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2025 DIGILAW 1939 (JHR)

SMCC-SSC (JV) v. Bharat Coking Coal Limited

2025-09-22

RAJESH SHANKAR, TARLOK SINGH CHAUHAN

body2025
JUDGMENT : Tarlok Singh Chauhan, C.J. 1. The instant writ petition has been filed for grant of the following reliefs:- (i) For quashing/setting aside the decision of the respondent BCCL dated 07.06.2025 (Annexure-4/1) vide which the said respondent has in a most arbitrary, unreasonable and illegal manner, declared the technical bid of the petitioner as Disqualified during the technical evaluation of the bids on the erroneous ground that the Undertaking submitted by the petitioner was not as per Annexure-IX of bid document as well as per clause 3.1 (p) of the Instructions to bidder as because in point no. 4 of the Undertaking submitted by the petitioner the names of the authorized representatives of both the partners were mentioned instead of the names of the partners which is out and out illegal and unlawful in view of the fact that such omission/error cannot be ground for disqualification of the technical bid in terms of Clause 19.2 (II) (H) which clearly states that if the confirmatory documents do not change eligibility status of the bidder in connection to his submitted information, then his bid will be accepted for opening of price bid and also on account of the fact that the said wrongful decision of the respondents costs huge loss to the State exchequer as because the petitioner had quoted the rate at 11.64% lower than the respondent no. 4 which is thoroughly not in public interest apart from being violative of Article 14 of the Constitution of India so far the petitioner is concerned. (ii) For further issuance of appropriate writ/order/direction, including Writ of Mandamus, directing the Respondent- authorities to declare the petitioner as technically responsive and thereafter open the financial bid of the petitioner in respect to the e-Tender Notice No. H- HEMM-95/E-Tender/2024/3135-3181 dated 14.12.2024 (as contained in Annexure-1) as the petitioner’s bid is about 11.64% lower than that of the respondent no. 4 and to further direct the respondents to allot the work and execute agreement with the Petitioner in respect of the aforesaid work. 2. 4 and to further direct the respondents to allot the work and execute agreement with the Petitioner in respect of the aforesaid work. 2. The undisputed facts of the case are that Respondents 1 to 3 had invited an e-tender vide NIT No.BCCL/CMC/H-HEMM/95/e- Tender/2024/3135-3181 dated 14.12.2024 for execution of the work of “Hiring of HEMM for removal of Over Burden & Extraction and Transportation of coal and Jhama from XV, XIV, XIII, XII and XI seams with fire-fighting of dumped loose Over Burden of Hired HEMM Patch Phase-IV of Kendwadih Colliery, PB Area, BCCL”. 3. Pursuant to the said Notice Inviting Tender, 14 bidders participated in the Tender Process. 4. During technical evaluation of the bids, as per the provisions of the NIT/Tender Document the petitioner was asked to submit properly filled up copy of undertaking as per format given in Annexure-IX for Buyer Added specific ATC and shortfall document through GeM Portal. 5. However, the petitioner did not respond to the said notice within the stipulated time and, therefore, the Techno Commercial Assessment and evaluation of Technical Bid Cover-I was undertaken wherein the bid of the petitioner was not accepted and the petitioner was declared technically disqualified on account of following reasons:- (i) Public Procurement (Preference to Make In India) for local supplier (Annexure-IX-A) as per Clause 3.1 (r) Buyer Added Bid Specific ATC (Instructions to Bidders), document was not found in order. (ii) Undertaking as per IX of Bid Document in conformity with Clause 3.1(p) of the Buyer Added Bid Specific ATC (Instructions to Bidders) (Document not found in order). 6. The petitioner thereafter made a representation admitting therein that the petitioner could not provide clarification sought within the stipulated time since the email account on which the email from the respondents was sent could not be accessed by them at that time as their representative responsible for accessing concerned email was required to go on an urgent overseas travel. The petitioner had sent this email on 10.06.2025, whereas, the bid of the petitioner was already rejected on 07.06.2025 and accordingly the representation of the petitioner was rejected. 7. The petitioner had sent this email on 10.06.2025, whereas, the bid of the petitioner was already rejected on 07.06.2025 and accordingly the representation of the petitioner was rejected. 7. Additionally, it has come on record in the reply of the respondents that the UIDN Number mentioned in the Certificate of the Chartered Accountant in Form IX-A did not correspond the UIDN Number in the said certificate, rather corresponded to two other certificates, namely, working capital as on 31.11.2024 and a certificate regarding non-requirement of GST Registration for Joint Venture. 8. For completion of facts, it needs to be mentioned that after filing of the instant writ petition, an interim order staying all further proceedings including the letter of acceptance dated 12.06.2025 issued by the 1 st respondent to the 4 th respondent was passed by this Court. However, after filing of the counter affidavit as well as an Interlocutory Application, the said order was vacated vide order dated 08.08.2025 and the case was ordered to be listed for final hearing on 26.08.2025. The said order dated 08.08.2025 came to be challenged by the petitioner before the Hon’ble Apex Court in Special Leave Petition (Civil) No.23155 of 2025 and the same was disposed of by the Hon’ble Supreme Court vide order dated 22.08.2025 in the following manner:- “1. Heard learned senior counsel appearing for the parties. 2. We are not inclined to interfere with the impugned order in view of the fact that the High Court has directed the writ petition to be taken up on 26.08.2025. 3. The Special Leave Petition is, accordingly, dismissed. 4. We hope that the writ petition will be taken up and disposed of as expeditiously as possible. 5. Needless to say that the rights and liabilities of the parties will be subject to the outcome of the writ petition. 6. Pending interlocutory application(s), if any, is/are disposed of.” 9. It is vehemently argued by Mr. Ajit Kumar Sinha, learned Senior Counsel appearing for the petitioner, that the action of the respondents is completely arbitrary and malicious whereby they have rejected the bid of the petitioner at the technical stage itself and have now invented a reason to somehow justify their action. It is vehemently argued by Mr. Ajit Kumar Sinha, learned Senior Counsel appearing for the petitioner, that the action of the respondents is completely arbitrary and malicious whereby they have rejected the bid of the petitioner at the technical stage itself and have now invented a reason to somehow justify their action. This, according to him, would be clearly evident from the fact that initially the petitioner was asked to submit properly filled up format Annexure-IX and as Point No.4 of the submitted Annexure-IX, the petitioner has mentioned the names of authorized representatives of both the partners of JV, however, the names of partners of JV were required to be mentioned. Later on, the 2 nd reason assigned for rejection of the bid of the petitioner at the time of the technical evaluation is entirely different and in the show-cause notice issued to the petitioner, the same substituted by the following comments:- “1. Public Procurement (Preference to Make in India) for Local Supplier Annexure IX A As per clause 3.1 (r) Buyer Added specific ATC (Instruction to Bidder), document not found in order. 2. Undertaking as per Annexure IX of Bid Document. As per Clause 3.1 (p) Buyer Added specific ATC (Instruction to Bidder), document not found in order.” whereas, subsequently, the 3 rd reason, which has now been assigned for the first time that too in the counter affidavit, is that the UIDN Number mentioned in the Certificate of the Chartered Accountant in Format IX-A did not correspond the UIDN Number in the said certificate, rather corresponded to two other certificates namely working capital as on 31.11.2024 and a certificate regarding non-requirement of GST Registration for JV. 10. Mr. Sinha has further argued that taking the case of the respondents at its best, the undertaking as given as per Annexure-IX of the bid document was originally given at Annexure-5 by Shri Sachin Choudhary and Shri Manmohan Dahiya, partners of the petitioner- Company, but it was an undertaking given by the Power of Attorney Holders of the JV; and on the pretext that in para-4 instead of the individual names, the names of the partners of the JV were not mentioned, even then this was not a substantial defect as per Clause 19.2 (II) (H) of the Bid Document whereby the petitioner could have been disqualified. 11. 11. It has been contended by the petitioner that Local Content Certificate as per Annexure 6 signed by the Chartered Accountant was actually submitted in time, but merely stating that “it is not in order” without mentioning why it is not in order, could not have led to the disqualification of the petitioner. 12. On the other hand, it is vehemently urged by Mr. Anupam Lal Das, assisted by Mr. Amit Kumar Das, learned counsels appearing for respondent nos.1 to 3, and Mr. Shailesh Kumar Singh, learned counsel appearing for respondent no.4, that the respondents have acted strictly as per law by adhering to the tender conditions and, therefore, the petition, which sans merits, be dismissed with costs. 13. At the outset, the Court needs to set out the settled principles which a writ Court has to bear in mind while dealing with contractual matters in exercise of its writ jurisdiction and the same are as follows:- (i) there has to be judicial restraint in review of administrative action; (ii) writ court is not court of appeal; it cannot review decision but only decision-making process; (iii) courts do not have the necessary expertise to correct such technical decisions; (iv) employer must have freedom to take decisions within certain limits; (v) if decision is bona fide and in public interest, superior courts should refrain from exercising judicial review; (vi) mere disagreement with decision-making process or decision of administrative authorities no ground for interference; and (vii) if action suffers from mala fides or intention to favour someone or arbitrariness or perversity, then constitutional court can interfere with decision-making process. 14. In order to appreciate the contentions of the petitioner, it shall be apt to reproduce Clause 19.2 (II) (H) of Bid Document, which reads as under:- “H. In case Bidder(s) fails to confirm the submitted information(s)/declaration(s) by the submitted documents as (B) above, their/his bid shall be rejected; however, if the confirmatory documents do not change eligibility status of the Bidder in connection his submitted information(s) / declaration(s), then his/their bid will be accepted for opening of Price Bid.” 15. According to Mr. Sinha, in terms of the aforesaid Clause, once the documents have been uploaded, then the confirmatory documents, which do not change the eligibility status of the bidders, have to be accepted and cannot form the basis of rejection of the bid of the petitioner. 16. According to Mr. Sinha, in terms of the aforesaid Clause, once the documents have been uploaded, then the confirmatory documents, which do not change the eligibility status of the bidders, have to be accepted and cannot form the basis of rejection of the bid of the petitioner. 16. However, we find no merit in this contention, because Clause 19.2 (II) (B) of Bid Document, which deals with the evaluation of tender clearly provides as under:- “B. In case the Tender Committee finds that there is some deficiency in uploaded documents corresponding to the information furnished in Bid Submission Confirmation Sheet or in case corresponding document have not been uploaded by Bidder(s) then the same will be specified online by Evaluator clearly indicating the omissions/ shortcomings in the uploaded documents and allowing 7 days (7 x 24 hours) time for online re- submission by Bidder(s). Additionally, information shall also be sent by system generated email and SMS, but it will be the Bidder's responsibility to check the updated status/information on GeM Portal regularly after opening of bid. No separate communication will be required in this regard. Non- receipt of e-mail and SMS will not be accepted as a reason of non-submission of documents within prescribed time. The Bidder(s) will upload the scanned copy of all those specified documents in support of the information/ declarations furnished by them in Bid Submission Confirmation Sheet within the specified period of 7 days. No further clarification shall be sought from Bidder.” 17. It is not in dispute that at the time of evaluation, the Tender Committee had found some deficiencies in the uploaded documents of the petitioner in the Bid Submission Confirmation Sheet and the same was specified online by Evaluator in the following terms:- “You are required to submit properly filled up Annexure IX as point no. 4 of submitted Annexure-IX. Bidder has mentioned name of Authorized representative of Both the Partners of JV, however, names of Partners of JV is required to be mentioned. (that shall be valid at the time of bid submission). (Read less)” 18. 4 of submitted Annexure-IX. Bidder has mentioned name of Authorized representative of Both the Partners of JV, however, names of Partners of JV is required to be mentioned. (that shall be valid at the time of bid submission). (Read less)” 18. It is also not in dispute that the petitioner in terms of the Bid Document was granted 7 days (7 x 24 hours) time for online re- submission on 23.05.2025, but, the same admittedly was not re- submitted within the aforesaid timeframe and the shortfalls came to be rectified much later only on 10 th of June 2025, despite the fact that the Bidders have been forewarned to “keep looking into the Portal” and the bid of the petitioner already stood rejected on 7 th June, 2025. 19. As observed earlier, it is not at all in dispute that the undertaking as per Annexure-IX of the Bid Document given at Annexure-5 by Shri Sachin Choudhary and Shri Manmohan Dahiya, partners of M/s SMCC- SSC (JV)/petitioner, was, in fact, an undertaking given by the Power of Attorney Holders of the Joint Venture, which by any standards cannot be considered to be even a remote compliance for which the undertaking had been sought. After all, the individual undertaking cannot bind the partners. 20. Mr. Sinha would, however, argue that the petitioner submitted the affidavit in the Performa as prescribed by Annexure-IX of the Tender Document on the letter-head of M/s SMCC-SSC (JV)/petitioner, which was signed by the legal attorney Shri Manmohan Dahiya of M/s SMCC- SSC (JV) and all partners of Joint Venture, therefore, the petitioner had complied with the tender conditions. 21. It needs to be noticed that Tender Committee had duly noted in Clause 4 of the said undertaking that the Bidder had mentioned the names of authorized representatives of both the partners of the JV, but it were the names of the partners that were required to be mentioned therein. 21. It needs to be noticed that Tender Committee had duly noted in Clause 4 of the said undertaking that the Bidder had mentioned the names of authorized representatives of both the partners of the JV, but it were the names of the partners that were required to be mentioned therein. It was for this precise reason that in terms of Clause 19.2 (II) (B) of the Buyer Added Bid Specific ATC (Instructions to Bidder) of the Tender Document, the petitioner was called upon to submit the document in a properly filled up format in the manner prescribed in Annexure-1 within a period of 07 days, but the petitioner, as already observed, despite opportunity, did not even care to respond to the said notice within the stipulated time and obviously in such circumstances, the respondents are well within their right to have disqualified the petitioner during the technical evaluation of the bids. 22. Apart from the above, the reason given by the petitioner for non- submission of the document in a properly filled up format within 07 days on account of their representative responsible for accessing concerned email account having gone on an urgent overseas travel cannot be accepted given the fact that accessing email account and thereafter submitting the document do not require any expertise at least so far as the petitioner is concerned which is a Company which has participated in a tender relating to several hundreds of crores and has quoted the price of Rs.719,73,74,476.00. Clearly, such reason set out by the petitioner is nothing but a cock and bull story which cannot be believed much less accepted. 23. Mr. Sinha also argued that the action of the respondents is mala fide, as the petitioner’s representative who was responsible for accessing the concerned email account was required to go on an urgent overseas travel and, therefore, it could not provide the information sought within the stipulated time. Yet, the respondents rejected the bid of the petitioner only in this ground. 24. Yet, the respondents rejected the bid of the petitioner only in this ground. 24. In this regard, it is suffice to say that the petitioner has none else to blame but itself, as, it is well settled that the owner or employer of a project having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents and the constitutional courts must defer to this understanding and appreciation of the tender documents by the employer, 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. 25. Even otherwise it is more than settled that there can be two ways by which a case of mala fides can be made out; one that the action which is impugned has been taken with the specific object of damaging the interest of the party and, secondly, such action is aimed at helping some party which results in damage to the party alleging mala fides. There is no allegation in the pleadings that the case falls within the first category but an inference of mala fides has been sought to be drawn in the course of a vague pleading that the respondents were determined to oust the party from consideration of the tender. 26. No doubt, it is open to the court to go into the question of mala fides raised by a litigant but in order to succeed, much more than a mere allegation is required. We have, as stated above, already concluded that there is no material or details of mala fides have come on record. This Court would, therefore, even be precluded from going into the question of mala fides. 27. It is the further contention of the petitioner that the main reason to disqualify the petitioner given in the first notice was only to the following effect:- “You are required to submit properly filled up Annexure IX as point no. 4 of submitted Annexure-IX. Bidder has mentioned name of Authorized representative of Both the Partners of JV, however, names of Partners of JV is required to be mentioned. 4 of submitted Annexure-IX. Bidder has mentioned name of Authorized representative of Both the Partners of JV, however, names of Partners of JV is required to be mentioned. (that shall be valid at the time of bid submission). (Read less)” 28. Thereafter, the reason given in the 2 nd show-cause notice was altogether different from the first notice which was as under:- “1. Public Procurement (Preference to Make in India) for Local Supplier Annexure IX A As per clause 3.1 (r) Buyer Added specific ATC (Instruction to Bidder), document not found in order. 2. Undertaking as per Annexure IX of Bid Document. As per Clause 3.1 (p) Buyer Added specific ATC (Instruction to Bidder), document not found in order.” 29. Yet again, the third reason that has cropped up only in the counter affidavit filed by Respondents 1 to 3 is with regard to the UIDN Number which only indicates that the respondents were determined to oust the petitioner on one pretext or other. 30. Even this submission is without any substance, given the fact that the petitioner has failed to comply with the mandatory conditions of the Tender Document by not submitting a properly filled up undertaking as per the format given in Annexure-IX of Tender Document and the shortfall documents of the Tender Document within the stipulated time, as admitted by the petitioner itself. This by itself is a sufficient reason to disqualify the petitioner even if the other reasons are ignored. 31. The further contention of the petitioner that the conditions of the Tender Document on the basis of which the petitioner has been disqualified were directory cannot be accepted, for the simple reason that the petitioner was granted 07 days’ time to rectify the defects as per the Tender Document, but the petitioner has failed to do so within the stipulated time. Therefore, in such circumstances, it can, by no stretch of imagination, be held that the conditions of tender with regard to the affidavit in Appendix-IX for which time for re-submission of documents was granted is not mandatory even after non-compliance by the petitioner and is only directory. 32. For the reasons stated above, we do not find any merit in this writ petition which is, accordingly, dismissed, leaving the parties to bear the costs. 33. Pending application(s), if any, shall also stand disposed of.