Rajasthan High Court - Jodhpur
M/S K.S. Bhati, Contractor Firm vs State Of Rajasthan on 4 December, 2023
Author: Arun Bhansali
Bench: Arun Bhansali, Rajendra Prakash Soni
[2023:RJ-JD:41803-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 582/2023
M/s K.S. Bhati, Contractor Firm, Through Its Sole Proprietor
Keshu Singh Bhati S/o Beju Singh Ji, Aged 64 Years, R/o 80,
Rajendra Nagar, Pali (Raj.).
----Appellant
Versus
1. State Of Rajasthan, Through The Registrar, Co-Operative
Societies, Rajasthan, Nehru Sahkar Bhawan, Bhawani
Singh Road, Jaipur.
2. The Rajasthan Co-Operative Dairy Federation Limited
(Rcdf), Through The Managing Director, Rcdf, Saras
Sankul, Jawahar Lal Nehru Marg, Jaipur.
3. The Manager, Jodhpur Cattle Feed Plant, Basni Industrial
Area, Ii Phase, Jodhpur.
4. Sudhanshu Gurjar, The Manager, Jodhpur Cattle Feed
Plant, Basni Industrial Area, Ii Phase, Jodhpur.
5. M/s Hanuman Singh Rawat, Navdurga Colony, Jawahar Ki
Naadi, Behind Hmt, Chandravardai Nagar, Beawar Road,
Ajmer.
----Respondents
For Appellant(s) : Mr. Ramendra Singh Saluja.
Mr. Achraj Singh Saluja.
For Respondent(s) : Mr. J. Gehlot.
Mr. K.K. Bhati.
Mr. Nitin Trivedi.
HON'BLE MR. JUSTICE ARUN BHANSALI
HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI
Judgment
(PER HON'BLE MR. JUSTICE ARUN BHANSALI)
04/12/2023
1. This appeal is directed against the order dated 6.6.2023
passed by learned Single Judge in S.B. Civil Writ Petition
[2023:RJ-JD:41803-DB] (2 of 10) [SAW-582/2023]
No.6308/2023, whereby, the writ petition filed by the Appellant -
Firm has been dismissed.
2. The petition was filed aggrieved of the order dated
20.4.2023 directing the petitioner firm to discontinue the work of
bagging, loading and stacking and diamond (byepass) work from
21.4.2023 and against the tender summary report dated
20.4.2023 showing respondent no.5 to have obtained L-1 rank
above the petitioner with L-2 rank.
3. It was inter alia indicated that Rajasthan Cooperative Diary
Federation Limited issued an E-bid for bagging, loading and
stacking related work and diamond (byepass) work.
4. On 01.04.2023 before issuance of the said E-bid, the
petitioner-firm had an existing contract of work from 16.10.2021
till 20.4.2023. Pursuant to the said E-bid, 7 bidders submitted
their documents for technical bid, for which, opening date was
indicated as 12.4.2023.
5. A notice of shortfall in the documents for the technical bid
was issued to all the bidders except the petitioner firm. In
compliance of the said notice, the bidders submitted the requisite
documents. The financial bid was opened on 20.4.2023 vide the
tender summary report, wherein, respondent no.5 was shown as
the lowest bidder and the petitioner firm was shown as the second
lowest bidder.
6. The petitioner firm gave notice for demand of justice pointing
out the alleged illegalities committed by respondent no.4, which
was replied to by the official respondent indicating that two firms
were ousted from bidding process. On the same day, work order
[2023:RJ-JD:41803-DB] (3 of 10) [SAW-582/2023]
was issued in favour of respondent no.5, who was required to
commence the work from 21.4.2023 i.e. the next date.
7. Aggrieved of the same, the writ petition was filed.
8. Submissions were made that under Section 14(6) of the
Rajasthan Transparency in Public Procurement Act, 2012, the
authority is clearly prohibited in adopting a criteria for procedure
other than those mentioned in the bidding document and as
Clauses 7 & 8 of the terms and conditions contained in the bid
document provided a clear prohibition with regard to
supplementing of documents after opening of the technical bid,
the notice of shortfall issued was in violation of the said clauses. It
was alleged that bidding process was done with the sole intention
to extend the undue favour to respondent no.5.
9. The allegations made in the petition were contested based on
preliminary objection that the petition was not maintainable as
alternative remedy was available. The contract of the petitioner
firm came to an end on 20.4.2023 and the respondent no.5 has
already started work w.e.f. 21.4.2023, the prohibition contained in
Clauses 7 & 8 has no application.
10. Learned Single Judge, after hearing the parties, came to the
conclusion that as respondent no.5 has already been awarded the
work order in question, which work has been started by
respondent no.5, any interference at this stage would amount to
unsettling an already settled position, more so when the Court did
not find any illegal infirmity, illegality and irregularity in the whole
process and, consequently, dismissed the writ petition.
11. Learned counsel for the appellant made vehement
submissions that the judgment impugned does not deal with any
[2023:RJ-JD:41803-DB] (4 of 10) [SAW-582/2023]
of the issues raised by the appellant, inasmuch as, when the
specific case of the appellant was that Clauses 7 & 8 of the E-bid
were violated along with Rule 60(4) of the Rajasthan Transparency
in Public Procurement Rules, 2013 ('the Rules of 2013'), the said
aspect was not at all considered and, therefore, the order
impugned deserves to be set aside.
12. Further submissions were made that a bare look at the
Clauses 7 & 8 of the E-bid would reveal that the bidder was to
upload all the documents in the technical bid and no change /
correction would be permitted, however, despite the fact that
respondent no.5 in his technical bid did not annex the PF
inspection report, in the shortfall document submission, the
shortfall pertaining to latest certified PF Inspection Report (IR)
was indicated, which was purportedly submitted by him.
13. It was emphasized that besides the fact that the document
submitted did not fulfill the requirement of the E-bid, calling for
the said document was in express violation of Rule 60(4) of the
Rules of 2013 as the same amounts to substantive change to
qualification information.
14. Learned counsel also made submissions that the technical
bid for lack of the said document was liable to be rejected and if
rejected, the petitioner firm was L-1 and was entitled to be
granted the work order / continue with his work, which he was
already performing to the satisfaction of the respondents and,
therefore, the petition should have been accepted by the Court.
15. Reliance was placed on PSEB v. Bhatia International Ltd.:
(2006) 13 SCC 284 and Goldyan Technoseve Ltd. v. State of M.P.:
(2011) 5 SCC 103 and Maharashtra Housing Development
[2023:RJ-JD:41803-DB] (5 of 10) [SAW-582/2023]
Authority v. Shapoorji Pallonji & Company Private Limited: (2018)
3 SCC 13.
16. Learned counsel appearing for respondent no.5 made
submissions that allegations made by the petitioner firm had no
substance. It was submitted that no specific favour was shown to
the respondent no.5, inasmuch as, all the 6 tenderers other than
the petitioner were issued the shortfall notice for the purpose of
producing the document, which were missing, based on which, the
respondent no.5 produced the requisite document, which is not in
dispute and, therefore, the plea raised has no substance.
17. It was submitted that the document / shortfall, which was
sought from respondent no.5 was non-material and the same was
covered by Rule 61 of the Rules of 2013, which provides for
waiver of non-conformities in the bid that do not constitute
material deviation and submission of necessary information of
document within reasonable period. It was emphasized that the
shortfall document only pertain to the latest inspection report of
the PF department. It is not the case of the petitioner that there
was any default insofar as the respondent no.5 was concerned
and, therefore, the plea raised has no substance.
18. It was reiterated, as was done before learned Single Judge
that bulk of the time of the work order is already over and about
4½ months remain, which may not be unsettled. It is prayed that
the appeal be dismissed.
19. Learned counsel for the petitioner reiterated that the
shortfall was not non-material as claimed and, therefore, the
appeal be allowed.
[2023:RJ-JD:41803-DB] (6 of 10) [SAW-582/2023]
20. We have considered the submissions made by learned
counsel for the parties and have perused the material available on
record.
21. The claim of the appellant - petitioner essentially is that as
the respondent no.5 the successful bidder had failed to fill in
column 13 of the E-bid and upload the document in this regard,
which required him to produce the latest inspection report from
the PF department, his technical bid should have been rejected
and, thereafter, his financial bid should not have been opened,
wherein, the appellant would have been L-1 and entitled to the
work order.
22. The terms and conditions of the bid pertaining to the E-
tender inter alia required uploading of all the documents as
required in the technical bid and also provided that no change or
correction would be permitted except for the name and rate of the
bidder.
23. When pursuant to the E-bid, 7 bidders applied, 6 bidders
were issued the shortfall notice (Annex.4 to the writ petition) inter
alia pointing out the documents missing in the bid documents,
which ranged from experience certificate, latest certified PF
inspection report, valid labour licence etc. Qua the respondent
no.5, the shortfall indicated was latest certified PF inspection
report (IR), the respondent no.5 uploaded the requisite material
available with him. Whereafter, the technical bid was opened and
respondent no.5 was found as L-1 and was given the work order,
based on which, he started the work from the next day.
[2023:RJ-JD:41803-DB] (7 of 10) [SAW-582/2023]
24. The challenge laid to the action of the respondents in seeking
the shortfall document is essentially based on the bid condition
and provisions of Rule 60(4) of the Rules of 2013.
25. The Rule 60 of the Rules of 2013 inter alia reads as under:
"60. Clarification of bids- (1) To assist in the
examination, evaluation, comparison and qualification
of the bids, the bid evaluation committee may, at its
discretion, ask any bidder for a clarification regarding
its bid. The committee's request for clarification and
the response of the bidder shall be in writing.
(2) Any clarification submitted by a bidder with regard
to its bid that is not in response to a request by the
committee shall not be considered.
(3) No change in the prices or substance of the bid
shall be sought, offered, or permitted, except to
confirm the correction of arithmetic errors discovered
by the committee in the evaluation of the financial
bids.
(4) No substantive change to qualification information
or to a submission including changes aimed at making
an unqualified bidder, qualified or an unresponsive
submission, responsive shall be sought, offered or
permitted.
(5) All communications generated under this rule shall
be included in the record of the procurement
proceedings."
26. A perusal of the above Rule reveals that the same gives a
discretion to the Bid Evaluation Committee to ask any bidder for a
clarification in writing and a response should also be in writing.
The Rule prohibits change in the prices or the substance of the bid
except to confirm the correction of arithmetic errors discovered by
the committee in the evaluation of the financial bids. Sub-Rule (4)
provides that no substantive change to qualification information or
to a submission including changes aimed at making an unqualified
[2023:RJ-JD:41803-DB] (8 of 10) [SAW-582/2023]
bidder, qualified or an unresponsive submission, responsive shall
be sought, offered or permitted.
27. This Rule facilitates seeking of clarification from the bidder
and provides restrictions under Sub rules 3 and 4 with regard to
prices or substance of the bid and substantive change to
qualification information.
28. A bare look at the technical bid reveals that under column 6
information regarding registration under the PF Act, 1952, was
sought along with certified copy of the registration and under
column 13, latest inspection report was sought. It is not in dispute
that respondent no.5 had produced the registration with the PF
department and apparently, the purpose for getting produced the
latest inspection report, was to ensure that the bidder was
complying with the provisions of the PF Act.
29. It is nobody's case that periodical inspection by the PF
department with a specified interval has been provided in the
statute so as to claim that non-production by respondent no.5 was
for the purpose of suppression of a particular aspect.
30. Rule 61 of the Rules of 2013 inter alia reads as under:-
"61. Non-material Non-conformities in bids- (1) The
bid evaluation committee may waive any
nonconformities in the bid that do not constitute a
material deviation, reservation or omission, the bid
shall be deemed to be substantially responsive.
(2) The bid evaluation committee may request the
bidder to submit the necessary information or
document like audited statement of accounts, PAN,
etc. within a reasonable period of time. Failure of the
bidder to comply with the request may result in the
rejection of its bid.
[2023:RJ-JD:41803-DB] (9 of 10) [SAW-582/2023]
(3) The bid evaluation committee may rectify non-
material nonconformities or omissions on the basis of
the information or documentation received from the
bidder under sub-rule (2).
31. The Rule authorizes the Bid Evaluation Committee to waive
any non-conformities, which do not constitute a material
deviation, reservation or omission and to make a request to the
bidder to submit the necessary information or document like
audited statements of accounts, PAN etc. and it can rectify non-
material, non-conformities based on the information received.
32. The above Rule is indicative enough of the fact that seeking
of documents by the Bid Evaluation Committee is not prohibited.
The allegations made regarding favouring respondent no.5 cannot
be countenanced for the simple reason that shortfall notice was
given to 6 bidders out of 7 bidders and apparently no special
favour was shown to respondent no.5.
33. In view of the above fact situation, wherein, the purpose for
seeking the inspection report essentially was to find out if there
were any violations of the requirements of PF Act and has nothing
to do with the substance of the bid or amounts to substantive
change in the qualification information so as to violate provision of
Rule 60 of the Rules of 2013. Rather, the clarification sought is in
consonance with provisions of Rule 61 of the Rules of 2013.
34. So far as the judgments relied on by learned counsel for the
appellant - petitioner are concerned, in the said judgments the
facts were entirely different, wherein, in the case of PSEB (supra),
a new tender document after the last date was sought to be
submitted as the tender documents submitted by the company
were forged by its employee, in the case of Goldyan Technoserve
[2023:RJ-JD:41803-DB] (10 of 10) [SAW-582/2023]
Ltd (supra), the required quality certificate was not produced
along with bid document, which was found to be in violation of the
tender conditions. Similarly, in the case of Maharashtra Housing
Development Authority (supra), it was found that bid submitted by
the respondent was not a valid bid. The facts and document
involved in the present case, as discussed hereinbefore, are
different and, therefore, the judgments have no application.
35. Consequently, for the reasons indicated above, no case is
made out for interference. The present Special Appeal is,
therefore, dismissed.
(RAJENDRA PRAKASH SONI),J (ARUN BHANSALI),J
Sumit/-
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