2016 (7) TMI 1384

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.... straightaway. 2.8.3 Rejection of Bid The hard-bound copy of Technical Bid Document shall be submitted in the form of printed document. Bids submitted by Telex, fax or email shall not be entertained. Any bid not secured in accordance with Clause 2.8 mentioned above, shall be rejected by COT without any further correspondence, as non-responsive. A bid that does not meet all pre- qualification criteria or is not responsive or not fulfilling technical evaluation shall be rejected by COT, and may not subsequently be made responsive by correction or withdrawal of the non-conforming deviation or reservation by the Bidder. 3.4.5 It shall be the responsibility of the Bidder to abide by the provisions of the labour welfare legislations, like The Payment of Wages Act, 1936, The Payment of Bonus Act, 1965, The Minimum Wages Act, 1948, The Equal Remuneration Act, 1976, The Payment of Gratuity Act, 1972, The Employees' State Insurance Act, 1948, Contract Labor Act, 1970, The Workmen's Compensation Act, 1923 and other similar legislations, rules, and orders as issued from time to time. Annexure - 2 (Financial Bid) Format for Financial Bid Pri....

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....ith the tender conditions read with the Annexure 2 thereof), both the Appellant as well as Respondent No.1 were held to be ineligible. A decision was, therefore, taken to award the tender to the third bidder, namely, M/s Airan Consultants Pvt. Ltd. Respondent No.1 approached the Gujarat High Court in a writ petition challenging the aforesaid decision. By its judgment dated 11.8.2015, the High Court ultimately came to the conclusion that the tender in favour of M/s Airan Consultants Pvt. Ltd. ought to be quashed and set aside with the further direction that the Government of Gujarat shall give an opportunity to all three tenderers to resubmit their bids after being appraised of the minimum wage figure given by the Labour Department. This was done as the High Court was of the opinion that all the bidders ought to have been given an opportunity to revise their bills subsequent to the minimum wage calculated by the Labour Department. 5. In pursuance of the aforesaid judgment, the Transport Department of the Government of Gujarat furnished to all the competing bidders the Labour Department's calculation that minimum wages plus bonus payable for the contract was Rs. 3,00,92,346/-. ....

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....12.10.2015, the Labour Department gave a second opinion that though Data Entry Operators are ordinarily to be treated as "skilled workers", for the purpose of the present tender they should be treated as "semi skilled workers". In view of this decision, the Government, on 30.10.2015, arrived at a decision that the actual minimum wage plus bonus worked out to Rs. 2,91,00,000/-, and thus revised their earlier figure of Rs. 3,00,92,346/-. In the judgment under appeal, the High Court has stated, and it is not controverted before us, that this figure was not disclosed to either party. 8. On 2.11.2015, Respondent No.1 again knocked at the doors of the High Court in a second writ petition filed by it. By the impugned judgment dated 22.2.2016, the High Court allowed Respondent no.1's petition in the following terms:- "8. Under the circumstances, the decision of the authorities to shortlist respondent No.3 for awarding the contract is set aside. The offer of the petitioner shall be treated as matching with the revised minimum wage calculation. The petitioner shall give such offer in clear writing and undertaking to the authorities latest by 25.2.2016. The respondent authorities,....

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....igh Court while exercising jurisdiction under Article 226 of the Constitution. 12. Having heard learned counsel for the parties, we agree with Shri Raval's contention that Respondent No.1's bid was contrary to the terms of the tender. 13. First and foremost, under tender condition 2.5.5, commercial bids have to strictly conform to the format provided in Annexure 2 of the tender document. Annexure 2 which contains the format for the price bid makes it clear that the salary paid to deployed manpower should not be less than the minimum wage. It further goes on to state in paragraph 3 thereof that if the component of salary quoted is less than the minimum wage prescribed, the bid is liable to be rejected. On this ground alone, Respondent No.1's bid is liable to be rejected inasmuch as, vide its letter dated 3.9.2015, Respondent No.1 stuck to its original figure of Rs. 2,77,68,000/- which is way below the minimum wage fixed by the Government. Secondly, Shri Raval is also right in stating that the without prejudice offer of Rs. 3,00,92,346/- is an offer which is not fixed, but open ended. This is clear from the fact that it was up to the Government then to pick up either figure by ....

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....ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully; (iii) if, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing; (iv) the parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance with another part of tender contract, particularly when the was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction; (v) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interf....

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....ness, bias and mala fides. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to....