TaxTMI 
TaxTMI 
2015 (3) TMI 1302
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....quiring wider participation of bidders to ensure healthy competition more so in view of the fact that the no unfair advantage had been gained by the petitioner in this process and the petitioners were not stealing a march over any of their competitors by altering their bid amount? 2. The respondent No.2 had issued a Notice Inviting Tender (NIT) dated 03.03.2014. The respondent No.2 had floated a Global Tender Enquiry for procurement of Medical Gas Pipeline System for six AIIMS for and on behalf of respondent No.1. Nine amendments were made by the respondent No.2 to the tender document from time to time, the ninth amendment being issued on 26.12.2014. As per the said NIT dated 03.03.2014, the date for opening of techno-commercial bid was 29.12.2014. The NIT dated 03.03.2014 specified that If EMD is submitted in the form of BG, then the validity of the BG should be at least 165 days from the date of tender opening, i.e. up to 30.06.2015. The NIT dated 03.03.2014 was amended by amendment No. 9 dated 26.12.2014 and the date of opening was amended to 15.01.2015 and the validity condition for EMD was amended to read that the validity of the BG should be at least 165 days from the date....
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....st money deposit was made valid for the entire period as stipulated. He further contended that the discrepancy and error had occurred on account of the amendment of the bid document by the respondents from time to time. He further contended that the bank guarantee was short by only seven days and the same was a minor discrepancy, which discrepancy had been cured prior to the evaluation and consideration of the bids. It is contended that the condition was not an essential condition that would go to the root of the bid but was a condition prescribed to protect the Respondent from any default on the part of the Bidder. 7. Learned counsel for the petitioner relied on the decision of this Court in Telecommunications Consultants India Ltd. Vs. Bharat Sanchar Nigam Ltd. W.P. (C) NO.1233/2014 and other connected petitions dated 05.12.2014 and also on the decision of the Division Bench in Kapsch Metro Jv Vs. Union Of India & Anr., 140 (2007) DLT 378 (DB) to contend that there were no mala fides on the part of the petitioner for the unintentional slip that was committed in not submitting the bank guarantee for the full period and further to contend that the lapse was a mere hyper-technica....
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....ender Document stipulate as under: 19. Earnest Money Deposit (EMD) 19.1 Pursuant to GIT clauses 8.1 and 11.1 A(i) the tenderer shall furnish along with its tender, earnest money for amount as shown in the List of Requirements. The earnest money is required to protect the purchaser against the risk of the tenderer's unwarranted conduct as amplified under sub-clause 19.7 below. xxxxx xxxxx xxxxx xxxxx xxxxx 19.7 Earnest Money is required to protect the purchaser against the risk of the Tenderer's conduct, which would warrant the forfeiture of the EMD. Earnest money of a tenderer will be forfeited, if the tenderer withdraws or amends its tender or impairs or derogates from the tender in any respect within the period of validity "of its tender or if it comes to notice that the information/documents furnished in its tender is incorrect, false, misleading or forged without prejudice to other rights of the purchaser. The successful tenderer's earnest money will be forfeited without prejudice to other rights of Purchaser if it fails to furnish the required performance security within the specified period. 27. Scrutiny of Tenders &nbs....
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....performance of the contract. (vii) Deleted (viii) Tenderer has not agreed to other essential condition(s) specially incorporated in the tender enquiry like terms of payment, liquidated damages clause, warranty clause, dispute resolution mechanism applicable law. (ix) Poor/ unsatisfactory past-performance. (x) Tenderers who stand deregistered/banned/blacklisted by any Govt. Authorities. (xi) Tenderer is not eligible as per GIT Clauses 5.1& 17.1. (xii) Tenderer has not quoted for the entire quantity as specified in the List of Requirements in the quoted schedule. (xiii) Tenderer has not agreed for the delivery terms and delivery schedule. 28. Minor Infirmity/Irregularity/Non-Conformity 28.1 If during the preliminary examination, the purchaser find any minor informality and/or irregularity and/or non-conformity in a tender, the purchaser may waive the same provided it does not constitute any material deviation and financial impact and, also, does not prejudice or affect the ranking order of the tenderers. Wherever necessary, the purchaser will convey its observation on such 'minor' issues to the tend....
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.... petitioner's bid. Consequently, to accept the respondent No. 2's pleas would be tantamount to invalidating the petitioner's bid on a hyper-technical construction on account of a situation brought about only by the postponement of the bid by respondent No. 2 itself. Taking into account the fact that the bids are international it will be wholly unjust to deny the petitioner the opportunity to participate in the tender process, specially since no unfair advantage has been gained by the petitioner in this process. The petitioners are not stealing a march over any of their competitors by altering their bid amount. The petitioners have been conscientious enough by updating the EMD on their own after coming to know of the technical non-compliance. We fail to see how the Respondent No. 2 can claim that public interest would not be subserved by the participation of the petitioner. Wider competition in such circumstances is always in public interest and therefore, we do not find that there is sufficient reason for Respondent No. 2 to exclude the petitioners' bid for such a minor discrepancy and that too one which was cured on a timely basis suo moto by the petitioner. In our....
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....oners were not stealing a march over any of their competitors by altering their bid amount. The petitioners had been conscientious enough by updating the EMD on their own after coming to know of the technical non-compliance. Wider competition in such circumstances is always in public interest. The Court did not find sufficient reason for the Respondent to exclude the petitioners' bid for such a minor discrepancy and that too one which was cured on a timely basis suo moto by the petitioner. Relying upon the decision of the Supreme Court in M/S Poddar Steel Corporation Versus M/S Ganesh Engineering Works, AIR 1991 SC 1579 the court held that the enforcement of the validity period of the EMD Clause by the respondent by insisting on the literal compliance of the 180 day validity period would not be justified. At the highest, the deficiency was found to be of 17 days period in the EMD of a 180 validity period and that too was subsequently altered in order to conform to the prescribed requirement. The Court held that the time lag of 17 days was a technical irregularity of little significance and was worthy of being waived as per the dictum laid down by the Hon'ble Supreme Court i....
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....nd the date of opening was amended from 29.12.2014 to 15.01.2015. Calculated from 29.12.2014 as stipulated by the NIT dated 03.03.2014, the two bank guarantees would have been valid, however the same were short by a period of seven days when calculated in terms of the amended opening date of 15.01.2015. The Petitioners on coming to know of the error, on 15.01.2015 itself got the bank guarantees extended and submitted the same to the Respondent No. 2 on the very next day. 22. It may be noted that there was a discrepancy in the NIT dated 03.03.2014 in as much as when the date of opening of the Bid was stipulated as 29.12.2014 the period of validity as 165 days mentioned was upto 30.06.2015 and when the date of opening was amended to 15.01.2015, by amendment No. 9, the period of validity as 165 days mentioned was upto 29.06.2015. 23. Furthermore, the earnest money deposit is required to protect the purchasers against the risk of the bidder's conduct, which would warrant the forfeiture of the EMD. The EMD is to be forfeited in case the Petitioner withdraws or amends its tender or impairs or derogates from the tender in any respect within the period of forfeiture of its tender or,....