TaxTMI 
TaxTMI 
2021 (12) TMI 1532
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.... under Articles 226 and 227 and Articles 14, 19 and 21 of the Constitution of India, the Petitioners have questioned their illegal disqualification from the tender process purportedly for non-fulfillment of one of the tender conditions. 3. A few facts which are necessary to decide the controversy, are as under : The petitioner is a private limited company and a registered contractor with the Public Works Department (PWD), having completed several works in the past. The respondent No. 2 had issued a Notice Inviting Tender (NIT), inviting percentage rate tenders from the eligible contractors of the PWD for the work of "Improvement and hotmixing of road from Anjuna Petrol Pump to Titos Bridge in V.P. Anjuna in Siolim Constituency". The estimated cost of the work was Rs. 1,96,62,418/-. A tender notice was issued on 16/11/2020 stipulating the tender schedule, as also the documents which were required to be uploaded on the e-tender website. One of the conditions i.e. condition (d) in the tender notice, which is the subject matter of controversy and dispute, reads as under : "d. Copy of the system generated mail/sms from the Commercial Tax Department, Government ....
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....ncluding the subject-tender and on receipt of the said documents, the said Pundalik Gawas shared the same with the petitioner, after which the present petition was filed. 7. Mr. Sardessai, learned Senior Counsel for the petitioner, submitted; that clause (d) required submission of the ARN in respect of the GSTR-1 returns filed by the petitioner, which included details of all the outward supplies of goods and services made by the petitioner for the relevant period; that since the petitioner had already submitted the ARN in respect of GSTR-1, the petitioner was not required to submit GSTR-3B. According to Mr. Sardessai, GSTR-3B return only reconciles the outward supplies with the input tax credit; whereas, the GSTR-1 return indicates that the petitioner has filed returns in respect of the outward supplies and that this was the only relevant return for the purpose of the tender. He submitted that the petitioner could not have been disqualified by the respondent no.2, for not having submitted the GSTR-3B, as the petitioner had submitted the ARN in respect of GSTR-1 alongwith the tender application. 8. Mr. Sardessai, learned Senior Counsel submitted that respondent No. 2 had ....
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....and 5 to be qualified and, as such, acted malafidely and arbitrary, thus warranting their disqualification from the tender process. 10. Mr. Sardessai, learned Senior Counsel further submits that the process adopted by the respondent Nos. 1 to 3 and the decision made in furtherance thereto, of disqualifying the petitioner and selecting the respondent No. 4 as a successful bidder smacks of malafides and arbitrariness, done with the sole intent of favouring the respondent Nos. 4 & 5. He submits that the decision taken by the respondent Nos. 2 and 3 was not in public interest, inasmuch as, the respondent No. 4 had given a false undertaking to the authority that they had no works in hand, when, infact, the respondent No. 4 had several incomplete works at the relevant time. Learned Senior Counsel for the petitioner submits that judicial intervention is warranted, inasmuch as, the authority had not directed itself properly and had acted unreasonably and with an ulterior purpose. Learned Senior Counsel further submits that the words appearing in clause - d of the Tender Notice dated 16th November 2020 i.e. the bracketed portion/parenthesis "(GSTR-1, GSTR-3B....
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....)(a)(b)(c) of the Central Goods and Services Tax Rules, 2017. He submits that the purpose of filing GSTR-3B, was to see whether all taxes were paid and that the party was following the tax regime. He submits that even if the petitioner had given the ARN number for the month of October, in connection with GSTR-3B, the same would have been sufficient, however, the same was not supplied. He submits that GSTR-3B was a mandatory document, which ought to have been filed by the petitioner alongwith the tender document. He submits that failure to submit the said document, would naturally entail rejection of the petitioner's application. He submits that the tender was floated on 16th November 2020, and the last date of submission of the tender document was 7th December 2020, and as such, the petitioner had 22 days to file the necessary returns, to make him eligible in the tender process. Learned Advocate General relied on certain terms/instructions of the tender notice. He submits that incomplete applications were liable to be rejected in terms of clause - 7(iii) of the Notice Inviting Tender (NIT). He submits that clause - 8 of the NIT provided necessary consequences for not uploading the ....
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....ed that the present petition is a fight between 2 tenderers and that there is no public interest involved in the same. He further submits that the petition ought not to be entertained even on the ground of delay. He submits that the petitioner was disqualified on 22nd December 2020; that on 24th December 2020, representation was made to the authorities, followed by two legal notices dated 24th December 2020 and 6th January 2021 respectively, giving 7 days to the respondents to act on their representation; that RTI was filed only after 3 months, after being disqualified, and the petition in June 2021. 14. Mr. Pangam relied on the following Judgments, in support of his submissions:- 1. Bharat Cooking Coal Limited and Others v/s Amr Dev Prabha and Others [(2020) 16 CC 759] ; 2. Silppi Constructions Contractors vs. Union of India and Another [(2020) 16 SCC 489] ; 3. K. Ismail v/s State of Goa through its' Chief Secretary and Others [(2021) SCC OnLine Bom 867]; 4. Central Coalfields Limited and Another v/s SLL-SML (Joint Venture Consortium) and Others [(2016) 8 SCC 622] ; 5. Sharad Keshao Chonge v/s State of Maharashtra and Others [(2006 (2) ....
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....es, 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 interfere by exercising the power of judicial review, should be resisted; that interference by courts either interim or final, may lead to holding public works for years or delay relief and succor to thousands and millions and may increase the project cost manifold. 18. Similarly in Air India Limited v/s Cochin International Airport Limited [2000(2) SCC 617] the Apex Court observed that the award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction and that in arriving at a commercial decision, considerations which are of paramount importance are, commercial considerations and that the State can choose its own method to arrive at a decision. It was further observed that the State can fix its own terms of invitation to tender; enter into negotiations before finally deciding to accept one of the offers made to it; that the price need not always be the sole criterion for awarding a contract; that the State is free to grant any relaxation, for bonafide r....
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....tise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure." (emphasis supplied) ....
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....itutional Court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional Court interferes with the decision-making process or the decision. 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. 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. 28. In Montecarlo v. NTPC Limited [(2016) 15 SCC 272 : AIR 2016 SC 4946] the Apex Court held that where a decision is taken that is manifestly in consonance with the language of the tender document or sub-serves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting a....
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....e Commercial Tax Department, Government of Goa showing the latest Application Reference Number (ARNK) generated on GST common Portal www.gst.gov.in after filing the latest return which was due as per GST Law (GSTR-1, GSTR-3B and any other returns) (For All the works)." 31. The question that arises in the present petition is, whether the submission of GSTR-1 and GSTR-3B was an essential term of the tender. According to the learned senior counsel for the petitioner, it is not an essential term, whereas, according to the learned Advocate General, it was an essential term of the tender. It is not in dispute that the petitioner had uploaded the GSTR-1, but had not uploaded GSTR-3B. According to Mr. Pangam, learned Advocate General, it was incumbent for the petitioner to file GSTR-3B alongwith his online application. Mr. Pangam submitted that the date and time of online submission of the tender was 7th December 2020 at 15:00 hrs, whereas, the petitioner filed his GSTR-3B on the very same day i.e. on 7th December 2020 at 11:07 p.m. (the petitioner filed his tender on 7th December 2020 at 12:36 p.m.). 32. It appears that neither the said GSTR-3B nor the ARN number was submitted by th....
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....edly, the petitioner had not filed the said document till the filing of the petition and as noted above, what has been filed is GSTR-3B for the month of October 2020. It is also in dispute that the respondent Nos. 4 and 5 had produced both, GSTR-1 and GSTR-3B and as such their bids were accepted and were opened. It is also not in dispute that out of the 6 bids received, bids of 4 bidders viz., Abcon, Arav Infratech Pvt. Ltd, Creative Enterprises and Kishor Naik were rejected as they were not accompanied by necessary documents i.e. GSTR-1 and GSTR-3B. 35. As far as non-submission of ARN of GSTR-3B is concerned, it appears that filing of GSTR-3B returns was a mandatory requirement, in terms of the GST Act 2017. GSTR-3B is a consolidation of summary returns of inward and outward supplies i.e. purchases and expenses, required to be furnished by the registered person on monthly basis. It appears that GSTR-3B filing acknowledgment which the petitioner has annexed to the petition pertains to the return for September 2020, purportedly filed on 7th December 2020. According to the learned Advocate General, for the month of October 2020, the due date for filing of GSTR-3B returns was ....