TaxTMI 
TaxTMI 
TaxTMI 
2016 (10) TMI 1082
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....ns To Bidders" (ITB) which contain clauses as to how the proposal shall be conducted. Clause 6.3.1 of ITB deals with Preliminary Examination of Techno-Commercial Proposals. We think it appropriate to reproduce the same:- "6.3.1 Preliminary Examination of Techno-Commercial Proposals: (a) OWNER will examine the Project Proposals to determine whether they are complete, whether required securities have been furnished, whether the documents have been properly signed and whether the bids are generally in order. (b) Prior to the detailed evaluation, OWNER will initially determine whether each Techno Commercial Proposal is of acceptable quality, is generally complete and is substantially responsive to the bidding documents. For purposes of this determination, a substantially responsive Proposal is one that conforms to all the terms, conditions and specifications of the bidding documents without material deviations, objections, conditionalities or reservations. A material deviation, objection, conditionality or reservation is one (i) that affects in any substantial way the scope, quality or performance of the contract; (ii) that limits in any substantial way, inconsistent with the bid....
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....irement at clause 7.1.2(b)." 4. At this stage, it is necessary to refer to Notes appended to Clause 7.3.3 that deals with route-3. Notes are as under:- "i. The word "operated" means that the Bidder should have performed the necessary activities of drilling, excavation, hauling etc. on its own or through sub-contracting. ii. The word "developed" means that the Bidder should have performed the necessary activities of Land Acquisition/assisted in Land Acquisition, Statutory clearances/assisted in Statutory clearances and carried out 'Infrastructure development' on its own or through sub-contracting." 5. Chapter 9 of the ITB deals with Evaluation Methodology for Techno- Commercial Proposal (Qualification Proposal and Technical Proposal). Clause 9.1 deals with Evaluation of Qualification Proposal and Clause 9.2 deals with Evaluation of Technical Proposal. They read as under:- "9. Evaluation Methodology for Techno Commercial Proposal (Qualification Proposal and Technical Proposal) 9.1 Evaluation of Qualification Proposal: The Techno-Commercial Proposal shall be scrutinized to establish "responsiveness" as per Clause 6.3.1. The Responsive Techno-Commercial Proposal shall be ....
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....l of the Bidder meets the following criteria. (a) Time Schedule to Achieve First Year Coal Production Target - NTPC shall evaluate the PERT chart submitted by the Bidder, to determine its completeness; reasonableness; and achievability. (b) Adequacy of the Equipment Plan - The Bidder shall submit an equipment plan giving details of the equipment that shall be used by the Mine Operator to provide Mining Services which shall be not less than the Minimum Equipment to be deployed as specified by NTPC at Schedule 6 of Project Agreement. NTPC shall evaluate the adequacy of equipment to meet the criteria imposed by NTPC in terms of quantity of production, quality of coal produced etc." [emphasis supplied] 7. The controversy in the instant case basically pertains to whether the appellant meets the qualification criteria as provided under the heading Technical Criteria that occurs in Clauses 7.1 and 7.2 of QR. To appreciate the same, it is essential to have a look at the bid submitted by the appellant. The appellant had uploaded the proposal on 26.4.2016 by referring to three mines in support of its stand to meet the QR. The three mines that have been referred to in the proposal are ....
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.... of Other non cash expenses in Million for calculating Annual Cash Accrual for three year viz. 2013-14, 2014-15 & 2015-16 2.0 It is requested that the requisite information along with necessary documents be furnished to us at the earliest, preferably by 24.05.2016. 3.0 It may please be noted that seeking the above clarifications should not be construed that the bid submitted by you is considered techno commercially responsive and/or meeting the Qualification requirements (QR)." 9. The response that was given by the appellant on 21.5.2016 is to the following effect:- "A) Para 1.0 (i) of your above letter against QR of Clause 7.1.2 of ITB: We are attaching the followings: a) A certificate from GMDC (client of our Lignite Project at Mata No Math) Vide No.GMDC/MMLG/298/2016-17 dated 18.05.2016 mentioning our scope on this Turnkey Project which includes activities of Mine Planning, Quality Control, Drilling, Ripping, Dust suppression, Nala Diversion, preparation of Garland drain, dewatering of Monsoon and seepage water, preparation and monitoring of haul road for better hauling as required to complete the mining process. b) Certificates from Northern Coalfields Ltd. (NCL)and ....
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.... Burden (1109.00) Lac CUM Lignite (148.00) Lac MT Contract Period 28.01.2014 to 27.01.2019 The scope of Project is to carry out mining operation on Turnkey basis comprising of removal of over burden, inter burden and lignite and/or loading from mines faces using hydraulic showel and dumper combination and other activities like Mine Planning, Quality control, Drilling, Ripping, Dust suppression, Nala Diversion, preparation of Garland drain, dewatering of Monsoon and seepage water, preparation and monitoring of haul road for better hauling etc. as required to complete the mining process. Quantities Executed (year-wise) by M/s. Montecarlo Limited are shown below: Sr. No Period Over Burden Removal (cum) Lignite Dispatched (MT) Total Work Done Amount (Rs.) 1 28.01.2014 To 31.03.2014 18,24,674.03 7,64,791.18 33,59,23,240. 00 2 01.04.2014 To31.03.2015 1,37,54,520.76 32,10,961.46 135,57,06,364.00 3 01.04.2015 To 31.03.2016 1,45,66,445.2 13,68,861.67 55,38,02.,253.00 M/s. Montecarlo Limited successfully carried out Dewatering of Mine. Year wise details are shown for dewatering by deploying high capacities of Diesel and Electrical operated pum....
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....ot really concerned with Clause 7.1. The centrality of controversy hinges on the interpretation to be placed on Clause 7.1.2. It is submitted by Mr. Chidambram, learned senior counsel appearing for the appellant that the appellant satisfied the condition as postulated in the QR under Clause 7.1.2 (a) and Clause 7.1.2 (a) stipulates that 23 Million BCM of aggregated volume of overburden and/or coal/lignite from a maximum of seven open cast mines of coal/Lignite, in any year and clause 7.1.2. (b) lays down that at least 11.5 Million BCM of composite volume of overburden and coal/lignite from single open cast mine in any year, out of which at least 3 million tones shall be coal/lignite. Learned senior counsel would lay emphasis on the documents which the appellant had filed to show that it had operated and produced from single mine 11.5 Million BCM of composite volume of overburden and coal/lignite from single open cast mine in a year. Mr. Singh, learned senior counsel resisting the said stance would urge that the appellant does not satisfy the condition of drilling as is required under the QR regard being had to the nature of work. In this context, we may usefully take note of the de....
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....plosives, as per Indian Explosives Act (i) Drilling and blasting (j) Construction and maintenance of wokshops, stores etc as per the requirement. (k) Construction, Operation and maintenance of complete power supply system. (l) Mine illumination as per prevalent laws (m) Arrangement of petrol/diesel, oil and lubricants. (n) (if applicable) control any spontaneous combustion on Site (o) Conduct advance infill drilling. (p) OB dump management including rehandling of internal dump as per Environmental Clearance. (q) Progressive mine closure with effective land reclamation plan in accordance with approved mine closure plan. The Mine Operator shall submit to the Owner the annual financial statement of cost incurred towards progressive mine closure activities duly certified by National Environmental Engineering Research Institute (NEERI) or Central Mine Planning & Design Institute Limited (CMPDIL) or any other institute as may be notified by the Government for these purpose to an acceptable level by the Coal Controller. (r) POL Store shed (s) Development of Power Supply Distribution System beyond 33KV switchgear breaker terminals of Darlipalli STPP for various equipm....
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....rovide equipment to suit the varying thickness of the seams and partings which must be mined. (m) The Owner may instruct the Mine Operator to maintain an overburden or inter burden cover over in-pit coal inventory prior to mining. (n) If, during the excavation or overburden, any coal is found, the Mine Operator shall inform the Owner and seek instructions before proceeding. Overburden shall be hauled and placed in areas as shown in the Mining Plan. (o) Reject coal placed in overburden or inter burden dumps shall be buried in 5 meter lifts and compacted to ensure no ingress of air which could cause spontaneous combustion. The Mine Operator shall be required, at its own expense, to dig out, compact and replace any smouldering dump area. (p) Placement of overburden shall be carried out with due regard to water run off, final topography, and long term ground stabilization. (q) Any erosion or land slip in areas of placed materials shall be rectified by the Mine Operator at its own expense." 16. Clause 5.7.2. deals with drilling and blasting. It is as follows:- "5.7.2. Drilling & Blasting Crawler-mounted pneumatically operated down the hold drilling rigs are capable to meet ....
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.... which have been entered into by the public bodies or the State. Courts have inherent limitations on the scope of any such enquiry. 18. In Tata Cellular (supra) a three-Judge Bench after referring to earlier decisions culled out certain principles, namely, (a) the modern trend points to judicial restraint in administrative action, (b) the court does not sit as a court of appeal but merely reviews the manner in which the decision was made, (c) the court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible, and (d) the Government must have freedom of contract and that permits a fair play in the joints as a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. Hence, the Court has laid down that the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. 19. In Jagdish Mandal v. St....
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....eciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, 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." 24. We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinized by the technical experts and sometimes third party assistance from those unconnected with the owner's organization is taken. This ensures objectivity. Bidder's expertise and technical capability and capacity must be assessed by the....