Afr vs Bharat Sanchar Nigam Ltd
2023 Latest Caselaw 2812 Ori

                  ORISSA HIGH COURT: CUTTACK

                      W.P(C) NO. 7844 OF 2023,
                      W.P.(C) NO.9129 OF 2023,
                      W.P.(C) NO. 9130 OF 2023
                                 AND
                      W.P.(C) NO.9476 OF 2023

      In the matter of applications under Articles 226 and 227
      of the Constitution of India.
                             ---------------

AFR Debjyoti Dutta (in all the writ petitions) ..... Petitioner

-Versus-

      Bharat Sanchar Nigam Ltd.,
      New Delhi & Ors.                          .....    Opp. Parties
      (in all the writ petitions)

          For petitioner     :        M/s. Biswajit Das, S. Mishra,
                                      D. Chauhan, A. Sharma and
                                      Y. Harshvardhan, Advocates


          For opp. parties :          Mr. P.R. Barik, Advocate,
                                      [O.Ps.1-3]

                                      Mr. P.C. Nayak, Advocate
                                      [O.Ps. No.4 & 5]
      P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE M.S. RAMAN DECIDED ON : 05.04.2023 DR. B.R. SARANGI,J. All the above noted four writ petitions

filed at the instance of the selfsame petitioner Debjyoti

Dutta against different packages of work involved

common questions of law and identical cause of action.

Therefore, they are heard together and disposed of by

this common judgment.

2. For the sake of convenience and proper

adjudication of all the above noted writ petitions, the

facts of W.P.(C) No.7844 of 2023 have been referred to

for proper adjudication of the lis between the parties.

3. Bharat Sanchar Nigam Limited (hereinafter to

be referred as "BSNL" for short) issued Notice Inviting

Tender (NIT), vide NIT No.OD-DKL-23/11(11)/29/2022-

HR PLG-DKL OD/07 dated 19.11.2022 under

Annexure-11, inviting digitally sealed online tenders [E-

tenders (digitally signed)] on rupee payment basis in

single stage bidding and two stage opening using two

Electronic Envelops [Techno-Commercial (Qualifying

Bid) & Financial Bid] from the experienced contractors

for the works mentioned in the notification. Clause-3 of

the NIT prescribes eligibility criteria for participating in

the tender and, as such, clause-4 provides the period of

contract as two years and clause-5 deals with the date

of sale of tender documents, last date of submission of

bid and date of opening of bids, with a note that the

price of bid document along with GST shall not be

refundable. Under clauses-10 & 11, it was provided as

follows:-

"10. All the documents in Qualifying Bid-Part-A and Financial bid-Part-B are to be uploaded in the respective electronic envelops/parts on e- tender portal including proof of deposit of cost towards e-payment (RTGS/NEFT)/DD/Banker's Cheque/ towards cost of tender and e-payment (RTGS/NEFT)/DD/Banker's Cheque/BG towards EMD.

11. Last date and time of submission of Tender documents:

(i) Date and Time of submission of Tender bids online on or before 09/12/2022 upto 11:30hrs.

(ii) Envelope containing offline document should be submitted on or before 11:00 Hrs.

            on 12/12/2022

            (iii) Date and    time   of opening           of
            Tender:12/12/2022 at 15:40hrs".

3.1         In response to the NIT, referred to above, the

petitioner submitted his bid through online. He had to

submit bid documents, as provided in clause-3 of the

Instruction to Bidders under Section-IV of the NIT.

Clause-4 thereof states with regard to queries on bid

document and clause-11 provides method of

preparation & submission of bids in e-Tendering

System. But on evaluation of the technical bid of the

petitioner, Tender Opening Committee (Technical Bid)

submitted its report dated 20.12.2022 under Annexure-

1, which runs as follows:-

"As per tender document all the above bidders submitted the documents both online and offline except Sri Debjyoti Dutta. Hence the online bid documents downloaded from the e-Tender portal www.etenders.gov.in. for all above bidders except Sri Debjyoti Dutta for checking".

As a consequence thereof, the bid of the petitioner was

rejected vide order dated 17.01.2023 under Annexure-2

on the following grounds:-

"The bidder Sri Debjyoti Dutta has not submitted the required documents in offline mode as per clause No. 12.1.1 of Section-IV and Clause No. 5.1 of Section VI. So, in the absence of these documents, the e-Bid of the bidder has not been considered further for scrutiny. Hence the bid is rejected."

3.2 Therefore, by means of this writ petition

[WP(C) No. 7844 of 2023], the petitioner seeks to quash

the decision of opposite party no.3 purportedly

refraining from proceeding to check petitioner's

technical bid in the NIT No.OD-DKL-

23/11(11)/29/2022-HR PLG-DKL OD/07 dated

19.11.2022 (NIT-29) as recorded in Tender Opening

Committee (Technical Bid) report dated 20.12.2022

under Annexure-1; as well as the decision dated

17.01.2023 of Tender Evaluation Committee (Technical

Bid) under Annexure-2 inter-alia recommending

opposite party no.4 to 6 as the responsive bidders, so

also the decision dated 30.01.2023 of the Tender

Opening Committee (Financial Bid) under Annexure-3

and the decision dated 31.01.2023 of the Tender

Evaluation Committee (Financial Bid) under Annexure-

4 by granting/awarding NIT-29 in favour of opposite

party no.5; and further to issue direction to the

opposite party organization to open and consider the

petitioner's Technical and Financial Bid and

grant/award NIT-29 in his favour in accordance with

law.

4. Mr. Biswajit Das, learned counsel appearing

for the petitioner vehemently contended that the

petitioner is not required to submit any document

through offline mode as per clause-12.1.1 of Section-IV,

as he has been exempted by the MSME. It is further

contended that the petitioner himself, having been

participated in the tender process, is not required to file

any power of attorney. It is further contended that the

petitioner being exempted by MSME, he has furnished

that information on online basis. Unless the technical

bid of the petitioner is opened, such fact cannot be

revealed. Therefore, the decision with regard to non-

opening of the technical bid of the petitioner cannot be

sustained in the eye of law and the same is liable to be

rejected.

4.1 It is further contended that Section-IV

provides the Instruction to Bidders. Clause-B thereof

deals with the Bid Document. Under Point No.3 Part-A,

it has been prescribed the qualifying bid, which has

been indicated in a tabular form containing clause

3.1.1.1 to 3.1.2.1. It has also been indicated therein

that the Bidder is expected to examine all instructions,

forms, terms & conditions and the specifications in the

bid documents. Failure to furnish all information

required as per the Bid Documents or submission of

bids not substantially responsive to the Bid Documents

in every respect will be at the bidder's risk and shall

result in rejection of the bid. Therefore, he contended

that the petitioner having possessed all the information

in terms of clause-3 on online basis, rejection of his bid

for non-compliance of clause-12.1.1 of Section-IV and

clause-5.1 of Section-VI cannot be sustained in the eye

of law. Thereby, the action of the authorities, being

arbitrary, unreasonable and contrary to the provisions

of law, he seeks for quashing of the report of the Tender

Opening Committee (Technical Bid) dated 20.12.2022

vide Annexure-1 and also the report of the Tender

Evaluation Committee (Technical Bid) dated 17.01.2023

vide Annexure-2, which was issued basing on the report

of the Tender Opening Committee (Technical Bid).

5. Mr. P.R. Barik, learned counsel appearing for

the BSNL contended that e-Tender issued by the

opposite party authority contains two parts, one part is

with regard to submission of documents through online

mode and the other is through offline mode. Initially,

the documents, which are to be submitted through

offline mode, were to be opened and thereupon if

somebody qualifies through offline basis, then his

document submitted through online basis will be

opened for technical bid evaluation and thereafter for

financial bid evaluation. In the present case, the

petitioner has not submitted his bid documents through

offline basis, as has been stipulated in clause-12.1.1 of

Section-IV and clause-5.1 of Section VI. Therefore, the

application of the petitioner was incomplete, for which

the question of opening of the bid of the petitioner does

not arise. As a consequence thereof, the e-Tender of the

petitioner was not opened and he was declared

disqualified and his bid was rejected. Thereby, opposite

parties no.2 & 3 have not committed any illegality or

irregularity in rejecting the bid of the petitioner so as to

call for any interference of this Court at this stage.

6. Mr. P.C. Nayak, learned counsel appearing for

the private opposite parties no.4 & 5 also contended

that the petitioner having not adhered to the conditions

stipulated in the tender documents, his bid has been

rightly rejected. The petitioner had earlier approached

this Court by filing W.P.(C) No. 3586 of 2023

challenging the similar decisions taken by the

authorities, as the same terms and conditions

stipulated in the NIT were not complied with. This

Court, vide order dated 16.02.2023, taking into

consideration the arguments advanced by the respective

parties did not feel inclined to interfere with the case

and dismissed the said writ petition. In view of such

position, rejection of the bid of the petitioner having

been made on the very selfsame ground, challenge made

in the present writ petition cannot be sustained in the

eye of law. Rather, the writ petition should be dismissed

in terms of the order dated 16.02.2023 passed in

W.P.(C) No. 3586 of 2023. Apart from the same, it is

contended that in the meantime a right has been

accrued in favour of opposite parties no.4 & 5, who have

been selected by following due procedure of law.

Thereby, non-consideration of the technical bid of the

petitioner is well justified, because he has not complied

with the mandatory provisions of the tender documents

by furnishing the documents through offline. Therefore,

he seeks for dismissal of the writ petition.

7. This Court heard Mr. Biswajit Das, learned

counsel appearing for the petitioner, Mr. P.R. Barik,

learned counsel appearing for opposite parties no.1 to 3

and Mr. P.C. Nayak, learned counsel appearing for

opposite party nos. 4 and 5 in hybrid mode and perused

the records. Pleadings have been exchanged between

the parties and with the consent of learned Counsel for

the parties, the writ petition is being disposed of finally

at the stage of admission.

8. Before adverting into the merits of the case,

the relevant provisions of the tender documents, which

are required for due adjudication of the case, are to be

referred to.

Clause-12 of the Instruction to Bidders reads

as follows:-

"Envelope for BID security, Tender cost & Authorization' NIT No-OD-DKL-23/11(11)/29/2022-HR PLG-

DKL OD-07 Dated-19/11/2022

"Laying PLB pipe/Duct and Associated works by Open Trench Method/Trenchless Technology, Optional Fiber Cable Pulling/Blowing and splicing works etc., and drawing OF Cable on Overhead for 4G saturation project in Dhenkanal District under Dhenkanal SSA"

To The SDE (PLG), Room No.204, O/o GMBA, BSNL, Dhenkanal-759001, From-

.......................

............................ ....................................

(i) Original Demand Draft (DD)/Bank Guarantee and Proof of payment if paid through NEFT/RTGS-drawn in favour of AO (Cash),O/o GMBA,BSNL, Dhenkanal, payable at Dhenkanal issued by any scheduled bank towards the payment/of Bid Security/EMD.

(ii) Original Demand Draft (DD)/Banker Cheque and Proof of payment if paid through NEFT/RTGS-drawn in favour of Account Officer BSNL name of the place, payable at place, issued by any scheduled bank towards the payment of Price of Bid document.

(iii) Original Power of attorney for authorization to sign and upload the bid.

Note: Please note that the submission of above documents is the prerequisite before bid opening

on e-tendering website meaning thereby in the absence of these documents e-bid of such tenderer will not be opened. These documents should be part Off-Line submission .

All above documents should be self-attested by the tender signing person."

Clauses-12.1.1 of Section-IV and clause-5.1

of Section-VI of the NIT are quoted below:-

"12.1.1 Documents to be submitted- All the documents in Qualifying Bid-part-A as mentioned in Clause 7 of this section and Financial Bid-Part-B as mentioned in clause 3 of this section are to be uploaded in the e-tender portal including proof of deposit of EMD, Cost of Tender document which may be deposited by way of RTGS/NEFT/Banker Cheque/Bank Guarantee."

xxx xxx xxx

"5.1. Offline submission The bidder shall submit the following documents offline to SDE (PLG), O/o GMBA, BSNL, Dhenkanal on or before the date & time of submission of bids specified in NIT, in a Sealed Envelope. The envelope shall bear (tender name), the tender number and the words 'DO NOT OPEN BEFORE' (due date & time).

1. EMD-Bid Security in Original, i.e. DD/Banker Cheque/Bank Guarantee/ proof of payment if paid through NEFT/RTGS

2. DD/ Bankers cheque against payment of tender fee/ proof of payment paid through NEFT/RTGS.

3. Power of attorney in accordance with clause available in tender.

4. MSE registration certificate if the bidder is claiming concession for Bid cost and Bid security.

5. Pass Phrase to open the tender document,

if applicable'."

9. On careful reading of the relevant clauses, as

mentioned in the foregoing paragraphs, it is made clear

that the last date and time of submission of the bids

through online basis was fixed to on or before

09.12.2022 up to 11.30 hours and the envelope

containing offline documents was to be submitted on or

before 11.00 hours of 12.12.2022 and the date and time

of opening of tender was fixed to 12.12.2022 at 15.40

hours.

10. As per clause-12.1.1 of Section-IV of the

tender document, as quoted hereinbefore, the petitioner

has to furnish documents mentioned in clause-(i), (ii)

and (iii) along with the note through online basis. When

this Court made a query with regard to filing of bid

documents through offline mode, Mr. B. Das, learned

counsel appearing for the petitioner contended that the

petitioner is not required to furnish the bid documents

through offline mode, as because he is MSME bidder

and has been exempted from doing so and, as such, the

documents have been placed through online basis only.

If the online application would have opened, then the

authority could have known the petitioner has been

exempted from filing documents through offline. He

further contended that so far as filing of power of

attorney is concerned, the petitioner himself being the

applicant, there is no need of producing such document

through offline basis. At this point of time, this Court

made a query that does the condition stipulated under

clause-12.1.1 require that the petitioner should not file

any document through offline basis in view of argument

advanced by the learned counsel for the petitioner, the

answer was emphatically "Yes". In view of such position,

this Court has taken note of the submission made by

learned counsel appearing for the petitioner, as it is

found to be contradictory to the conditions stipulated

under clause-12.1.1 of Section-IV and clause 5.1 of

Section-VI of the NIT.

11. Clause-12, as mentioned above, in the Note

itself makes it clear that the submission of documents

mentioned above are the prerequisite for bid opening on

e-tendering website. Meaning thereby, in the absence of

these documents, e-bid of such tenderer will not be

opened. These documents should be part of offline

submission. It is made clear that the Note appended to

clause-12 lays emphasis on production of documents as

mentioned in clause-12 by offline basis, which is the

pre-requisite for opening of bid on e-tendering website.

It has also been further clarified that in the absence of

these documents, e-bid of such tenderer will not be

opened. Thereby, the conditions stipulated in clause-12

is crystal clear, even though the contention raised that

the petitioner is exempted from filing such documents

because he is an MSME bidder and since he himself has

applied is not required to file any power of attorney. In

that case also, the petitioner has to intimate the same

by offline and if the tendering authority is satisfied with

the same, then only the question of opening of technical

bid of the petitioner will arise, in view of the note to

clause-12 of the contract.

12. Further, on perusal of clause-5.1 of Section-

VI, as mentioned above, it is made clear that if the

bidder has to participate in the e-Tender process

through online basis, then as per clause-5.1 of Section-

VI of the NIT, he has to submit bid documents, as has

been mentioned in clause-5.1.1 to 5.1.5 through offline

basis. Clause-5.1.4 clearly indicates that the bidder has

to submit MSME registration certificate, if the bidder is

claiming concession for bid cost and bid security

through offline basis. Clause-5.1.2 deals with online

submission of the documents enumerated therein. The

petitioner has complied with clause-5.1.2 while

submitting his bid through online basis. Therefore, the

requirement of clause-5.1, which provides for

submission of documents through offline basis, has to

be complied with.

13. In the case of Jagdish Mandal v. State of

Orissa, (2007) 14 SCC 517, the apex Court held as

follows:-

"..........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."

Taking into account the above principle and applying

the same to the present context, it is made clear that

the petitioner has not adhered to the provisions

contained in the NIT under clause-12, as mentioned

above.

14. In National High Speed Rail Corporation

v. Montecarlo Limited, (2022) 6 SCC 401, the apex

Court at paragraphs 34, 35 and 48 of judgment

observed as follows:-

"34. Even otherwise it is required to be noted that once a conscious decision was taken by the JICC and JICA, who can be said to be the author of the terms and conditions of the tender

document, taking a view and stand that the Bid submitted by the original writ petitioner suffers from material deviation and the said decision was taken after considering the relevant clauses of the ITB, thereafter it was not open for the High Court to interfere with such a conscious decision in exercise of powers under Article 226 of the Constitution of India and take a view that the Bid submitted by the original writ petitioner was in substantial compliance.

35. As observed hereinabove, there are as such no allegations of mala fides and/or favouritism at all. Therefore, the High Court has erred in holding that the Bid submitted by the original writ petitioner was in substantial compliance. Whether the Bid submitted by a Bidder suffers from any material deviation and/or any substantial deviation should be left to the author of the Bid document and normally, the High Courts, in exercise of the powers under Article 226 of the Constitution of India, should not interfere with the same unless such a decision is found to be mala fide and/or there are allegations of favouritism and/or such a decision is arbitrary.

48. Even while entertaining the writ petition and/or granting the stay which ultimately may delay the execution of the Mega projects, it must be remembered that it may seriously impede the execution of the projects of public importance and disables the State and/or its agencies/instrumentalities from discharging the constitutional and legal obligation towards the citizens. Therefore, the High Courts should be extremely careful and circumspect in exercise of its discretion while entertaining such petitions and/or while granting stay in such matters. Even in a case where the High Court is of the prima facie opinion that the decision is as such perverse and/or arbitrary and/or suffers from mala fides and/or favouritism, while entertaining such writ petition and/or pass any appropriate interim order, High Court may put to the writ petitioner's notice that in case the petitioner loses and there is a delay in execution

of the project due to such proceedings initiated by him/it, he/they may be saddled with the damages caused for delay in execution of such projects, which may be due to such frivolous litigations initiated by him/it. With these words of caution and advise, we rest the matter there and leave it to the wisdom of the concerned Court(s), which ultimately may look to the larger public interest and the national interest involved."

In the case cited above, the apex Court has laid down a

caution for interfering with the tender conditions in

exercise of the power conferred under Article 226 of the

Constitution of India. Therefore, in view of the

aforementioned judgment, it is made clear that if the

opposite party-authorities, who can be said as the

author of the terms and conditions of the said

documents, have taken a conscious decision on the

basis of the e-tender floated by them, it cannot be said

to be suffered from material deviation so as to warrant

interference by this Court.

15. In Galaxy Transport Agency v. New J.K.

Roadways, 2020 SCC OnLine SC 1035, a three Judge

Bench of the apex Court reiterated that the authority

that authors the tender document is the best person to

understand and appreciate its requirements, and thus,

its interpretation should not be second-guessed by a

Court in judicial review proceedings.

16. In Afcons Infrastructure Limited v. Nagpur

Metro Rail Corporation Limited and another, (2016)

16 SCC 818, the apex Court at paragraph-15 of the

judgment observed as follows:-

"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."

17. In Central Coalfield Limited and another

v. SLL-SML (Joint Venture Consortium) and others,

(2016) 8 SCC 622, the apex Court at paragraphs-47 of

the judgment ruled as follows:-

"47. The result of this discussion is that the issue of the acceptance or rejection of a bid or a

bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. As held in Ramana Dayaram Shetty the terms of the NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision making process can certainly be subject to judicial review. The 2016 (7) SCALE 425 (2012) 8 SCC 216 soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone or a decision "that no responsible authority acting reasonably and in accordance with relevant law could have reached" as held in Jagdish Mandal [Jagdish Mandal v. State of Odisha, (2007) 14 SCC 517] followed in Michigan Rubber [Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216]."

18. In Silpi Constructions Contractors v.

Union of India, 2019 SCC OnLine SC 1133, the apex

Court at paragraph-20 of the judgment held as

follows:-

"20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of

its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case."

19. In Vidarbha Irrigation Development

Corporation and others v. Anoj Kumar Agarwala

and others, (2020) 17 SCC 577, the apex Court held

that the tender documents cannot be ignored or treated

as redundant or superfluous and they must be given

meaning and their necessary significance. Given the fact

that in the present case, an essential tender condition,

which had to be strictly complied with, was not so

complied with, the appellant would have no power to

condone lack of such strict compliance. Any such

condonation, as has been done in the present case,

would amount to perversity in the understanding or

appreciation of the terms of the tender conditions, which

must be interfered with by a constitutional court.

The same view has also been taken by the

apex Court in M/s. Kamala Agencies v. State of

Odisha and Others, 2022 (III) ILR-CUT-754.

20. In Bakshi Security and Personnel Services

Private Limited v. Devkishan Computed Private

Limited and Others, (2016) 8 SC C 446, the apex

Court in paragraphs-14 & 15 of the judgment held as

follow:-

"14.The law is settled that an essential condition of a tender has to be strictly complied with. In Poddar Steel Corpn, v. Ganesh Engg. Works,(1991) 3 SCC 273, this Court held as under: (SCC p. 276, para

6)

"6. ... The requirements in a tender notice can be classified into two categories--those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases."

15. Similarly in B.S.N. Joshi & Sons Ltd v. Nair Coal Services Ltd., (2006) 11 SCC 548

this Court held as under: (SCC pp. 571-72, para 66)

"(i)if there are essential conditions, the same must be adhered to.

xxx xxx xxx"

21. In Durgawati Devi v. Union of India

through its Secretary, Ministry & Ors, SLP(C)

No.37479 of 2016, the apex Court, vide order dated

04.10.2019, passed in Special Leave Petition (C) No.

37479 of 2016 observed as follows:-

"Admittedly, as on the last date for submission of applications in terms of the advertisement referred to above, the petitioner did not own land as required. The petitioner only had an agreement for sale in her favour. It is well-settled that execution of a sale agreement does not transfer ownership/title. Ownership can only be acquired by a registered deed of conveyance. The petitioner was not eligible as on the last date for submission of applications.

Counsel appearing on behalf of the petitioner strenuously contended that a deed of conveyance has since been executed and the petitioner is now the owner of the land. However, it is not disputed that as on the relevant date, that is the last date for submission of applications, the petitioner was not the owner of the land.

The High Court cannot, and rightly did not, in exercise of power under Article 226 of the Constitution of India, relax the terms and conditions of a tender notice".

22 In Sorath Builders v. Shreejikrupa

Buildcon Limited and Another, (2009) 11 SCC 9, the

apex Court in paragraph-27 of the judgment held as

follows:-

"27. Following the aforesaid legal Principles laid down by this Court, we are of the considered opinion that Respondent 1 was negligent and was not sincere in submitting his pre-qualification documents within the time schedule laid down despite the fact that he had information that there is a time schedule attached to the notice inviting tenders. Despite being aware of the said stipulation he did not submit the required documents within the stipulated date. Pre- qualification documents were received by Respondent 2 University only after the time schedule was over. The terms and conditions of the tender as held by the Supreme Court are required to be adhered to strictly, and therefore, Respondent 2 University was justified in not opening the tender submitted by Respondent 1 on 1-12-2008, which was late by three days. According to us no grievance could also be made by Respondent 1 as lapse was due to his own fault".

The same view has also been taken by this Court in AF

Enterprises Limited, New Delhi v. State of Odisha &

Ors. (W.P.(C) No.22291 of 2022, decided on

12.12.2022).

23. In view of the foregoing discussions, if the

petitioner is not required to submit the documents, as

referred to above, through offline, as per the conditions

stipulated in the e-NIT, at least he has to give that

information through offline basis indicating that he is

exempted from doing so because of his inclusion in

MSME category. In absence of furnishing any document

or information by the petitioner through offline basis,

which is pre-requisite as per the Note to clause-12, the

opposite party-authorities have rightly not opened the

technical bid of the petitioner. If the submission of

learned counsel for the petitioner, as recorded above, is

accepted, then clause-12.1.1 of Section-IV and clause-

5.1 of Section-VI of the NIT will become redundant,

which the Court cannot re-write or express any opinion

on the adversity of the said clause. Therefore, due to

non-availability of any material on offline basis before

the opposite party-authorities for consideration of the

petitioner's bid in compliance to the conditions

stipulated in the tender documents, they have rightly

rejected the bid of the petitioner pursuant to clause-

12.1.1 of Section-IV and clause-5.1 of Section-VI of the

NIT. In view of such position, this Court does not find

any illegality or irregularity in the decision making

process of the opposite party-authorities in rejecting the

bid of the petitioner.

24. In the result, therefore, the writ petitions

merit no consideration and the same are hereby

dismissed. However, there shall be no order as to costs.

                                             (DR. B.R. SARANGI)
                                                   JUDGE


M.S. RAMAN, J.        I agree.

                                              (M.S. RAMAN)
                                                  JUDGE



        Orissa High Court, Cuttack

The 5th April, 2023, Alok/Arun/GDS