TaxTMI 
TaxTMI 
2013 (3) TMI 540
X X X X Extracts X X X X
X X X X Extracts X X X X
....s were invited by the Chief Electoral Officer from the experienced and well established firms/concerns, whose representatives participated in the pre-bid meeting held on 28.06.2011, at Agartala, in response to the Letter of Interest(LOI) issued by the Election Department, Government of Tripura. 3. General terms and conditions of the NIT disclose that the tender would be a two bid system. One as "TECHNICAL BID" and the other "COMMERCIAL BID" and the intending tenderers were advised to submit their offers in two separate sealed envelops, namely, Technical Bid in Envelop-A, which should superscribe the word "TECHNICAL BID", and Commercial Bid in Envelop-B, which should superscribe the word "COMMERCIAL BID". The Envelop-A(Technical Bid) shall contain technical soundness, including other information relating to the Firm/Agency. 4. Envelop-B has to contain only price details (per annum for the entire period of three years, with the ink signature of the authorized signatory of the firm/agency, on all the pages of the commercial bid. In terms of the NIT, the technically qualified bids would be considered for opening of Commercial Bid, for evaluation and the decision by the Technical ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....itioner as well as respondent Nos.3 and 4 submitted technical bids as well as commercial bids tenders in response to the NIT dated 28.06.2011(annexure-P.3), however, except the petitioner herein, none of the other two tenderers submitted valid tenders. The respondent No.3, while submitting the tender in the name of "UTI Infrastructure Technology and Services Limited" submitted some papers issued and related to M/s Unit Trust of India Investor Services Limited and M/s UTI Technology Services limited, but such papers do not show any nexus and/or connection with the respondent No.3. All such documents submitted by and on behalf of the respondent no.3 are in the name of Unit Trust of India Investor Services Limited and in the name of UTI Technology Services Limited, which cannot be treated as valid documents on behalf of respondent No.3. 8. It has been contended on behalf of the petitioner that earlier correspondence as submitted by the said respondent No.3 also are in the name of the said Unit Trust of India Investor Services Limited and the UTI Technology Services Limited and no paper has been submitted to show that the tenderer, respondent No.3, had any relationship and/or nex....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed. 11. It has been stated on behalf of the petitioner that the said copy of ESIC Registration Certificate does not relate to the respondent No.3, instead it has been issued in favour of UTI Technology Service Ltd. So it is imperative that the respondent No.3 also did not submit any Employees State Insurance Registration in its name. The respondent no.3 also did not submit valid Trade License. And to satisfy the requirement of submission of Income Tax Return, respondent No.3 submitted a copy of Income Tax, for the year 2007-2008, 2008-2009 and 2009-2010 in the name of UTI Technologies Services Ltd. To meet the necessity of submission of audited balance sheet for the last three years, the respondent No.3 submitted unsigned copies of balance sheet for the year 2007-2008 and 2008-2009. Respondent No.3, however submitted one signed copy of balance sheet for the year 2009-2010, which is in the name of UTI Technology Services Limited and not in the name of the respondent No.3. . With regard to the experience in Election Commission's Project, the respondent No.3 instead of submitting any document referred that such experience certificate is not applicable(NA). In the profile, the re....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... alone satisfied the Technical Bid of the NIT. 16. The petitioner submitted that the respondent Nos.1 and 2, having laid down the norms in the NIT and also having stated that the norms as contained in the said NIT in the Technical Bid shall have to be strictly conformed to; breach thereof would render the defaulting tender liable to be rejected. None of the respondent Nos.1 and 2 can act in deviation and/or violation of the tender terms. 17. Respondent Nos.1 and 2 by filing affidavit denied and disputed anything contrary to or inconsistent with the official records maintained by the respondent Nos.1 and 2. 18. Learned counsel for respondent Nos.1 and 2 further submitted that the norms prescribed in the NIT were fulfilled by respondent No.3, namely the UTI Infrastructure Technology & Services Ltd., Belapur, Navi, Mumbai. On the other hand, due to shortcoming in some points the Technical Bid of respondent No.4 was considered but not accepted. It is contended on behalf of respondent Nos.1 and 2 that except the matter of notice inviting tender dated 28.06.2011, the statement of the petitioner regarding technical bid is not fact. In the NIT it was clearly mentioned in point ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....enderers were placed before the members of Technical committee, in its meeting held on 21.07.2011 in the chamber of the CEO, Tripura. The Technical Committee was constituted with the members of IT experts and with the approval of the State Government of Tripura, to evaluate the technical bids. The technical Committee has examined the papers of technical bids of the agencies and recommended for considering two agencies namely:- (i) UTI Infrastructure Technology and Service Ltd, Belapur, Navi, Mumbai and (ii) Ujjayanta Technologies Pvt. Ltd., Agartala, West Tripura as valid for opening commercial bid. The technical bid of INSYSSKY Softtech Pvt. Ltd., Teliamura, West Tripura i.e. respondent No.4 was not considered by the Technical Committee for failing to fulfill the conditions. Accordingly commercial bid of respondent No.4 was not opened. 21. As per the decision of the Technical Committee, the date for opening of Commercial Bid for the recommended agency was fixed on 27.07.2011 at 4:00 PM in the Chamber of the Joint Chief Electoral Officer, Govt. of Tripura, with due intimation to the petitioner as well as respondent No.3. But due to unavoidable circumstances, the meeting....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r the petitioner by drawing the attention of this Court to the Notification, issued by the State Government, constituting Technical Committee to examine and consider the Technical Bids, submitted that in the Technical Bids Committee meeting, held on 21.07.2011, submitted that the fifth member of the Committee was Sri D. Modak, Deputy Secretary, Finance Department, Government of Tripura, whereas in terms of the Notification, issued by the Government, the Joint Secretary, Finance Department, ought to have been one of the members of the Committee. 24. However, facts remain that the Committee considered the Technical Bids of three tenderers and cleared the Technical Bids of the petitioner as well as respondent No.3. More so, the petitioner did not raise any objection when the matter was assessed by the Technical Bids Committee. Though, apparently, one of the members was not a Joint Secretary, Finance Department, as indicated in the Notification aforesaid, there is no allegation of malafide against the member, who was present instead of Joint Secretary, in terms of the Notification issued by the Government. But the petitioner did not allege any prejudice or malafide against the Deput....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ructure Technology & Services Limited' vide SRNA 90140013 dated 24.08.2010, Department of Companies Affairs, New Delhi. On 20.07.2011, the Company Manager of UTI Infrastructure Technology & Service Limited, respondent No.3 certified the status of the company. In this regard, the Company Manager sent a letter to the Joint Chief Electoral Officer, Election Department, Government of Tripura, Agartala. It is further stated on behalf of the petitioner that the UTI Technology & Services Ltd. is a Government of India Company under the aegis of Ministry of Finance, for providing services to the Financial and Government Sectors of India. Therefore, no trade licence is required for doing business in India. 27. It has been further stated on behalf of the respondent No.3 that the UTI Infrastructure Technology & Services Ltd. is a hundred percent Government owned Company under the Ministry of Finance, which provides technology and outsourcing services in the financial and government sectors in India, and respondent No.3 is also an ISO certified company and CMMI level 3 appraised company with its own ultra modern data center at Navi Mumbai and the company has been assisting the Govt. of India....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n-fulfillment of the requirement results in rejection of the tender, then it would be an essential part of the tender otherwise it is only a collateral term." Hence, if on the recommendation of the Tender Committee, the accepting authority did not find the deviation from Clause (ii) of the Note by Ion Exchange very material and has accepted the offer of Ion Exchange, the Division Bench of the High Court could not have held that Ion Exchange committed a breach of an essential term by not mentioning the excise duty amount in rupees in its offer." 31. In Directorate of Education v. Educomp Datamatics Ltd., (2004) 4 SCC 19, Hon'ble Supreme Court re-affirmed the principle again restated in Monarch Infrastructure (P) Ltd. v. Commr., Ulhasnagar Municipal Corpn.(supra) and held that the terms and conditions in the tender are prescribed by the Government bearing in mind the nature of contract and in such matters the authority calling for the tender is the best judge to prescribe the terms and conditions of the tender. 32. The Apex Court in Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405,made it clear that when a statutory functionary makes an order based on certain g....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e law that regulates his decision-making power and he must give effect to it otherwise it may result in illegality. The principle of "judicial review" cannot be denied even in contractual matters or matters in which the Government exercises its contractual powers, but judicial review is intended to prevent arbitrariness and it must be exercised in larger public interest. Expression of different views and opinions in exercise of contractual powers may be there, however, such difference of opinion must be based on specified norms. Those norms may be legal norms or accounting norms. As long as the norms are clear and properly understood by the decision-maker and the bidders and other stakeholders, uncertainty and thereby breach of the rule of law will not arise. The grounds upon which administrative action is subjected to control by judicial review are classifiable broadly under three heads, namely, illegality, irrationality and procedural impropriety. In the said judgment it has been held that all errors of law are jurisdictional errors. One of the important principles laid down in the aforesaid judgment is that whenever a norm/benchmark is prescribed in the tender process in order t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is that the estoppel must concern an existing state of facts. There is no common law estoppel founded on a statement of future intention. The doctrine of promissory estoppel is applied to cases where a promiser has been estopped from acting inconsistently with a promise not to enforce an existing legal obligation. This doctrine differs from estoppel properly so called in that the presentation relied upon need not be one of present fact. The second requirement of an estoppel by conduct is that it should be unambiguous. Finally, an estoppel cannot be relied on if the result of giving effect to it would be something that is prohibited by law. Estoppel is only a rule of evidence. One cannot found an action upon estoppel. Estoppel is important as a step towards relief on the hypothesis that the defendant is estopped from denying the truth of something which he has said. 38. In Dawson's Bank Limited v. Nippon Menkwa Kabushiki Kaisha3 the distinction between estoppel and waiver was explained by stating that estoppel is not a cause of action, but waiver is contractual and may constitute a cause of action. The reason stated there is that waiver is an agreement to release or not to ass....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the timely fulfillment of the contract so that the services become available to the public expeditiously. (4) The public would also be interested in the quality of the work undertaken or goods supplied by the tenderer. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in redoing the entire work - thus involving larger outlays of public money and delaying the availability of services, facilities or goods, e.g., a delay in commissioning a power project, as in the present case, could lead to power shortages, retardation of industrial development, hardship to the general public and substantial cost escalation. 42. Where there is an allegation of mala fides or an allegation that the contract has been entered into for collateral purposes and the court is satisfied on the material before it that the allegation needs further examination, the court would be entitled to entertain the petition. But even here, the court must weigh the consequences in balance before granting interim orders. 43. In Raunaq International Ltd. v. I.V.R. Construction Ltd.,(supra), the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton7 (AC at p. 761), Lord MacDermott observed: (All ER p. 14 C-D) 'The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge, ...' 10. In Home Office v. Dorset Yacht Co. Ltd.8 Lord Reid said, 'Lord Atkin's speech ... is not to be treated as if it were a statutory definition. It will require qualification in new circumstances.' (All ER p. 297g) Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2)9, observed: (All ER p. 1274d) 'One mu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce operation would be essential. In the call letter also which was sent to the appellant at the time of calling him for interview, the aforesaid criteria was reiterated and spelt out. Therefore, no minimum benchmark or a new procedure was ever introduced during the midstream of the selection process. All the candidates knew the requirements of the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office operation. Knowing the said criteria, the appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction." 46. In Meerut Development Authority v. Association of Management Studies, (2009) 6 SCC 171, Hon'ble Supreme Court held that a tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated it must be unconditional; must be in the proper form, the person by whom tender is made must be able to an....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and not of the State Bank clause 6 of the tender notice was not obeyed literally, but the question is as to whether the said noncompliance deprived the Diesel Locomotive Works of the authority to accept the bid. As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories - those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases. This aspect was examined by this Court in C.J. Fernandez v. State of Karnataka a case dealing with tenders. Although not in an entirely identical situation as the present one, the observations in the judgment support our view. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the court can examine the decision making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... them. Thus, if a party does not strictly comply with the requirements of para III, V or VI of the NIT, it is open to the KPC to decline to consider the party for the contract and if a party comes to court saying that the KPC should be stopped from doing so, the court will decline relief. The second consequence, indicated by this Court in earlier decisions, is not that the KPC cannot deviate from these guidelines at all in any situation but that any deviation, if made, should not result in arbitrariness or discrimination. It comes in for application where the non-conformity with, or relaxation from, the prescribed standards results in some substantial prejudice or injustice to any of the parties involved or to public interest in general. For example, in this very case, the KPC made some changes in the time frame originally prescribed. These changes affected all intending applicants alike and were not objectionable. In the same way, changes or relaxations in other directions would be unobjectionable unless the benefit of those changes or relaxations were extended to some but denied to others. The fact that a document was belatedly entertained from one of the applicants will cause su....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ered the requirement of deposit of bank draft Rs.90,000/- as a technical defect and ignored it as merely ancillary or subsidiary, as a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every such term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance for carrying out the contract. 59. In Indian Railway Construction Co. Ltd. v. Ajay Kumar: (2003)IILLJ150SC, the Apex Court explained as to what would amount to bad faith and non-application of mind in regard to exercise of power on the part of the employer. It further opined that the burden would be on the person, who seeks to invalidate or nullify the act or order to prove charge of bad faith and abuse or mistake by the authority of its power. It opined that an attempt should be made to balance the conflicting interest. 60. In Delhi Development Authority and Anr. v. UEE Electricals Engg. (P) Ltd. and Anr.: AIR 2004 SC 2100, the Apex Court was considering a case where conduct of the Director of the company was found to be relevant. However, the Court opined that if the Authority felt that....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s not in dispute before us that there are only a few concerns in India who can handle such a large quantity of coal. Transportation of coal from various collieries to the thermal power stations is essential. For the said purpose, apart from transportation job, the contractor is required to see that coal of appropriate grade is supplied. Appellant herein is in business for the last 52 years. It had been taking part in contracts involving similar jobs in various parts of India. It had all along been quoting a low rate. According to it, despite the same it has been generating profits. 63. In STERLING COMPUTERS AIR 1996 SC 51 case, the Supreme Court observed as follows: "Public authorities must have the same liberty as they have in framing the policies, even while entering into contracts because many contracts amount to implementation or projection of policies of the Government. In contracts having commercial element, some more discretion has to be conceded to the authorities giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms, so that they may enter into contracts with persons, keeping an....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... be basic in nature and after an objective consideration of different options available taking into account the interest of the State and the public; then Court cannot act as an appellate authority by substituting its opinion in respect of selection made for entering into such contract. But at the same time the Courts can certainty examine whether "decision-making process" was reasonable, rational, not arbitrary and violative of Article 14. Once the procedure adopted by an authority for purpose of entering into a contract is held to be against the mandate of Article 14, the Courts cannot ignore such action saying that the authorities concerned must have some latitude or liberty in contractual matters and any interference by Court amounts to encroachment on the exclusive right of the executive to take such decision. 66. In W.B. State Electricity Board v. Patel Engg. Co. Ltd.,(2001) 2 SCC 451, the Apex Court held as follows : "It is essential to maintain the sanctity and integrity of process of tender/bid and also award of a contract. The appellant, Respondents 1 to 4 and Respondents 10 and 11 are all bound by the ITB which should be complied with scrupulously. In a work of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... are commercial considerations, which would include, inter alia, the price at which the party is willing to work, whether the goods or services offered are of the requisite specifications and whether the person tendering is of ability to deliver the goods or services as per specifications. 69. The law relating to award of contract by State and public sector corporations was reviewed in Air India Ltd. v. Cochin International Airport Ltd. 2000 (2) SCC 617 and it was held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It was further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process, the Court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... from giving a clarification. "What's in a name? That you call arose by any other name would smell as sweet." (William Shakespeare,). The paramount consideration for the respondent state is the capacity of the tenderer to do the work entrusted, efficiently and within the prescribed time limit on a competitive price. The technical committee evaluated and assessed the capability of both the parties and accordingly approved both petitioner and respondent No.3, for opening of the commercial bid. In my considered opinion, it would not be apposite for this court to re-examine and re-evaluate the Technical bid submitted by the respondent no.3. Different criteria fixed by the Technical committee and examined in terms of their own requirement is job of an expert, which this court is not competent to do. It is apparent from the resources on record that there was no hidden agenda of the Technical Committee. If the technical committee would have been biased, it would not have approved the petitioner in the technical Bid. Therefore, I do not discern biasness in the action of the Technical Committee. In the commercial bid the respondent No.3 quoted: Rs.4,62,000/- (service Tax extra) and the peti....