AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2017 (6) TMI 1175
X X X X Extracts X X X X
X X X X Extracts X X X X
....rth, South and Central) Zones of Surat City has prayed for an appropriate writ, direction and order quashing and setting aside the action of the respondent - Surat Municipal Corporation (hereinafter referred to as "SMC") in considernig the bid submitted by M/s. Western Imaginary Transcon Pvt. Ltd. as well as the bid submitted by Om Swachatha Corporation as qualified for the Tender Notice No.PHD/DCHH/19/201617 issued by the SMC for Door to Door Refuse Garbage Collection and Transportation using close body of vehicles model of 2015 RTO passing, with Tipping Arrangement including labours in accordance with Municipal Solid Waste (Management and Handling) Rules, 2016 for the period of 5 years. The petitioner has also further prayed for an appropriate writ, direction and order directing the respondent authorities to consider the price bid submitted by the petitioner for the aforesaid tender for awarding the contract in western zone. [2.0] The facts leading to the present Special Civil Application in nutshell are as under: [2.1] That on 08.07.2016, SMC issued etender notice calling online tender for Door to Door Refuse Garbage Collection and Transportation using close body of vehicl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on behalf of the petitioner and Shri Kamal Trivedi, learned Senior Advocate has appeared on behalf of the Surat Municipal Corporation. Shri Shalin Mehta, learned Senior Advocate has appeared on behalf of respondent No.6, Shri S.P. Majmudar, learned Advocate has appeared on behalf of respondent No.5 and Shri Yatin Soni, learned Advocate has appeared on behalf of respondent No.4. [4.0] Shri Marshall, learned Counsel appearing on behalf of the petitioner has vehemently submitted that action of the respondent Authority SMC in treating / considering respondent Nos.5 and 6 as technically qualified is absolutely illegal, arbitrary and malafide to favour respondent Nos.5 and 6 who as such were ineligible inasmuch as they did not fulfill the eligibility criteria mentioned as per the tender notice and thereby they were required to be declared as technically disqualified. [4.1] Now, so far as the allegation with respect to respondent No.6 is concerned, it is the case on behalf of the petitioner that respondent No.6 was required to be declared technically disqualified on the following grounds. (1) That the respondent No.6 was a Joint Venture (2) That the respondent No.6....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and set aside the action of the respondent SMC in considering the respondent No.6 as technically qualified and to consider its bids. [4.4] Now, so far as the allegation against the respondent No.5 is concerned, it is vehemently submitted that the respondent No.5 being Joint Venture was required to be declared disqualified and its bid was liable to be rejected on that ground. It is submitted that in the work completion certificate and Agreements, the respondent No.5 is stated to be Joint Venture. It is submitted that therefore considering para 4 of the post-qualification criteria and evaluation procedure and as per the terms and conditions of the tender notice the bids submitted by the Joint Venture shall not be considered. It is submitted that therefore, the action of the respondent in holding and/or considering the respondent No.5 as technically qualified and to consider its bids is absolutely illegal, most arbitrary and biased which deserves to be quashed and set aside. [4.5] It is further submitted by Shri Marshall, learned Counsel appearing on behalf of the petitioner that even the respondent No.5 did not submit the full EMD on or before the date of submission of the EMD....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ied. Making above submissions it is requested to allow the present petition and quash and set aside the action of the respondent SMC in considering and holding the respondent No.5 as technically qualified and consequently to consider bid of the respondent No.5. Making above submissions and relying upon the decision of the Hon'ble Supreme Court in the case of Bakshi Security and Personnel Services Private Limited vs. Devkishan Computed Private Limited and Others reported in (2016) 8 SCC 446 it is requested to allow the present petition. [5.0] Present petition is vehemently opposed by Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of SMC, Shri Shalin Mehta, learned Senior Advocate appearing on behalf of the respondent No.6, Shri S.P. Majmudar, learned Advocate appearing on behalf of respondent No.5 and Shri Yatin Soni, learned Advocate appearing on behalf of respondent No.4. [6.0] Shri Kamal Trivedi, learned Counsel appearing on behalf of SMC has submitted that in the facts and circumstances of the case and considering the fact that there is substantial compliance of the terms and conditions of the tender agreements / documents, the respondent Nos.5 and 6....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... It is submitted that therefore there is a substantial compliance and therefore, the bids of the respondent Nos.5 and 6 are rightly considered. [6.3] Now, so far as the submission on behalf of the petitioner that as respondent No.5 did not submit the full EMD on or before the specified date i.e. 21.01.2017 and therefore, as per the terms and conditions of the tender notice / documents, its tender was liable to be disqualified is concerned, it is submitted by Shri Trivedi, learned Counsel appearing on behalf of SMC that as such respondent No.5 Om Swachatha Corporation submitted the bids for West, SouthEast and South Zone respectively and submitted EMD amounting to (1) Rs. 3,42,300/; (2) Rs. 2,99,680/and (3) Rs. 2,81,530/respectively. It is submitted and so stated in the affidavit in reply on behalf of SMC, Om Swachatha Corporation requested by its letter dated 27.01.2017 for settlement of the EMD paid for South Zone for and in respect of other two zones i.e. West Zone and SouthEast Zone. It is submitted that the Department recommended its case and referred the subject matter to Tender Evaluation Committee for further process. It is submitted that the request received fro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e taken because of the adinterim relief granted by this Court in other proceedings. Making above submissions and relying upon above decisions it is requested to dismiss the present petition. [7.0] Present petition is also opposed by Shri Shalin Mehta, learned Counsel appearing on behalf of respondent No.6. [7.1] It is vehemently submitted by Shri Mehta, learned Counsel appearing on behalf of respondent No.6 that as such there are no allegations and/or averments in the petition against the respondent No.6 that as the respondent No.6 is a Joint Venture, its bid is liable to be rejected. It is submitted that therefore in absence of any such pleadings in the petition no such oral submissions can be permitted to be made. [7.2] It is submitted that even otherwise the bids submitted by the respondent No.6 is in its individual capacity and not as a Joint Venture. It is submitted that its past experience as a Joint Venture is required to be considered as submitted by Shri Trivedi, learned Counsel appearing for SMC. It is further submitted by Shri Mehta, learned Counsel appearing on behalf of respondent No.6 that considering the work completion certificates issued by the Bombay M....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Tender Evaluation Committee. [8.1] It is submitted that there was a bonafide error on the part of the respondent No.5 in not submitting the EMD of the full amount and the respondent No.5 submitted the EMD of the amount as per the original tender notice but not as per the corrigendum by which the amount of EMD was increased. It is submitted that therefore as there was a bonafide error, the respondent No.5 requested to adjust their EMD with respect to South Zone for and in respect of other two zones i.e. West Zone and SouthEast Zone, which has rightly been accepted by the Tender Evaluation Committee / SMC. It is submitted that therefore when there is a substantial compliance of the terms and conditions of the tender notice as per the tender notice documents, the respondent No.5 is rightly held to be technically qualified. On other submissions made by Shri Marshall, learned Counsel appearing on behalf of the petitioner, Shri Majmudar, learned Advocate appearing for respondent No.5 has adopted the submissions made by Shri Trivedi, learned Counsel appearing on behalf of SMC. Making above submissions it is requested to dismiss the present petition. [9.0] In rejoinder to the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d learned Counsel appearing for respective parties at length. At the outset it is required to be noted that in the present petition the petitioner has prayed for an appropriate writ, direction and order to quash and set aside the action of SMC in considering the bids submitted by respondent Nos.5 and 6 as qualified. At the outset it is required to be noted that as such even according to the petitioner also the petitioner is found to be L3, respondent No.5 is found to be L2 and respondent No.6 is found to be L1. Even as per the petitioner, respondent No.6 has offered Rs. 1089 per Metric Ton, respondent No.5 has submitted the offer for Rs. 1169 per Metric Ton and the petitioner has submitted the bid / offer for Rs. 1175 per Metric Ton. As per the tender notice, the requirement is minimum 125 Metric Ton per day. The contract is for 5 years. Therefore, the offer submitted by respondent No.6 as such is much much lower than the offer submitted by the petitioner. There shall be a difference of approximately Rs. 1,96,00,000/between the offer submitted by the respondent No.6 and the offer submitted by the petitioner. However, it is the case on behalf of the petitioner that if the bids of....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... There is no such requirement to submit the tender documents and/or the documents alongwith the tender in English. The aforesaid is uniformally followed and/or complied by SMC with respect to all the bidders. It cannot be disputed that there is a distinction and difference between tender and the documents (documents produced alongwith the tender). Therefore, the submission on behalf of the petitioner that as some of the documents / agreements / work orders submitted by the respondent Nos.5 and 6 alongwith the tender were not in English and therefore, their bids were liable to be disqualified is concerned, the same has no substance and cannot be accepted. [10.4] Now, so far as the submission on behalf of the petitioner that considering the work completion certificates produced by respondent No.6, it cannot be said that the respondent No.6 is having the requisite eligibility criteria / experience in Door to Door Refuse Garbage Collection and Transportation is concerned, from the work completion certificate issued by SMC, it can safely be said that the respondent No.6 is fulfilling the requisite eligibility criteria of Door to Door Refuse Garbage Collection and Transportation. As ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....outhEast Zone and South Zone. It is also an admitted position that the respondent No.5 - Om Swachatha Corporation submitted EMD of Rs. 3,42,300/, Rs. 2,99,680/and Rs. 2,81,530/respectively. As observed hereinabove, for West Zone, the EMD of Rs. 3,70,580/was required to be submitted for West Zone; EMD of Rs. 3,26,740/was required to be submitted for SouthEast Zone and the EMD of Rs. 3,04,750/was required to be submitted for South Zone. Thus, when the respondent No.5 submitted the EMDs, the EMDs were not of full amount. Therefore, considering the terms and conditions of the tender agreement / general terms and conditions more particularly Clause 25 of Volume II of Technical Bid (Disqualification Clause), a tender shall be disqualified and will not be taken for consideration if the earnest money deposit is not deposited in full and in the manner as specified. As per the terms and conditions the bidder was required to submit separate EMD for each zone. However, despite the above, respondent No.5 is not considered technically disqualified. The reason given by the respondent SMC in its affidavit in reply (Para 21) and also by the respondent No.5 in its affidavit in reply is that....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... amount before the specified date as mentioned in the tender notice / corrigendum can be said to be essential condition, noncompliance of the same shall render the bid submitted by such bidder technically disqualified. Relying upon the decisions of the Hon'ble Supreme Court referred to hereinabove, learned Counsel appearing on behalf of the Corporation and the respondent No.5 have submitted that as there was a substantial compliance of the condition of deposit of EMD the bid submitted by the respondent No.5 was not required to be declared technically disqualified is concerned, the aforesaid cannot be accepted. Firstly, the terms and conditions of the deposit of EMD of full amount before the specified date can be said to be essential condition and the same is required to be complied with strictly. Non-deposit of the full amount of EMD before the specified date and subsequently submitting the EMD of the balance amount even by adjustment of EMD of other zone cannot be said to be substantial compliance. [10.8] Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Poddar Steel Corporation Ltd. by Shri Trivedi, learned Counsel appearing on be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pugned action of the respondent SMC in considering the bid submitted by respondent No.5 as technically qualified and thereby to consider its offer on merits cannot be sustained and the same deserves to be quashed and set aside. [12.0] However, even after quashing and setting aside the impugned action of the respondent SMC in considering the bid submitted by the respondent No.5 as technically qualified and thereby to consider the bid submitted by the respondent No.5 on merits, in that case also, the petitioner shall not be entitled to any relief directing the respondent Corporation to consider and accept the price bid submitted by the petitioner as even according to the petitioner, respondent No.6 - Western Imaginary Transcon Pvt. Ltd. is held to be L1 and the petitioner is found to be L3. Even if the bid submitted by the respondent No.5, who is found to be L2, is excluded, in that case also, being L3 (L2) still the respondent No.6 shall be L1. As observed hereinabove, the action of the respondent - Surat Municipal Corporation in considering the bid submitted by the respondent No.6 on merits after holding it as technically qualified is just and proper and legal. As observed....