC Limited had chosen the contractor who was declared to be L16 for
the award of the contract for bulk transportation of LPG. In support of his
contention, he has relied upon the decisions endered by the Hon'ble
Supreme Court in Vidarbha Irrgation Development Corporatio Ltd Vs.
Anoj Kumar Garwala, 2019 SCC Online 89; Chief Information
Commissioner Vs. The State of Manipur, (2011) 15 SCC 1; Naseem
Bano (Smt) Vs. the State of UP, 1993 Supp(4) SCC 46 and Suzuki
Parasrampuria Suitings Private Ltd, (2018) 10 SCC 707.
[12.2] Combating the above submissions, it has been submitted by
Shri L. Shashibhusan, learned Advocate that the language of the clauses
in the price bid format being clear and unambiguous, a bidder has to
quote rates for each of the items/ sector for the category for which he/she
has applied for and that non-filing/ quoting of the rate or rates for the
items/ sector for the particular category or categories will entail the
rejection of the tender. The documents filed by the petitioners as
annexure-A/5 and 6 are auto generated report from the system prior to
evaluation in terms of Clause 5 of the NIT. The acceptance of a bidder
price does not mean that his price has been found qualified in as much as
scrutiny and evaluation has to be based on the parameters given in
Clause 5 of the NIT and the actual ranking of the bidders is done only
after manual evaluation of the bids in terms thereof. The petitioner did not
WP(C) Nos. 745 of 2018 & 114 of 2021 Contd.../-
[17]
quote rates for four items/ sectors out of eight items/ sectors which it was
obliged to quote/fill up and therefore, its bid was rejected for which the
petitioner was informed vide letter dated 19-11-2018. Reliance has been
placed on the decisions rendered in (2016) 15 SCC 272; (2017) 4 SCC
170; (2020) 16 SCC 489 and (2007) 14 SCC 517.
[12.3] The submissions of Shri Th. Ibohal Singh and Shri N. Ibotombi,
learned Senior Advocates appearing for the respondent No.22 and 23
respectively are similar to that of Shri L. Shashibhushan and therefore,
the same are not repeated here for the sake of brevity.
[13.1] Admittedly, the NIT was issued by the IOC Limited inviting bids
from bonafide bidders under two-bid system for bulk LPG Transportation
contract by the road for the State of Manipur. The bids were to be
submitted by 12-03-2018, while the technical bids of which were to be
opened on 14-03-2018. The date of opening of price-bid was to be
intimated to the qualified bidders in technical bid. The expected date of
contract was 01-09-2018. Clause-1.VI provides for rates to be quoted
which reads as under:
"Bidders will have to quote their rates in the price bid, only
within the rate band mentioned. Any bidders quoting rates
outside the band, their bids will be summarily rejected. Bidders
found not quoting in any of the item for a particular category of
tank truck in the BOQ will be rejected.
e.g. Bidders need to quote for all the items for a 7 MT
TT or 12 MT TT etc.
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[18]
Floor Price: Lowest rate of the price band.
Ceiling Price: Highest rate of price band."
[13.2] Clause 5 of the bidding documents provides for the criteria of
tender evaluation. Sub-clause 1 to 5 read a under:
" 5- TENDER EVALUATION CRITERIA:
1. This e-Tender is floated in two-bid system i.e. technical bid &
price bid. Technical bid will be first opened on scheduled date
and will be evaluated as per the terms and conditions of the
Tender. Price bids of the bidders, who have qualified in
technical bid based on above evaluation by the Corporation,
will be opened on a notified date.
2. Separate ranking, evaluation and induction will be maintained
for 7MT & 12MT for North Eastern States for IOC and for 12
MT/ 15 MT TTS for HPC/BPC for Jammu & Kashmir. For other
States including North-Eastern States of IOC, separate
evaluation will be made for TTS having capacity 18 MT or less
and TTS having 21 MT capacity or more.
3. For each bidder, if ratio of quoted attached to owned trucks
exceeds 1:1, then the highest model attached trucks will only
be considered and balance old attached trucks will be rejected
to bring the ratio down to 1:1.
4. State Registered TTS would be given preference over other
State registered TTS subject to their quoting bids at floor
rates. This preferential induction of State registered TTS would,
however, be limited to the requirement of particular State for
only those transporters whose bids are received at floor rates.
5. Ranking Procedure: L1, L2, L3 etc. shall be decided on Net
landed cost to IOC/BPC/HPC quoted in the Price Bid and shall
be tabulated in ascending order to determine ranking of each
bidder.
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[19]
a. In case, same rates are quoted by more than one
bidder, then for each rate, such bidders shall be
considered for further ranking (L1/A, L1/B, L1/C etc.) on
the basis of ascending order of average age of the
qualified owned trucks quoted by them in terms of number
of days. For this purpose, the data given by the bidder in
the excel file shall be verified against the documents
uploaded by the bidder to establish the manufacturing
date of each truck. This verified data shall form the basis
for establishing the age of each truck and will be e used
for further ranking. Para 2 under Pre-Qualification Criteria
to be read to arrive at the age of the qualified truck.
b. In case average age of the qualified owned trucks is
same for multiple bidders, then further ranking in
ascending order will be based on the average age of
number of qualified total trucks, i.e. owned and attached
trucks considered together by each such bidders.
c. In case average age of the qualified total trucks is same
then further ranking in ascending order will be based on
total number of trucks quoted by the bidders followed by
total number of own trucks in that order, in case to break
the tie and arrive at ranking of bidders. Such further
ranking based on total number of trucks will be done in
descending order, i.e. the party having more number of
total trucks will rank higher.
d. In case of NIL response/ offers for Proposed trucks
only are received tender then lowest of the price band
shall be offered to the bidders of Proposed trucks followed
by bidders from the cluster of states.
The above ranking of bidders will be utilized for further
Tender evaluation."
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[20]
[13.3] From the perusal of the above clauses, it is evident that the e-
NIT is floated in two-bid system ie., technical bid & price bid. The
technical will be first opened on scheduled date and will be evaluated as
per the terms and conditions of the tender. Price bids of the bidders, who
have qualified in technical bid based on above evaluation by the
Corporation, will be opened on a notified date. Separate ranking,
evaluation and induction will be maintained for 7MT & 12MT. Ranking
namely L1, L2, L3 etc. shall be decided on Net landed cost to IOC/ BPC/
HPC quoted in the Price Bid and shall be tabulated in ascending order to
determine ranking of each bidder. The ranking of bidders will be utilised
for further tender evaluation.
[14] In the instant writ petition, the case of the petitioner is that its
bid was technically qualified and was declared as financially accepted
with the result that the petitioner was declared to be L3. But when the
bidder who is ranked L16, was offered by the IOC Limited for acceptance
of his bid at the L1 rate for 7MT and 12MT, the petitioner being L3, was
not given any such an offer. Such an act of the IOC Limited had infringed
the petitioner's fundamental right of freedom of trade and commerce and
in other words, the non-issuance of such an offer letter in favour of the
petitioner was violative of the right to equality. The contention of the
petitioner that it was technically qualified; its price bid was accepted and
was declared as L3, was not denied by the IOC Limited, the respondent
Nos.1 to 4 but its stand was that when the evaluation was done, the
petitioner was found to have not quoted rates for both 12 MT and 7 MT
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[21]
category of bulk TTs, in the sense that it did not quote rate against four
items/ sectors out of the total eight items/ sectors and therefore, its bid
was rejected being violative of Clause-1.VI of the bidding documents. The
document relied upon by the petitioner, annexed as Annexure-A/5 to the
petition, was an auto-generated report from the system which indicates
disqualification of only technically disqualified bidders and whose price
bid was not considered for evaluation. As the petitioner was qualified in
the technical bid, its price bid was opened and accepted for further
evaluation. This did not qualify the petitioner for award of contract as the
same was to be done only after the total evaluation of the tender.
However, it has been stated by the petitioner in its rejoinder that the stand
of the IOC Limited that the bid of the petitioner was liable to be rejected
during evaluation after the tender process being finalized, was
impermissible in the eyes of law and such a stand being conflicting and
contrary, might not be encouraged in terms of the law laid down by the
Apex Court in a catena of decisions. It has further been reiterated by the
petitioner that since the transporters who are ranked below the petitioner,
were offered for accepting L1 rates for executing the transportation work,
the petitioner was also entitled to for such offer as the IOC Limited is a
public Corporation being bound by the principle of right to equality.
Further, the contention of the IOC Limited that the petitioner had quoted
against four items/ sectors out of the eight items/ sector, was false as the
computer system had not rejected the submission of bid as defective and
it was notified to have completed the submission, otherwise the
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[22]
incomplete filling up of the fills are always notified with such prompt
notification such as "Please Enter the Basic for at least one item in the
Sheet BOQ1.
[15] But the allegation of the respondents that the petitioner did not
quote rate in respect of all eight items/ sectors of 7MT and 12MT, was not
denied by the petitioner and all that the petitioner had submitted, was that
the computer system did not reject the submission of bids by the
petitioner. The fact that the petitioner did not quote rate for all items,
would amount to violation of the provisions as contained in Clause-1.VI of
the bidding documents which specifically provides that all bidders need to
quote for all the items for a 7 MT TT or 12 MT TT. If that be the case,
there was nothing wrong on the part of the respondents, when they
rejected the bid of the petitioner. Another point which the petitioner had
emphasised, was that since the petitioner was declared to be L3, it ought
to have been offered L1 rate for acceptance of its bid because a bidder
declared to be L16 was given the offer of acceptance at L1 rate. In this
regard, it may be noted that Clause 5(5) specifically provides that the
ranking of bidders will be utilized for further Tender evaluation. In other
words, the ranking of bidders is not the only basis on which the contract is
to be awarded to a bidder. The award of contract depends upon the
outcome of further evaluation. Therefore, even though the petitioner was
found to be L3, there was no guarantee that the petitioner should be
awarded the contract without evaluation. In this regard, it may further be
noted that in a tender, the bid submitted by a bidder, is nothing but an
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[23]
offer which may or may not be accepted by the authority depending upon
the terms and conditions as contained in the bidding documents. The only
safeguard available with the bidder is that the authority being an
institution, ought to act fairly and reasonably. The petitioner's bid was
rejected during evaluation, as it did not fulfill the terms and condition
mentioned in the NIT as shown hereinabove. Since the petitioner's bid
having been found unqualified and rejected during evaluation, there is no
point of considering WP(C) No.114 of 2021 on merit and moreover, the
stand of the IOC Limited was that the private respondents were awarded
contract against the additional TTs and that TTs were still being kept
reserved in terms of the interim order passed by this Court. In other
words, the interim order of this Court was not violated at all while
awarding contracts to the private respondents.
[16] In view of the above and for the reasons stated hereinabove,
the instant writ petitions are devoid of any merit and are accordingly
dismissed with no order as to costs.
JUDGE
FR / NFR
Dhakeshori
WP(C) Nos. 745 of 2018 & 114 of 2021 Contd.../-
