TaxTMI 
TaxTMI 
2013 (6) TMI 899
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....ing and diagnostics. The petitioner has made bidding in response to the respondent's tender No.RT- 11036/12/2012-MVL dated 1st November, 2012. b) It is submitted that the technical bid for the aforesaid tender was required to be submitted by the eligible companies by 31 st December, 2012. c) The petitioner was having the expertise in the field was eligible and capable duly submitted its technical bid in the sealed cover with an earnest money of Rs. 60,00,000/- in the form of Bank Guarantee issued by SBI, Parliament Street, New Delhi. d) The petitioner submits that while filing the technical bids, the petitioner has provided the details of the contact persons for the further communication as required by the tender to be submitted and also their telephone numbers and their E-Mail ID. The petitioner states that in the aforesaid form, the details of the contact person for further communication is mentioned as Mr. Lothar Geilen and Mr. William Dell and their E-Mail IDs are provided as [email protected] and [email protected] respectively e) It is submitted that the respondent thereafter in the month of Februa....
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....ith a copy to learned counsel for the respondent. The affidavit is taken on record. On hearing learned counsel for the petitioner it appears that even though as per Annexure P-2 the names and e-mail addresses of the contact person as well as the alternate contract person were given, the respondent mistakenly sent the e-mail to a wrong address, i.e., they wrongly spelt "loather" as "loather". The result was that the contact person never received the e-mail and could not submit the necessary details/clarifications by the cut off date of 1.3.2013. It is stated that the principal based in Sweden received the e-mail and when he communicated with the contract person in the U.S. on 11.3.2013, the necessary details were sent but vide impugned letter dated 4.4.2013, the same have not been accepted for consideration on the basis that they were submitted beyond the time for which the cut off date was 1.3.2013. It, thus, prima facie appears that the petitioner is sought to be prejudiced for a fault of the respondent in sending the e- mail to the contact person at a mis-spelt address which was never received. It is undisputed that no intimation was sent to the alternate c....
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....review of the order. The said applications are preferred by the respondent on the following grounds: a) That the plea taken by the petitioner that it is the respondent who has sent the communication dated 21st February, 2013 to the wrong E- Mail ID is not correct in as much as it is the petitioner who has filled up the form wherein the general details of the company and contact persons are filled up by him. It is not as if that the respondent has sent the said communication to altogether different E-Mail ID but has sent the communication to one of the given addresses of the petitioner. The respondent informs that the purpose of taking the information about number of E-Mail IDs is that the communication may be sent to any of the E-Mail IDs so that it should reach the applicant. b) The respondents has stated that the petitioner cannot deny having received the E-Mail dated 21st February, 2013, the only objection of the petitioner is that the said communication was sent to general E- Mail address and not to the contact person address. Thereafter, the petitioner states that the said E-Mail went into the spam folder of the petitioner company. The respondent has sta....
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....etitioner has filed up in the bidding form wherein the contact details of two persons namely Lother Geilen and William Dell find mention. It is also correct that the clarifications which were called upon by the respondent for the petitioner's to comply with are of trivial nature. However, it cannot also be lost sight of that the petitioner has itself also given an E-Mail ID namely [email protected] in the general details of the applicant while filing the form and presenting it before the respondent. It is equally noteworthy to mention that the E-Mail ID namely [email protected] belongs to the petitioner who is applicant in the bidding document which is Swedish entity and not the person who is unconnected with the tender proceedings. It is also a matter of fact as per petitioner's own saying that the petitioner did receive the E-Mail at the E- Mail ID at [email protected] on 21st February, 2013 itself calling upon the petitioner to provide clarification. However, the said E-Mail could not be discovered by the petitioner as it went into the spam folder. 11. It is however, the argument of the petitioner that the E-Mail could not b....
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....check on the e-mails diverted to spam folder could be traced only 11.03.2013, therefore no further time can be given to the bidder. The Committee further noted that the bidder in their letter dated 11 th March 2013, received on 14th March 2013 in the Ministry, stated that the extended BG for EMD will be delivered forthwith. But till the date of the meeting, the extend BG also has not been received. Besides, the document provided by the M/s OPUS was also not a clear copy. In fact the upper portion of the document is not clear. In view of the above, the Committee in the absence of any evidence of non-receipt of this Ministry's letter dated 21 st February 2013 and non furnishing of extended Earnest Money Deposit (i.e. up to 15.07.2013), in time the Committee decided not to accept the clarification/document submitted by the M/s OPUS." 14. Mr.Mehra has also referred to certain portions of the minutes of the meeting of the Committee constituted to evaluate the bids received for Procurement of Technical Equipment for I&C Centre under the Chairmanship of Joint Secretary (T) held on 16th April, 2013 where the list of participants was discussed. He referred to para 8 of the said meeti....
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.... gone into the spam folder and could not be discovered due to the fault of the respondent and thus resulted in belated reply. Firstly, we find that there is no fault as such on the part of the respondent. The purpose of sending the E-Mail to the petitioner was to communicate with it on the given address which was done by the respondent though on one E-Mail ID. Thereafter, it was the petitioner's duty to discover the E-Mail from the folder and if the same has gone into the spam folder and the petitioner could not discover the said E-Mail due to the said reason, the same cannot by any stretch of imagination be the fault of the respondent but is a technical flaw in the computer system of the petitioner which becomes the responsibility of the petitioner to rectify. The said belated checking of the spam folder is thus not the mistake of the respondent but the responsibility of the petitioner to become more vigilant while keeping a track over its own communications. 18. It is true that ordinarily the respondent ought to have sent the communications to the E-Mail IDs which are given in the application form. However, once the respondent has sent the communication to one given E- Mai....
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.... Once, the given E-Mail ID is forming part of the form of the application in the bidding document, even if the said condition of sending the E-Mail is strictly construed, the petitioner did receive the E- Mail though not on all E-Mail IDs but one of the E-Mail IDs. Secondly, the said form also contains a request in the form of alert that the applicants are requested to check the given E-Mail IDs. All this would mean that the strict adherence to bidding document puts the petitioners at fault rather than the respondent. Lastly, the Supreme Court in B.S.N. Joshi's case (supra) has made a distinction between the essential conditions of the bidding document from which there is no departure and the ones which are mere trivialities which can be ignored and not strictly insisted upon. We find that once the E- Mail has been received by the petitioner on the given E-Mail ID on the form, then the fact that the other E-Mail IDs did not receive the communication is trivial in nature as the purpose was to inform the applicant company about the clarifications sought for by the respondent. The said E-Mail ID on which the E-Mail was received was of the chairman or the head of the petitioner com....