TaxTMI 
TaxTMI 
TaxTMI 
2023 (3) TMI 1581
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....o be held on 02.02.2022 and the closing date for submission of the tenders was on 16.02.2022. The respondents in both the Writ Appeals namely, Jyothi Constructions, represented by its Managing Partner V.Surya as well as A.M.G.Vijaykumar submitted their applications. Clause 1.10(b) reads as follows:- "1.10 Submission of Tender (Technical Bids) : a).... b) The tenderers are advised to carefully go through the following and comply: i. Terms and Conditions of the tender document. ii. Bulk Petroleum Road Transportation agreement. iii. Instructions for tenderers participating in e-tenders." 1.1. Similarly, Entry No.16 of the list of documents required for technical evaluation mentioned in page No.23 of the application requires uploading of the following documents:- Sr. Description of Document Requirement Please put ? for YES and X for NO in the box . . . . 16 Details of relationship with Directors of IOCL - Part A,B& C and Declaration 'I', 'II' and 'III' (Attachment-11). On Letter Head (scanned copy) 1.2. Along with the tender terms and conditions, a copy of the standard agreement is also furnished and the Declaration-I which i....
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....tion-I stating NA in the attachment-11. The submitted declaration is invalid." 1.5. Contending that they initially filled up the declaration, but, the consultant of the petitioners had inadvertently struck off the declaration at the time of uploading and that by itself should not make the bids invalid and pleading that they have invested several crores of rupees purchasing brand new Trucks and that their bids have been rejected for flimsy reasons, the respondents filed W.P.Nos.14901 and 14906 of 2022 challenging the orders of rejection of their technical bids. B. The case of the appellants in Writ Petitions : 2. Though the appellants did not file counter-affidavit, they contested both the Writ Petitions on the ground that the bids could have been rejected at the outset itself. The tenderers ought to have gone through tender documents carefully and when the declaration is sought only to ensure compliance of the standard agreement, they ought not to have scored off the declaration, but, ought to have filled up the same. Inspite of granting an opportunity, they committed the above mistake and therefore, the authorities scrutinising the tenders have to go strictly by the tender co....
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.... admitted, howsoever trivial it would be, irrespective of the nature of the mistake, the Tendering Authority is entitled to reject the technical bid. Without adverting to the pleadings of the parties, the learned Single Judge understood the declaration differently and had, as a matter of fact, re-written the contract in the process by holding that such a declaration should be executed and uploaded after the execution of the agreement which are not the terms of the contract. Such powers are beyond the writ jurisdiction under Article 226 of the Constitution of India. Learned Senior Counsel had further submitted that Courts have repeatedly held that they should not lightly interfere in the tender processes especially when there is no malafide or motive which is alleged against Tender Inviting Authority. The writ petitioners were careless, inspite of the fact that they are established transporters and knew every procedure which is followed and that they should sign the declaration, they committed the mistake. It is to be noted that the standard agreement was also enclosed along with the tender application. 3.2. Learned Senior Counsel would justify the wordings contained in the declara....
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....mit that a mere disagreement with the decision making process or the decision of the administrative authority cannot be a reason for a Constitutional Court to interfere and the Constitutional Courts must defer to the understanding and appreciation of the tender documents by the Tendering Authority itself unless there is malafide or perversity in the understanding. He would further submit that the Hon'ble Supreme Court of India, in its judgment in Central Coalfields Limited and Anr. Vs. SLL-SML (Joint Venture Consortium) and Ors.[ (2016) 8 SCC 622], has held in paragraph Nos.33 and 37 that no part of the tender document can be held to be superfluous or redundant and as far as possible, the Court should read the same to give meaning to it. The meaning should be from the point of view of the Tendering Authority and that judicial restraint to be exercised in interfering with the administrative action. For all the aforesaid reasons, he would pray that the Writ Appeals be allowed. 3.4. Per contra, Mr.N.Vijay Narayan, learned Senior Counsel appearing on behalf of the respondents / Writ Petitioners, again taking this Court to the wordings and meaning of the very declaration, would sub....
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....ments, as far as possible, should be given the same meaning which the Tender Floating Authority ascribes to it. Learned Senior Counsel, after taking through the declaration, would only contend that since the phrase 'standard document' is contained in the declaration, the Tender Floating Authority is entitled to know whether they are complying with the standard agreement. Even then, we are at loss to make out any meaning for the declaration. In such a case, it should have been worded 'we declare that we will comply with and will not violate any clause of the standard agreement'. Therefore, the declaration, as contained in the form, is not only irrational, but borders on absurdity. There was no question of any violation of the standard agreement even before entering into the same. 4.1. As per the clause extracted above in 1.10(b), it is the appellants who strictly instructed the tenderers to carefully and properly read all the tender documents and fill up the application form. Any prudent / reasonable man cannot sign the Declaration-I as contained in the form at the time of submitting the tender. If the bidders mechanically sign them, again they will be violating the....