Orissa High Court
M/S. Panchasakha Carrier vs Indian Oil Corporation Ltd on 19 October, 2022
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.12446 of 2022
In the matter of an application under Article 226 of the
Constitution of India.
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M/s. Panchasakha Carrier ....... Petitioner
-Versus-
Indian Oil Corporation Ltd.,
New Delhi & others ....... Opp. Parties
For Petitioner: - M/s. Devashis Panda,
S. Panda, A. Mehta &
D.K. Panda
For Opposite parties M/s. P.K. Rath,
S.K. Pattanayak,
A. Behera, S.K. Behera,
P. Nayak, S. Das,
S.B. Rath &
S. Mohapatra
Mr. D. Mohanty,
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P R E S E N T:
JUSTICE BISWAJIT MOHANTY
JUSTICE SAVITRI RATHO
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Date of Hearing: 11.10.2022 Date of Judgment: 19.10.2022
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B. Mohanty, J. This writ application has been filed by the petitioner
praying for quashing of the orders under Annexures-1 & 4/1
reflecting rejections of the petitioner's bid in connection with the
tender for road transportation of bulk petroleum products by
bottom loading tank trucks. Further prayer is to direct the opposite
party No.2 to consider the petitioner's tender on merits as per the
Tender Call Notice and award it the work of transportation of
I.O.C.L's. bulk petroleum products ex-I.O.C.Ls Paradeep Terminal.
2. The present case relates to the Tender Call Notice
issued by the opposite party No.1 under Annexure-2 inviting tender
for road transportation of bulk petroleum products by bottom
loading tank trucks vis-à-vis Paradeep Terminal for the year
2021-2022. Vide Annexure-A/1, it was made clear that clarification
end date vis-à-vis the Tender Call Notice under Annexure-2 was
27.07.2021 and the document download/sale end date/bid
submission end date was 14.08.2021 and bid opening date was
16.08.2021. Clause 1.1 of the Tender Call Notice made it clear
that all the tank trucks would be subject to third party inspection
and fabrication has to be carried out on a new tank from a PESO
approved fabricator. Serial No.3 of Clause 1.3 made it clear that
legible copies to be submitted with regard to valid R.T.O.
registration and PESO license for the tank trucks (for short 'TTs')
offered and TTs offered without these documents, would not be
considered for evaluation. As per Clause 1.4.7 of the Tender Call
Notice, a tenderer will have to offer TTs in the ratio of number of
TTs required capacity wise i.e. 12-16 KL : 18-40 KL. It also made it
clear that one tenderer can offer maximum 6 TTs in the ratio of 2
numbers TTs of 12-16 Kilo Litres (for short 'KL') capacity and 4
numbers TTs of 18-40 KL capacity. Like this minimum TTs which
can be offered by a tenderer shall be in the ratio of one number of
TT in 12-16 KL capacity and two numbers of TTs in 18-40 KL
capacity. It also made it clear that that the TTs which would fall
under the ratio specified shall be considered under LOT-1. In case
a tenderer has offered TTs not in the desired ratio, then the TTs
falling in desired ratio shall be considered as LOT-1 and other TTs
offered beyond the ratio shall be considered in LOT-2. While
allocation of TTs within L-1 rate is finalized, the offers from LOT-1
will be allocated and if the requirement is still not met, then
allocation will be made from LOT-2. It also laid down the ranking
procedure. At clause 1.4.9 it was made clear that all ready built
TTs offered should have valid R.T.O. registration and PESO license
as indicated earlier and as per Clause 1.4.12, the tenderer shall fill
the details of ownership of TTs, R.T.O registration, PESO license
etc. as applicable in the particulars of TTs offered. It also provided
for reservation criteria which included reservation in favour of the
S.C., S.T and MSEs. At Clause 1.11, it laid down the process of
evaluation of tenders. At clause 1.12 (c) it was made clear that the
tenderer's offer complete in all respect must be submitted on or
before the due date of closing of the tender in line with the
instructions given. As per Clause 1.12(d), claims and objections
due to ignorance of existing conditions or inadequacy of
information would not be considered after submission of the bid
and during the implementation. Further as per Clause 1.12 (e) it
was made clear that the tenderer shall give an undertaking on their
letter head that the content of the bidding document has not been
altered or modified and any change in the bid documents or
conditional bid is liable to be summarily rejected.
In the "Instructions to Tenderers for participation in E-
Tendering" under Annexure-2, it was made clear that no bids
should be submitted after the last date and time of submission has
reached and if the tenderer intended to revise the bid already
submitted, they may change or revise the same on or before the
last date and time of submission of bid. It also made it clear that
no bid can be modified after the dead line of submission of bids.
The said instructions also stipulated that the relevant documents
as mentioned in the tender are to be submitted online only and the
opposite party No.1 will not be responsible in any way for failure on
the part of the tenderer to follow the instructions and the tenderers
were advised in their own interest to ensure that the bids are
uploaded in e-Procurement system well before the closing date and
time of bid.
The document under Annexure-2 also includes the
application form to be filed by the tenderers. For our purpose
Sl. No.20 under the heading of "List of Documents required for
Technical Evaluation" forming part of the said form is relevant and
the same is quoted hereunder.
Sr. Description of Requirement Submitted/Not
Document Submitted
XXXX XXXX XXXX XXXX
20. All the Tank 3rd Party Inspection report
Trucks are for Ready Built Tank
subject to Third Trucks.
Party Inspection
Third party Inspection
report confirming that the
Ready Built Tank Trucks
are fitted with equipment
to facilitate bottom
loading and vapor
recovery system
conforming to OISD
RP167 & API RP 1004
Standard.
The 3rd Party Inspection
report can be obtained
from any PESO approved
fabricator (Garage)
confirming the above.
Certificate from PESO that
the Fabricator is a PESO
Approved Fabricator, also
to be submitted along
with the Certificate.
XXXX XXXX XXXX XXXX
It appears that the petitioner offered his tender by e-mail dated
13.08.2021 offering six fully built TTs, two with capacity in
between 12-16 KL, four with the capacity in between 18-40 KL. It
appears from the application form filed by the petitioner that the
petitioner has given a tick mark against Sl. No.20 which gives an
impression that it had uploaded third party inspection reports of
all the six TTs confirming that the TTs were fitted with equipment
to facilitate bottom loading and vapor recovery system conforming
to OISD RP 167 & API RP 1004 Standard. But the factual position
of this case reveals that though the petitioner had offered six TTs,
however with regard to two TTs bearing Registration
Nos.OD04P5643 & OD04P5743 in 18-40 KL capacity, no such
inspection reports were submitted while uploading the tender
documents. In such background, vide Annexure-B/1 filed by the
opposite parties; the petitioner was given an opportunity to submit
such reports by 24.09.2021 which should be valid on the closing
date of tender i.e. 14.08.2021. Accordingly, the petitioner
submitted a document dated 23.09.2021 under Annexure-C/1 on
24.09.2021. From the tender summary report under Annexure-1
uploaded on 02.12.2021, the petitioner came to know that its bid
has been rejected. When the petitioner made queries, it came to
know that the work orders have been issued in favour of the
successful bidders on 18.03.2022 and on finding out the real
reasons of rejection i.e. on account of absence of Third Party
Inspection Reports/Fabrication Certificates with regard two TTs
bearing Registration Nos.OD04P5643 & OD04P5743, it submitted
a representation on 21.03.2022 vide Annexure-4 to include its two
TTs as it has already submitted the required Certificate on
24.09.2021. It also prayed to consider its case as the above noted
two TTs are already running outside the State on existing contract
at Paradeep Terminal from 04.11.2020 for I.O.C.L. However, on
05.04.2022 vide Annexure-4/1, the prayer of the petitioner was
rejected referring to Sl. No.20 of the list of documents quoted
earlier and Clause No.21 of the tender document as indciated at
page-31 of the said documents, both of which require that the TTs
quoted in these tender should have valid PESO license and R.T.O.
registration certificate at the time of submission of the bids. There
it was made clear that though the petitioner offered six number of
TTs however, during scrutiny it was observed that in two numbers
of TTs namely Nos.OD04P5643 & OD04P5743, the petitioner had
not submitted third party inspection reports confirming that the
said ready built tank trucks were fitted with equipment to facilitate
bottom loading and vapor recovery system confirming to OISD
RP167 & API RP 1004 standard. It was also indicated in Annexure-
4/1 that though the petitioner was given an opportunity vide
Annexure-B/1 to submit the same with the clear-cut requirement
that the reports should be valid as on the closing date of the tender
i.e. 14.08.2021 and though the petitioner submitted the third party
inspection report vide Annexure-C/1 but from that document it
was clear that on the date of closing of the tender i.e. 14.08.2021,
the petitioner did not have the third party inspection reports in
respect of the above noted two TTs confirming to the above
mentioned requirements. Hence, the above two number of TTs out
of six TTs offered by the petitioner were rejected. It also drew
attention of the petitioner to the representation under Annexure-4
where it has admitted committing the mistake vis-à-vis the above
two TTs. Therefore, in such background, the petitioner did not get
any allocation of TTs and challenging such rejection, the present
writ application has been filed.
3. Mr. D. Panda, learned counsel for the petitioner at the
outset fairly submitted that the third party inspection reports
confirming that the ready built tank trucks are fitted with
equipment to facilitate bottom loading and vapor recovery system
confirming to OISD RP167 & API RP 1004 standard were not
submitted by the petitioner in respect of the TT Nos.OD04P5643 &
OD04P5743. However, he contended that as both the trucks have
already been engaged by the opposite party No.1 for bulk
transportation of petroleum products since 2020 pursuant to the
work order under Annexure-3, the opposite party should not have
rejected those two TTs. Secondly, he submitted that even as per
their direction under Annexure-B/1, the petitioner has submitted
the required third party inspection reports on 23.09.2021 under
Annexure-C/1 on 24.09.2021. In such background, also those two
TTs should not have been rejected and its case should have been
considered under the desired ratio of 2:4 as it had offered six TTs.
Thirdly, he contended that such rejection violates Clauses 1.3 &
1.4.7 to 1.4.12 of the Tender Call Notice. Lastly, he submitted that
such rejection has been done with a mala fide intention to favour
some other transporters.
4. Mr. P.K. Rath, learned counsel for the opposite parties
submitted that as per the conditions enumerated in the Tender
Call Notice under Annexure-2, Clause 1.1 made it clear that all the
TTs were subject to third party inspection and as per Sl. No.3
under Clause 1.3, all the TTs were required to submit valid R.T.O.
registration and PESO license and if these documents are not
submitted then such TTs will not be considered for evaluation. He
also submitted that Sl. No.20 under the heading "List of
Documents Required for Technical Evaluation" which forms part of
the application form, required each tenderer to submit third party
inspection reports confirming that its TTs were fitted with
equipment to facilitate bottom loading and vapor recovery system
conforming to OISD RP 167 & API RP 1004 Standard, which was
also indicated in Clause 1.1 and by putting a tick mark against
such column, the petitioner has acted in a mischievous manner as
it had not submitted such third party inspection reports in respect
of two out of six TTs. Relying upon sub-clauses (c)(d)(e) of Clause
1.12 of the Tender Call Notice and the "Instructions to Tenderers
for participating in E-Tendering" at internal pages 20 & 21 of the
Tender Call Notice, he reiterated that third party inspection reports
in respect of each of the TTs should have been submitted before
the last date which was never done in this case so far as two TTs
are concerned. Moreover though the petitioner was given an
opportunity to submit the third party inspection reports in respect
of those two vehicles by 24.09.2021 showing them to be valid as on
the last date i.e. 14.08.2021, however the same were never
supplied by the petitioner. Document at Annexure-C/1 dated
23.09.2021 submitted by the petitioner nowhere showed that those
two vehicles had valid third party inspection report as on
14.08.2021. He also submitted that the petitioner having admitted
its mistake in its representation under Annexure-4 and in view of
the detailed reasoning given in the impugned order under
Annexure-4/1, this Court should not interfere with the decision
making process of the opposite parties, which cannot be described
as arbitrary, irrational, perverse or mala fide in the facts and
circumstances of the case. In this context, he relied upon the
decisions of the Supreme Court as rendered in the case of Afcons
Infrastructure Limited Vrs. Nagpur Metro Rail Corporation
Limited and Another, (2016) 17 SCC 818 and Silppi
Constructions Contractors Vrs. Union of India and another,
(2020) 16 SCC 489. With regard to mala fide, he contended that no
specific allegation on this issue pointing fingers at specific persons
have been made in the writ petition and since the allegation
relating to mala fide is vague, the same should not be accepted.
Lastly, drawing our attention to the affidavit dated 12.09.2022 filed
on behalf of opposite parties which gives the details relating to
reservation and ranking system given at page-10 under Annexure-
F/1, he submitted that the petitioner fell under general category.
For such category, in 12-16 KL capacity, 10 TTs were required as
per Table Nos.1, 2 & 5 and for 18-40 KL capacity, 19 TTs were
earmarked via-vis the Table Nos.1, 3 & 5. In this context, he took
us through the tables and Notes attached to such tables clearly
explaining the above noted figures of 10 & 19 earmarked for two
categories of TTs. As per Table No.6, taking into account the
desired ratio in LOT-1 to be 2:4, the merit list got exhausted at Sl.
No.5 as up to that stage the TTs offered in the desired ratio of 2:4
were accommodated. With reference to Table No.7, he submitted
that conceding for a moment that even if two more TTs are allotted,
then the allocation can move up to Sl. No.6 in the ranking list and
since the petitioner occupied Sl. No.8, there was no question of
issue of any work order in its favour as by that time after rejection
of two of its TTs, all the slots of general category have been
exhausted. In this context, he submitted that though Annexure-
F/1 contains 7 Tables, as only 3 have been numbered, he prayed
that rest of the Tables be treated as Tables No.4, 5, 6 & 7 serially.
He also submitted that the allegations made by the petitioner
against successful bidders are to be rejected as those bidders have
not been impleaded as parties to this case.
5. Heard Mr. D. Panda, learned counsel for the petitioner
and Mr. P.K. Rath, learned counsel for the opposite parties.
6. From a perusal of records which includes the counter
and various affidavits filed by the opposite parties and the rejoinder
and various affidavit filed by the petitioner, it is clear that the
petitioner never submitted the third party inspection reports in
respect of two TTs Viz. OD04P5643 & OD04P5743 though the
application form required that all the TTs were subject to third
party inspection. Further, the petitioner put a tick mark against Sl.
No.20 of the Application Form without submitting the reports in
respect of two vehicles. However, since Mr. Panda has fairly
submitted that no such third party inspection reports were
submitted vis-à-vis the above noted two vehicles, we are not taking
a serious view of the matter. But non-filing of those reports clearly
made the offer of the petitioner in respect of these two vehicles,
incomplete. The plea of Mr. Panda that since those two TTs have
already been engaged by the opposite party No.1, those two TTS
should not have been rejected, cannot be accepted because as per
Clause 1.1, Serial No.3 of Clause 1.3 so also as per Sl. No.20 under
the "List of Documents Required for Technical Evaluation" etc.
submission of third party inspection reports in respect of all the
TTs was mandatorily required. Sub-Clause (c) of Clause 1.12 of the
tender documents under Annexure-2 required that the tenderer's
offer should be complete in all respects. Since such reports were
not supplied with regard to two TTs, clearly the offer of petitioner
remained incomplete. Assuming that the above noted two TTs had
the required reports by the last date i.e. 14.08.2021 however, there
is nothing to show that this was brought to the notice of the
decision making authority at any point of time vis-à-vis the Tender
Call Notice under Annexure-2 either by the last date i.e.
14.08.2021 or in response to Annexure-B/1 by 24.09.2021.
Though the petitioner could have sought clarification on this
aspect by 27.07.2021, which was the last date for clarification but
there is nothing to show that the petitioner sought for the same
prior to filing its tender documents. Further, it may be noted that
when the petitioner got an opportunity, though it submitted the
report on 24.09.2021 under Annexure-C/1 but a perusal of the
same does not show that those third party inspection reports were
valid on the last date of submission of the bid i.e. 14.08.2021. It
only shows those report to be valid till 20.08.2023 and since the
certificate under Annexure-C/1 was issued on 23.09.2021, an
ordinary interpretation of the said document would be that the
report is valid from 23.09.2021 till 20.08.2023. Therefore, the
document at Annexure-C/1 cannot be of much help to the
petitioner. Accordingly, we are not willing to accept the second
contention of Mr. Panda. All the above noted shortcomings have
been highlighted by the well reasoned rejection order under
Annexure-4/1.
7. With regard to allegation of Mr. Panda that there has
been violation of Clauses 1.3, 1.4.7 to 1.4.12 7 of the Tender Call
Notice, a perusal of the same do not reflect any violation in the
facts and circumstances as already discussed. Clause 1.3 at
Sl.No.3 rather makes it clear that legible copies of valid R.T.O.
registration of PESO license for TTs offered be submitted and
without these documents, the offer will not be considered. A
reading of Clauses 1.4.7 to 1.4.12 also does not offer much help to
the petitioner as these deal with stipulations relating to the ratio
system, the desired ratio and the ranking procedure etc. Rather the
Ratio and LOT system as explained at Clause 1.4.7 makes it clear
that tenderer is required to offer TTs in desired ratio and those TTs
falling in the desired ratio shall be considered in LOT-1 and in case
the tenderer has offered TTs, not in desired ratio then such TTs
would be considered in LOT-2 and when offers from LOT-1 do not
meet the requirement then allocation will be made from LOT-2.
Since two TTs of the petitioner were rightly rejected, the authorities
took the total TTs offered for LOT-1 in 1:2 ratio i.e. one under 12-
16 KL capacity category and two others under 18-40 KL capacity
for the purpose of LOT-1 as reflected in Table No.6 at page 10 of
Annexure-F/1 attached to affidavit dated 12.09.2022 filed by the
opposite parties. However, since the Table-6 of Annexure-F/1
clearly show that vis-à-vis the available slots of 10 in 12-16 KL
capacity category and 19 in 18-40 KL capacity category, TTs with
the desired ratio of 2:4 were available till merit list No.5 and further
since the desired slots got exhausted at Sl. No.5 and since the
petitioner stood at Sl. No.8 the petitioner did not have a chance of
getting its TTs allotted.
8. With regard to the allegation of mala fide as made by
the petitioner, since as per the settled position of law specific and
detailed allegations have not been made with supporting materials
and since against those whom allegations have been made, they
have not been made parties in person, we refuse to take cognizance
of such allegation.
9. All these discussions would clearly show that despite
requirement for submitting third party inspection reports in
respect of all the vehicles, the petitioner did not submit such
reports in respect of two vehicles by the last date and even though
it was given an opportunity thereafter, it did not submit the
document showing that by the last date, the two vehicles had such
inspections reports. Further, though vide Annexure-A/1,
27.7.2021 was indicated as the last date for clarification, there is
nothing on record to show that the petitioner made an effort to get
any clarification with regard to supply of third party inspection
reports in respect of two vehicles which according to it were already
working for opposite party No.1 pursuant the order under
Annexure-3.
For the above noted reasons, we do not find any wrong
has been committed by the opposite party No.1 in not issuing any
work order in favour of the petitioner particularly in the
background of its ranking as indicated at Table No.6 of
Annexure-F/1 enclosed with the affidavit dated 12.09.2022 filed by
the opposite party. Since the decision making process has not been
affected by arbitrariness, irrationality, perversity and mala fide, we
find no reasons to interfere in the matter. As per the decisions of
the Supreme Court rendered in the case of Afcons Infrastructure
Limited (supra) and Silppi Constructions Contractors (supra) it
has been made clear that Constitutional Courts should exercise a
lot of restraint while exercising their power of judicial review in
contractual and commercial matters and Courts must give "fair
play in the joint" to the Government and public sector undertaking
in such matters and unless a case of mala fide, arbitrariness,
irrationality and perversity is made out, the Constitutional Courts
ought not to interfere in such matters while exercising their power
of judicial review. Further it is settled in both the decisions that the
authority who floats the tender and had authored the tender
documents is the best judge as to how such documents are to be
interpreted and the employer of a project, having authored the
tender documents, is the best person to understand and appreciate
its requirements and interpret its documents. Therefore, in the
background of non-furnishing of third party inspection reports
when submission of such reports was a mandatory requirement as
per the Tender Call Notice under Annexure-2 as discussed above, it
cannot be said that the authority has committed any illegality in
rejecting the bid of the petitioner and in not awarding the work to
it.
10. For all these reasons, this writ petition is without any
merit and is dismissed hereby. No costs.
...................................
Biswajit Mohanty, J.
I agree
...................................
Savitri Ratho, J.
Orissa High Court, Cuttack
The 19th October, 2022 /Prasant
