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2019 DIGILAW 970 (GAU)

Dhansiri Valley Oil Carrier, Borpathar v. Oil and Natural Gas Corporation Limited

2019-08-30

ARUP KUMAR GOSWAMI, MANISH CHOUDHURY

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JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. R.P. Kakoti, learned Senior counsel for the appellant in both the appeals assisted by Mr. S. Sutradhar as well as Mr. G.N. Sahewalla, learned Senior counsel assisted by Mr. T. Das, appearing for the respondents. 2. Since both the appeals arise in view of the common judgment and order dated 04.05.2019 passed in WP (C) Nos. 8603/2018 and 8604/2018 dismissing the writ petitions, these appeals are also taken up for consideration together. 3. WP (C) No. 8603/2018 was filed by one M/s Uddipta Auto Service, represented by Shri Pradip Borbora being the Managing Partner and authorized signatory. WP (C) No. 8604/2018 was filed by M/s Dhansiri Valley Oil Carrier, represented by Smt. Dipti Borbora being the partner of M/s Dhansiri Valley Oil Carrier. Both the petitioners had responded to an invitation of bids by Oil and Nature Gas Corporation Limited (ONGC), Jorhat Asset, for hiring of service of 13 crude oil tankers for a period of 3 years under National Competitive Bidding. The bidding was on a two-bid system by e-procurement process. 4. Pradip Borbora is a partner of M/s Dhansiri Valley Oil Carrier. Dipti Borbora is the wife of Pradip Borbora. As authorized signatory Pradip Borbora submitted tenders for both the petitioners. The Techno-Commercial Bid was opened on 15.10.2018 and according to the appellants, they were verbally informed that their Tchno-Commercial Bids were rejected without assigning any reason. 5. Stand taken in the affidavit on behalf of the ONGC was that as two bids were signed by one authorized signatory against same tender, both the bids were rejected on the ground that the same militates against clause (1)(2) of Section 2 of the Integrity Pact, which reads as follows:- "The bidder/contractor will not enter with other Bidders into any undisclosed agreement or understanding, whether formal or informal. This applies in particular in prices, specifications, certifications, subsidiary contracts, submission or non-submission of bids or any other actions to restrict competitiveness or to introduce cartelisation in the bidding process." 6. The learned Single Judge while dismissing the writ petitions, observed as follows:- "14. A reference to the Integrity Pact forming part of the tender documents is called for. The Integrity Pact is entered into between the ONGC and the respective tenderer before submission of tenders. Objective of the Integrity Pact is to maintain fairness and transparency in the bidding process. The learned Single Judge while dismissing the writ petitions, observed as follows:- "14. A reference to the Integrity Pact forming part of the tender documents is called for. The Integrity Pact is entered into between the ONGC and the respective tenderer before submission of tenders. Objective of the Integrity Pact is to maintain fairness and transparency in the bidding process. Section 2 of the Integrity Pact deals with commitment of the bidder/contractor. As per Section 2(1)(2), bidder/contractor will not enter with other bidders into any undisclosed agreement or understanding whether formal or informal. This applies in particular to prices, specifications, certifications, etc or any other actions to restrict competitiveness or to introduce cartelisation in the bidding process. As per Section 3, if the bidder commits a transgression before the contract is awarded through a violation of Section 2 or in any other form, such as, to put his reliability and credibility as a bidder into question, the Principal, i.e. tendering authority is entitled to disqualify the bidder from the tender process or to terminate the contract if already signed. 15. Adverting to the facts of the two cases, what is noticeable is that the two petitioners are independent bidders and they had responded to the same invitation of bids. However, since it was an e-tendering process, tenders were submitted online which require the bid documents to be digitally signed by an authorized person of the tenderer. It is seen that both the petitioners had authorized Shri Pradip Borbora as the authorised signatory. It transpires that Shri Pradip Borbora is the managing partner and authorized signatory of M/s. Uddipta Auto Service, petitioner in WP (C) No. 8603/2018 whereas his wife Smt. Dipti Borbora is a partner of M/s. Dhansiri Valley Oil Career, petitioner in WP (C) No. 8604/2018. Both had submitted independent tenders bidding for the same contract and both were represented by Shri Pradip Borbora. In such circumstances, it cannot be ruled out that bid value offered by the two petitioners were known to each other as Shri Pradip Borbora represented both the tenderers. If the bid prices offered by the bidders are known beforehand to each other, that would seriously impact purity of the tendering process. In such circumstances, if the tendering authority takes a view that there was collusion between the two bidders, such a view cannot be discarded as being arbitrary and unreasonable. If the bid prices offered by the bidders are known beforehand to each other, that would seriously impact purity of the tendering process. In such circumstances, if the tendering authority takes a view that there was collusion between the two bidders, such a view cannot be discarded as being arbitrary and unreasonable. It is well settled that in matters of contract or interference in contract, scope of judicial review is very limited. Even if a second or a different view is taken in judicial review that would not ipso facto make the initial decision of the primary authority illegal. No illegality, arbitrariness or unreasonableness is discernible in the impugned decision making." 7. Mr. Kakoti has submitted that authorized person and the bidder is not one and the same thing and to substantiate the submission, has drawn our attention to clauses 7.6 and 7.13 of the Instructions to Bidders. In that context, he has also referred to clause (1)(2) of Section 2 of the Integrity Pact. It is submitted by Mr. Kakoti that in any view of the matter, before opening of the Price Bids, rejection of the Techno-Commercial Bids was wholly unjustified. 8. Mr. Sahewalla supports the order under challenge and contends that when the bidder has put his reliability and credibility in question and when clause (1)(2) of Section 2 was violated, the authorities rightly disqualified the bidders. 9. Clause 7.6 of the Instructions to Bidders, primarily, provides that bids can be submitted only in the name of the bidder in whose name the bid documents had been purchased. Clause 7.13 provides that original bid should be signed manually by the authorised signatories of the bidder and that, bid including the prices must be written by the bidders in indelible ink. Clause 19.2, essentially, provides that along with the bid, adequate proof of the ability of the signatory to bind the bidder as a power of attorney holder or an authorised representative must be enclosed. In other words, a bid submitted by an authorised signatory will bind the bidder. Clause 9.1(e) provides that proforma of Integrity Pact, which is issued along with the bidding document, shall be returned by the bidder along with technical bid, duly signed by the same signatory who signs the bid, i.e. who is duly authorised to sign the bid. 10. In other words, a bid submitted by an authorised signatory will bind the bidder. Clause 9.1(e) provides that proforma of Integrity Pact, which is issued along with the bidding document, shall be returned by the bidder along with technical bid, duly signed by the same signatory who signs the bid, i.e. who is duly authorised to sign the bid. 10. In view of the clauses noted above, according to us, the expression bidder/contractor in clause (1)(2) of Section 2, necessarily takes within its fold the person, who had submitted the bid, which in a given case, may be the bidder himself or in any other case, the authorised representative or power of attorney holder. Therefore, we do not find much substance in the argument of Mr. Kakoti that when the expression "authorised signatory" is not found in clause (1)(2) of Section 2, invocation of the said clause is arbitrary. 11. Argument advanced by Mr. Kakoti that as price bids were not opened, the bid could not have been rejected at the state of consideration of techno- commercial stage is also misplaced. As the actions of the authorised signatory bind the bidder, it is only natural that he is aware of the price bids in both the bids. In that background, the observations of the learned Single Judge that if the bid prices offered by the bidders are known before hand to each other that would seriously impact purity of the tendering process, cannot be faulted with. 12. There is another aspect of the matter. In the writ petition in respect of M/s Uddipta Auto Service, Pradip Borbora had identified himself as Managing Partner and authorized signatory. However, in the bid document in respect of bidder's information, which is available at page-104, he had described the firm to be a proprietorship firm and had identified himself as the proprietor. On our query, Mr. Kakoti has produced before the Court the licence issued to M/s Uddipta Auto Service under the Assam Trade Articles (Licensing and Control) Order, 1982 and the said document reveals that, in fact, it is one Ms. Rumi Bhattacharjee (Das), who is the proprietor of M/s Uddipta Auto Service. 13. In view of the above discussions, we find no merit in these appeals and accordingly, the same are dismissed.