TaxTMI 
TaxTMI 
TaxTMI 
2019 (1) TMI 2013
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....ly, were - Rs.39.53 crores by Respondent No.1, Rs.39.15 crores by Respondent No.2, and Rs.46.81 crores by Respondent No.3. There is no dispute that the bid of Respondent No. 2 was the lowest bid. At this stage, it is a little important to advert to some of the tender conditions:- "Contract" is defined by the e-tender in question as follows:- "1.3.9 CONTRACT :- It shall mean and include following documents. Tender Documents. Specifications. Drawings. Tender document & information/data submitted by contractor Common set of conditions/Minutes of pre- Tender conference." Clause 2.15 speaks of "Pre-tender Conference" as follows:- "1) Pre-tenders conference open to all prospective tenderer will be held in the office as stated in this Section, wherein the prospective tenderer will have an opportunity to obtain clarifications regarding the work and the tender conditions. 2) The prospective tenderers are free to ask for any additional clarification either in writing or orally and the reply to the same will be given by the Chief Engineer/Superintending Engineer in writing and these clarifications referred to as common set of conditions, shall form part of tender d....
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....ubmission of tender. vii) Scanned copy of BG/FDR/demand draft shall be uploaded by the contractor at the time of e-tendering. viii) Contractor shall submit the demand draft/FDR/BG in sealed envelope in the office of the Executive Engineer, Ghodazari Canal Division Nagbhid within 5 working days from the date of submission of tender. Name of work and etender number shall be written on the envelope. ix) On opening the tender, if papers in Envelop No.1 don't fulfill the essential qualification/ documents requirements, the Executive Engineer shall return the envelope of Demand Draft/BG/FDR to concerned Contractor within 7 days from the date of opening of tender. x) The Executive Engineer shall refund the amount of performance security after completion of work successfully. xi) Demand draft BG/FDR of the second lowest tender shall be returned within 3 days after issuing works order to the lowest tender. xii) EMD of the contractors submitting false documents/demand draft/BG/FDR in above process shall be forfeited and the contractor shall be Black listed. xiii) Executive Engineer shall issue the work order only after encashing the demand draft of the lowest tenderer." "Impo....
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.... counsel appearing on behalf of the appellant, has taken us through the Government Resolution (GR) dated 12.4.2017 in order to contend that the term of bank guarantee, if originally wrongly given, and which makes a tenderer ineligible, does not disqualify him as a clarification can be sought from the bidder after which the term may be extended in conformity with the tender conditions. Apart from the above, he argued that, ultimately, the moment the deficiency was pointed out, this deficiency was made good by Respondent No. 2 and it is only thereafter that the bid of the Respondent No. 2 was accepted, being the lowest bid. He also added that the difference between the bid of Respondent No. 1 and Respondent No. 2 would amount to roughly Rs. 37 lakhs which again would be a saving to the public exchequer. He went on to add that given the parameters of judicial review and that a bona fide decision has been taken by the authority, this could not have been interfered with and was wrongly interfered with by the judgment under appeal. Mr. Raju Ramachandran, learned senior counsel appearing on behalf of Respondent No. 2, broadly adopted these submissions. 5) Mr. R. Basant, learned senior co....
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....ication in this Clause cannot be made. What is important to note is that questions were raised as to the period of bank guarantee, and the Department specifically relied upon a GR dated 12.02.2016, together with the corrigenda thereto, and stated that as a policy decision, modification in this Clause cannot be made. It is clear, therefore, that a modification to this very tender condition was suggested at the pre-tender stage, and was rejected to the knowledge of all prospective tenderers. Sub-clause 4 of Clause 2.15, therefore, becomes important in this context as the Respondent No. 2 was put on notice from the beginning itself that if there is any deviation in terms of the period of bank guarantee, its bid would be treated as non-responsive. 8) Clause 2.22, extracted herein above, also makes reference to the self-same PWD Circular dated 12.02.2016 with the corrigenda. A reading of this Clause would also show that a bank guarantee that is to be furnished has to be valid up to one month after the defect liability period which, admittedly, is for a period of 40 months. 9) Mr. Naphade's argument that had a demand draft been drawn instead of a bank guarantee, its validity would onl....
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.... corrigeneda have alone to be followed in the case of performance security. This being the case, it is not possible to advert to the GR dated 12.04.2017 for the purpose of performance security as it applies only in respect of earnest money, as is clear from Clause 2.18 of the Tender. 12) The fact that a superseded Government Resolution continues to be utilised for the purpose of performance security may raise eyebrows. However, insofar as the tendering public is concerned, they have been put on notice that the performance security that is to be furnished, will only be as per the GR dated 12.2.2016 and corrigenda and not as per the GR dated 12.04.2017. 13) The law on the subject is well settled. In Bakshi Security and Personnel Services Pvt. Ltd. v. Devkishan Computed Pvt. Ltd. and Ors., (2016) 8 SCC 446, this Court held: "14. The law is settled that an essential condition of a tender has to be strictly complied with. In Poddar Steel Corpn. v. Ganesh Engg. Works [Poddar Steel Corpn. v. Ganesh Engg. Works, (1991) 3 SCC 273] this Court held as under: (SCC p. 276, para 6) "6. ... The requirements in a tender notice can be classified into two categories-those which lay down the es....
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....ational Airport Authority of India [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489] was decided almost 40 years ago, namely, that the words used in the tender documents cannot be ignored or treated as redundant or superfluous - they must be given meaning and their necessary significance. In this context, the use of the word "metro" in Clause 4.2(a) of Section III of the bid documents and its connotation in ordinary parlance cannot be overlooked. 15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate 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." 15) It is clear even on a reading of t....