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2018 DIGILAW 934 (PNJ)

Tajinder Pal v. Food Corporation of India

2018-02-21

AVNEESH JHINGAN, S.J.VAZIFDAR

body2018
JUDGMENT : S.J. VAZIFDAR, J. 1. The petitioner has challenged the rejection of his technical bid in respect of tenders invited by the first respondent. Respondent Nos.2 and 3 are the officers of respondent No.1. Respondent No.4 is the private respondent in whose favour the first respondent has awarded a contract. 2. When the petition was initially filed, no reasons were furnished for the rejection of the petitioner’s bid. During the pendency of the petition, the first respondent, by an e-mail dated 08.02.2018 informed the petitioner that his technical bid was rejected as he had not uploaded the undertaking for notice inviting tenders which is a violation of clause 20 of the NIT. 3. The first respondent issued notice inviting tenders (NIT) online on 27.11.2017 for the appointment of contractors for loading/unloading/handling and transport of foodgrains and allied material and Road Transport Contractor for movement of foodgrains and allied material by road to the depots of adjoining regions from the centres of Haryana region for a period of two years. It is important to note at the outset that two types of contracts are contemplated – handling and transport contracts and road transport contracts. The present case concerns a road transport contract (RTC). The petitioner submitted a bid to be appointed as a Road Transport Contractor for the Ladwa – Srinagar route. The distance was specified as 279 kilometres. The estimated contract value was stipulated at Rs.15 lakhs. It is important at this stage to also note that in respect of HTC contracts, basic rates are notified. Thus, the nature of the financial commitment for HTC contracts and RTC contracts is different. 4. According to the respondents, two undertakings were to be uploaded, namely, “TENDER SUBMISSION UNDERTAKING FOR HTC/RTC (SPECIMEN)” and “UNDERTAKING FOR NOTICE INVITING TENDER (SPECIMEN)”. The respondents contend that whereas the petitioner had uploaded the first undertaking, he had failed to upload the second undertaking. (A) The undertaking that the petitioner uploaded reads as under:- “TENDER SUBMISSION UNDERTAKING FOR HTC/RTC (SPECIMEN) To The General Manager (Region) Food Corporation of India Regional Office, Haryana, Panchkula. Subject:- Acceptance of Terms and Conditions of Tender. Tender Reference No.______________________ Name of Tender/Work Dear Sir, 1. I/We have downloaded/obtained the tender document(s) for the above mentioned “Tender/Work” from the web site(s) namely https://eprocure.gov.in/eprocure/app as per your advertisement given in the above mentioned website(s). 2. Subject:- Acceptance of Terms and Conditions of Tender. Tender Reference No.______________________ Name of Tender/Work Dear Sir, 1. I/We have downloaded/obtained the tender document(s) for the above mentioned “Tender/Work” from the web site(s) namely https://eprocure.gov.in/eprocure/app as per your advertisement given in the above mentioned website(s). 2. I/We hereby certify that I/WE have read the entire terms and conditions of the tender documents from Page no.___ to ____ (including all documents like annexure(s), schedule(s), etc.) which form part of the contract agreement and I/We shall abide hereby by the terms/conditions/clauses contained therein. 3. The corrigendum(s) issued from time to time by your department/organization too have also been taken into consideration, while submitting this acceptance letter. 4. I/We hereby unconditionally accept the tender conditions of above mentioned tender document(s)/corrigendum(s) in its totality/entirety. 5. In case any provisions of this tender are found violated, then your department/organisation shall without prejudice to any other right or remedy be at liberty to reject this tender/bid including the forfeiture of the full said earnest money deposit absolutely along with taking action as per other remedies available under law. Yours Faithfully, (Sign of the Bidder, with official seal)” (B) The undertaking which the petitioner, admittedly, did not upload, as a result of which his technical bid was rejected, reads as under:- “UNDERTAKING FOR NOTICE INVITING TENDER (SPECIMEN) To The General Manager (Region) Food Corporation of India Regional Office, Haryana, Panchkula. Subject:- Acceptance of Terms and Conditions of NIT Tender Reference No.______________________ Name of Tender/Work Dear Sir, 1. I/We have downloaded/obtained the tender document(s) for the above mentioned “Tender/Work” from the web site(s) namely https://eprocure.gov.in/eprocure/app as per your advertisement given in the above mentioned website (s). 2. I/We hereby certify that I/We have read the entire terms and conditions of the Notice Inviting Tender page no.___ to ___ and Basic rates of transportation from storage points to Rail head via weighbridge Page no.___ to ___ which form part of the contract agreement and I/We shall abide hereby by the terms/conditions/clauses contained therein. 4. I/We hereby unconditionally accept the terms and conditions of above mentioned in Notice inviting Tender in its totality/entirety. 5. 4. I/We hereby unconditionally accept the terms and conditions of above mentioned in Notice inviting Tender in its totality/entirety. 5. In case any provisions of this Notice Inviting tender are found violated, then your department/organisation shall without prejudice to any other right or remedy be at liberty to reject this tender/bid including the forfeiture of the full said earnest money deposit absolutely along with taking action as per other remedies available under law. Yours Faithfully, (Sign of the Bidder, with official seal)” 5. Mr. Chopra rightly contended that clause 2 of the undertaking for notice inviting tender does not apply to an RTC contract with which we are concerned. His reliance upon clause 2, in this regard, is well-founded. Clause 2 of this format requires the bidder to confirm that he had read the terms and conditions of the NIT “and Basic rates of transportation from storage points to Rail head via weighbridge” and to certify that he would abide by the terms/conditions/clauses contained therein. Basic rates, however, do not apply to RTC contracts. Mr. K.K. Gupta, the learned counsel appearing on behalf of the first respondent, i.e., the party inviting tenders, fairly admitted that basic rates of transportation do not apply to RTC contracts and that they apply only to HTC contracts. At the cost of repetition, the petitioner’s bid was in respect of an RTC contract and not an HTC contract. The question of the petitioner agreeing to abide by the terms and conditions relating to basic rates does not arise. 6. Faced with this, the respondents contended that the petitioner ought to have suitably altered/modified clause 2 by certifying that he would be paid the amounts as per distance under the RTC contract. 7. The submission is not well-founded. If that was the intention of the first respondent, it ought to have provided for the same in the format. The first respondent cannot expect the bidders to assume that they are to unilaterally modify the undertaking to suit or be applicable to a contract. This would be unfair to the bidders. It is not even the first respondent’s case that bidders were directed to do so or were even informed that they ought to do so. 8. Equally unfounded is Mr. This would be unfair to the bidders. It is not even the first respondent’s case that bidders were directed to do so or were even informed that they ought to do so. 8. Equally unfounded is Mr. Gurminder Singh’s submission on behalf of respondent No.4 – the private respondent that clause 2 merely records that the bidders have read the entire terms and conditions and that the bidders have certified the rates which form part of the agreement as applicable to the parties and not necessarily to the basic rates referred to therein. A plain reading of the clause does not support this construction. There is no justification in reading into the undertaking/certificate aspects which are not evident therefrom. 9. Mr. Chopra’s submission is also supported by the fact that the first undertaking is specifically in respect of HTC/RTC contracts. The second undertaking does not state so expressly. It is, however, evident that it is not applicable to RTC contracts for basic rates are not the basis of the financial commitment in respect of RTC contracts. 10. The respondents relied upon clause 20 of the terms and conditions of the NIT which read as under:- “20. Bidder must upload duly filled undertaking for Notice Inviting Tender/Basic rates of transportation duly signed by bidder failing which the tender will be liable for rejection.” 11. In view of our above finding, clause 20 does not render the petitioner’s bid liable to rejection. It is only if the required undertaking is not uploaded that the tender is liable to be rejected. 12. Mr. Gupta’s apprehension that the petitioner’s bid would be without an undertaking is not well-founded. Clause 23 of the terms and conditions reads under:- “23. In case of RTC, rates (per MT/KM) quoted by the tenderer should be up to two digits after decimal, in case the rates are quoted in more than two digits then only two digits will be considered by FCI.” The bidders for RTC contracts are bound by the distance indicated in each case. The rate per kilometre is applicable to RTC contracts. There is, in fact, an undertaking to be furnished by a bidder for an RTC contract to abide by the rates per kilometre. As we noticed earlier, the distance for the Ladwa – Srinagar route is stipulated as 279 kilometres. The rate per kilometre is applicable to RTC contracts. There is, in fact, an undertaking to be furnished by a bidder for an RTC contract to abide by the rates per kilometre. As we noticed earlier, the distance for the Ladwa – Srinagar route is stipulated as 279 kilometres. This is, indeed, important for the bidder would be entitled to receive the rates per kilometre quoted by him for that distance and no more. Mr. Chopra does not deny the same either. There is, in fact, an undertaking which binds the bidders to the distance stipulated in the NIT which in the petitioner’s case is 279 kilometres. The petitioner has furnished an undertaking to be bound by the same. 13. Clause 5 of the “General Information to Tenderers” in so far as it is relevant, reads as under:- “5. Instructions for submitting Tender The instructions to be followed for submitting the tender are set out below: (a) The tenderer must fill up and sign the forwarding letter in the format given in Appendix- II and also furnish full, precise and accurate details in respect of information asked for in Appendix-III attached to the form of tender. The filled and signed Appendices I and II are to be scanned and uploaded at the space/packet provided in the e-procurement system. Detailed instructions to bidders are available at Annex-A of MTF. Bidders are requested to read the instructions contained therein carefully & meticulously for submission of bids through e-procure Portal.” The petitioner has, admittedly, filled up and signed the forwarding letter in the format given in Appendix-II which inter-alia provides as follows:- “FORWARDING LETTER …. ….. ….… .…..… …..…… ..….. .…..… …..…. ..….. .….. ….. .…… To THE GENERAL MANAGER, FOOD CORPORATION OF INDIA, REGIONAL OFFICE, HARYANA, PANCHKULA. …. ….. ….… .…..… …..…… ..….. .…..… …..…. ..….. .….. ….. .…… 2. I have thoroughly examined and understood all the terms & conditions as contained in the Tender document, invitation to tender, General Information to Tenderer and its annexures & appendices and agree to abide by them.” 14. Clause 2 makes it expressly clear that the petitioner had agreed to abide inter-alia by the terms and conditions as contained in the invitation to tenders. Even clause 2 of the undertaking for NIT only certified that the bidders had read the NIT and would abide by the terms and conditions contained therein. Clause 2 makes it expressly clear that the petitioner had agreed to abide inter-alia by the terms and conditions as contained in the invitation to tenders. Even clause 2 of the undertaking for NIT only certified that the bidders had read the NIT and would abide by the terms and conditions contained therein. The contention that there was no undertaking or agreement to abide by the terms and conditions in the invitation to tenders/NIT is, therefore, not well-founded. There is such an agreement in express terms in Appendix-II which, admittedly, had been uploaded by the petitioner. 15. Faced with this, the learned counsel appearing on behalf of the respondents, contended that this is not an agreement to abide by the terms and conditions of the NIT as it is only a forwarding letter. Reliance is placed in this regard on the words “FORWARDING LETTER” at the head of Appendix-II. The submission is not well-founded. The issue is whether the bidder had agreed to abide by the terms and conditions or not. The agreement to do so in a document titled “Forwarding Letter” makes it no less binding than an agreement to do in any other format or in a document of any other nature. The bidder would be bound by the same once he furnishes Appendix-II. Our attention has not been invited to any provision of law or any authority that supports a contention to the contrary. 16. In the result, the bidders for RTC contracts also furnished an undertaking in the form of a forwarding letter at Appendix-II to abide by all the terms and conditions of the NIT in so far as they pertain to RTC contracts as well. It is probably for this reason that a separate undertaking to abide by the terms and conditions of the NIT in respect of RTC contracts was not required by first respondent. 17. In view of these conclusions, it is not necessary to consider Mr. Chopra’s other contentions. 18. In the circumstances, the impugned decision rejecting the petitioner’s technical bid is quashed and set aside. The first respondent shall open and consider the petitioner’s financial bid along with the bids of other eligible bidders.