TaxTMI 
TaxTMI 
2024 (5) TMI 1624
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....ement Act, 2012 (for brevity-`the Act of 2012'), the work order given to the petitioner has been cancelled and re-tender procedure is directed to be started. 2. The relevant facts in brief are that the Rajasthan State Food and Civil Supplies Corporation (for brevity`-the Procuring Entity') issued a notice inviting bids dated 27.1.2023 for transportation of foodgrains/sugar from the godowns of the Food Corporation of India to the fair price shops in District Dholpur. It was a two stage bid. The petitioner and the respondent no.1 were the only participants. During the bid process, the Procuring Entity required the petitioner to supply the documents mentioned therein such as, audited balance sheet and profit and loss account with correct UDIN No., turnover and working capital certificate and ITR of financial year 2022-23. Technical analysis comparison chart of both the bidders was uploaded by the Procuring Entity on 1.12.2023 wherein, the petitioner was found "responsive" whereas, the respondent no.1 was found "non-responsive" and was disqualified for the reason that it has submitted the financial undertaking to furnish performance security of 2.5% instead of 5%. The first appeal p....
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....tted by it along with the bid document. 7. In its rejoinder to the reply by the respondents no.2 to 5, the averments made in the writ petition were reiterated. 8. Reiterating the averments made in the writ petition, the learned senior counsel for the petitioner-Shri N.K. Maloo would contend that the bid evaluation committee required it to submit the documents of the nature envisaged under Rule 61(2) of the Rules of 2013 which provides an opportunity to a bidder to remove the non-material non-conformities in the bid document such as the audited balance sheet and profit and loss account with correct UDIN No., the turnover and working capital and ITR of the financial year 2022-23. He submitted that along with the bid document, although, the petitioner had submitted all these documents; but, on account of an inadvertent and bona fide error, either the financial year came to be mentioned wrong or, the documents of previous financial year came to be submitted, which was rectified as soon as the procuring entity required it to do so. Referring to the scheme of the Rule 59, 60 and 61 of the Rules of 2013, the learned senior counsel submitted that while it is permissible for the bid e....
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....pellate authority erred in directing cancellation of the work order and re-tender even in absence of a prayer in this regard, learned counsel submitted that since the work order in favour of the petitioner was issued during pendency of the appeal, no prayer could be made for its cancellation. In this regard, inviting attention of the Court towards the provisions of Section 11(2)(a)(ii), (iii) and (3)(e) of the Act of 2012, he further submitted that in the situation stipulated therein including the anti competitive behaviour in the procurement process, the entire tender process could be cancelled. Shri Gupta submitted that in view of rejection of the technical bid of one of the bidders out of only two bidders, since, no scope of competition was left, the second appellate authority rightly cancelled the work order issued in favour of the petitioner. Referring to and relying upon clause14D of the tender document, Shri Gupta submitted that if the required documents from the check list are not uploaded, the bid is not to be considered responsive. However, the Procuring Entity acting in violation of this condition, erroneously granted the petitioner an opportunity to remove the material ....
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....n be corrected without touching on the substance of the bid. 60. Clarification of bids.- (1) To assist in the examination, evaluation, comparison and qualification of the bids, the bid evaluation committee may, at its discretion, ask any bidder for a clarification regarding its bid. The committee's request for clarification and the response of the bidder shall be in writing. (2) Any clarification submitted by a bidder with regard to its bid that is not in response to a request by the committee shall not be considered. (3) No change in the prices or substance of the bid shall be sought, offered, or permitted, except to confirm the correction of arithmetic errors discovered by the committee in the evaluation of the financial bids. (4) No substantive change to qualification information or to a submission, including changes aimed at making an unqualified bidder, qualified or an unresponsive submission, responsive shall be sought, offered or permitted. (5) All communications generated under this rule shall be included in the record of the procurement proceedings. 61. Non-material Non-conformities in bids.- (1) The bid evaluation comm....
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....acceptance. This Court is not persuaded to give such narrow and restricted meaning to the phraseology used under Rule 61(2) of the Rules. In view thereof, this Court has no hesitation in recording a finding that the shortfall in the submitted documents by the petitioner along with its bid document, by their nature, did not constitute material deficiency /omission/reservation. 15. Now, this Court considers whether the respondent no.1 also deserved an opportunity to rectify its shortcoming in the bid document which required it to submit a financial undertaking in terms that it shall furnish the prescribed performance security amount of 5% or as per RTPP Rules amended time to time on the total value of the cost of the quantity for supply. However, in contradiction to it, the respondent no.1 submitted the financial undertaking stating therein that it shall furnish prescribed performance security amount of 2.5% on the total value of the cost of the quality for supply. There cannot be two opinion on the aspect that submission of the financial undertaking in terms of the bid document is an important aspect affecting the bidder's obligations under the proposed contract and failure to do....