TaxTMI 
TaxTMI 
2019 (1) TMI 2013
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....o by three persons whose bids, respectively, 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/Superinten....
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....wn from Nationalised or scheduled banks. vi) The BG/FDR shall be valid upto one month after defect liability period. Validity of demand draft shall be minimum 3 months from the date of submission 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 f....
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....t bidder among the three bids that had been received. The bone of contention between the parties is whether it is possible for the appellant before us to condone the initial bank guarantee being given for an admittedly incorrect period of 6 months. 4) Mr. Shekhar Naphade, learned senior 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 ....
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....ed this B.G./F.D.R's validity extended according to the tender condition. It should be taken after the award of work as general procedure in other departments. The clause of performance security is included based on G.R. dt. 12.02.2016 &Corrigendum on date 17.03.2016 and 14.07.2016. As policy decision, modification 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.....
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....17 - E.M.D. shall be paid online through bank account of own by contracts, contractor shall submit the undertaking that the EMD has been paid through his bank account and he will be responsible for any legal action under IPC if it is found false." As against this, when it comes to performance security, the PWD Circular of 12.02.2016 and its 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. Th....
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.... cannot be utilised to make a fresh bargain between parties." 14) However, learned counsel appearing on behalf of the appellant strongly relied upon Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818, and paragraphs 14 and 15 in particular, which state: "14. We must reiterate the words of caution that this Court has stated right from the time when Ramana Dayaram Shetty v. International 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 d....