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2023 DIGILAW 2175 (RAJ)

K. S. Bhati Contractor Firm v. State Of Rajasthan

2023-12-04

ARUN BHANSALI, RAJENDRA PRAKASH SONI

body2023
JUDGMENT : ARUN BHANSALI, J. 1. This appeal is directed against the order dated 6.6.2023 passed by learned Single Judge in S.B. Civil Writ Petition 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 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. 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 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. 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 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. 20. 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. 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. 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. 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 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. 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. (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 nonmaterial, 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. 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 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.