TaxTMI 
TaxTMI 
2018 (11) TMI 1985
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....7.1.5 of the RFP to the extend where it provides that the right of first appeal is before the Learned Joint Secretary, Transport Department and the right of second appeal is before the Learned Principal Secretary, Transport Department. (ii) Set aside the decision dated 29.05.2018 of Respondent No. 2 whereby bid of Respondent No. 3 has been accepted in the Technical Rounds by either overlooking material defects suffered by it or by permitting rectification thereof; (iii) Direct Respondent No. 2 to re-evaluate technical bids on the basis of bids as they had existed on the last date for submission of bids and by strictly applying material requirement and pre-qualification criteria under the RFP dated 18.10.2017; (iv) Pass such other Orders or Directions as it may deem fit." 3. This Court on 25.07.2018 after hearing counsel for both the parties came to the conclusion that the appeal provided under the Rajasthan Transparency in Public Procurement Act, 2012 before the Joint Secretary, who is an Officer of subordinate to the Procuring Authority and as such the remedy as available under Clause 7.1.5 of the Request for Proposal (hereinafter refer....
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.... M/s ITI Ltd. was requested to submit a letter from its bank to remove the condition laid down in its Bank Guarantee and provide an amended unconditional Bank Guarantee. 2. Legible copies of GST registration and experience certificate were sought for. 2. M/s Rosmerta Technologies Ltd. 1. GST Registration certificate in the form GST REG- 06 was sought for as the provisional certificate in the form GST - REG 25 was submitted earlier. 3. M/s M-Tech Innovations Ltd. 1. Fresh Experience Certificates in the format provided in the RFP were sought. 2. Bankers' details which was not earlier provided by it under Appendix -VII were sought. 4. M/s Silver Touch Technologies Ltd. 1. A copy of memorandum of Association of the lead member was sought. 2. Bank details of consortium member as per Appendix -VII of RFP. 3. CA certificate providing the minimum annual turnover in IT services or IT related activities or in the field of providing smart card enabled services. 4. Non-submission of GST Registration certificate in the State of Rajasthan. 5. Evidence that IDFC foundation which provided its experience certificate is a PSU. 10. The petitioner ha....
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....III of the RFP. 9. Non-submission of Self-certificate for not being black listed Sr. No. 20 of the table provided at Clause 3.7 14. The petitioner has pleaded in the petition that the petitioner and other bidders approached respondent No. 2 raising the issue of material defects in the e-processing fee submitted by the respondent No. 3 and further vide letters dt.28.06.2018 and 03.07.2018, raised the issue rendering respondent No. 3's bid non-responsive and declaring respondent No. 3 as technically not qualified. 15. The petitioner has pleaded in the petition that the respondent/tendering authority, failed to consider the issues in the right perspective and as such feeling aggrieved by decision of the Tender Evaluation Committee, the petitioner had filed an appeal before the Learned Joint Secretary, Transport Department on 05.07.2018 and also approached this Court by filing SBCWP No. 3599/2018 [Rosmerta Technologies Ltd. & Anr. Vs. State of Rajasthan & Ors.]. The petitioner has pleaded in the petition that this Court vide order dt.16.02.2018, disposed of the writ petition by making observation that the appeal was to be heard by the author....
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....at the documents submitted by the petitioner of financial turnover were not verified by the authorized person and as such the petitioner being the beneficiary of the technical evaluation, cannot challenge decision of the Technical Evaluation Committee. 21. The respondents have submitted that in response to the RFP/notice inviting bid, six companies had participated and the Bid Evaluation Committee opened the technical bid on 29.05.2018 in the presence of representative of the bidders. It is asserted that on the opening day of bids, the six bidders submitted tender processing fee in the form of Demand Draft (DD). The respondent No. 3-M/s M-Tech Innovations Pvt. Ltd. submitted tender processing fee of Rs. 1,000/- in the name of Transport Commissioner instead of Managing Director, RISL and Madras Security Printers Pvt. Ltd. also submitted combined Draft of Rs. 26,000/- (25,000/- tender fees + Rs. 1,000/- processing fee) in the name of Transport Commissioner. 22. The above matter was discussed by the Bid Evaluation Committee on the same date i.e. 29.05.2018 and a conclusion was drawn that even if the tender processing fee of Rs. 1,000/- in the form of DD ....
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....h Innovations Pvt. Ltd. 51.28 L1 2. M/s Rosmerta Technologies Ltd. 54.45 L2 3. M/s Madras Security Printers Ltd. 88.00 L3 4. M/s ITI Ltd. 99.00 L4 5. M/s Manipal Cards and Technologies Ltd. 108.00 L5 27. The respondents have submitted that after evaluation of M/s M-Tech Innovations Pvt. Ltd.-respondent No. 3 was declared L1 and a successful bidder. The Committee uploaded the recommendation of successful bidder on e-procurement portal on 19.07.2018 and LOI was issued by the Department and uploaded on 20.07.2018. 28. The respondents have submitted that all the bids were evaluated by the Member of the Committee as per technical eligibility criteria as per Clause 3.7 of RFP and certain information and clarification was required from the 4 bidders and details of which has been given in the reply. The petitioner itself was asked to submit copy of GST registration in the form of GST REG-25, as the GST registration submitted by the petitioner, along with tender document, was only provisional and not according to requirement of tender document. 29. The respondents asked the private respondent, the details and particulars wi....
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.... The respondents have further submitted that e-tendering processing fee in the name of Transport Commissioner was not a material deviation. The respondents have further submitted that the Bid Evaluation Committee had considered the eligibility certificate of the respondents No. 3 as it submitted the experience certificate at the time submission of bid but the Bid Evaluation Committee found certain information/clarification while invoking Clause 4.3.7 and as such the respondent No. 3 was asked to provide information/clarification and same cannot be treated to be material deviation. The Bid Evaluation Committee found that the respondent No. 3 had submitted date wise NIC of the last three financial years and as such the respondent No. 3 was not technically disqualified on this ground. 34. The respondents have further submitted that the conduct of the petitioner does not deserve indulgence from this Court as the office of Additional Transport Commissioner, Mumbai Maharashtra, had served a notice upon the petitioner-company with regard to submitting of fake performance of bank guarantee for the project of Smart Card in the State of Maharashtra. 35. The responde....
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....t TH pointed out by the petitioner Relevant Provision in RPB, in any Explanation/submissions OU 2. Non-submission of Board Resolution Not applicable A bare perusal of the RPF makes it evident that the board resolution was never a mandatorily required. Furthermore, a perusal of condition 3.7 (3) of the RBP, makes it evident that only MOA, AOA, Certificate of Incorporation were required and the same has been duly submitted. 3. Non-submission of E-tender Fee of Rs. 1,000/- in the name of "RISL" Section 1 of RBP It is submitted that the demand draft of Rs. 1,000/- was made in the name of Transport Commissioner instead of RISL. This bonafide error was even committed by another bidder namely; Madras Security Printers Pvt. Ltd. and respondent No. 2 has considered that since the adequate amount was paid by the bidders to the Government, therefore, the compliance of condition with regard to payment of fee cannot be termed as incomplete. 4. Submission of Invalid Experience Certificate JASTHAN Condition H 3.7.8 of RBP It is submitted that the answering respondent duly submitted a valid experience certificate issued by NICSI for 5 years ....
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....tures Ltd. Vs. Lakshmi Metal Industries and Constructions & Ors.] reported in 2005(1) ALD 49, [Indwell Construction Pvt. Ltd. Vs. Rail Vikas Nigam Ltd., passed by the Delhi High Court in WP (C) No. 7622/2017 decided on 10.10.2017, [P.L.R. Projects Pvt. Ltd. Vs. The Government of Andhra Pradesh & Ors.] reported in 2012(4) ALD 474, [Finacus Solutions Pvt. Ltd., Mumbai Vs. State of Andhra Pradesh] passed by the Andhra Pradesh High Court in Writ Petition No. 22382/2018 decided on 01.10.2015, [Dale and Carrington Invt. (P) Ltd. & Ors. Vs. P.K. Prathapan & Ors.] reported in (2005) 1 SCC 212, [Shubh Shanti Services Ltd. Vs. Manjula S. Agarwalla & Ors.] reported in (2005) 5 SCC 30, [Agro Impex (I) Pvt. Ltd. Vs. State of Himachal Pradesh] passed by the Himachal Pradesh High Court in CWP No. 5662/2012-G decided on 10.12.2012, [Mohinder Singh Gill & Ors. Vs. The Chief Election Commissioner, New Delhi & Ors.] reported in (1978) 1 SCC 405. 42. This Court, before dealing with the rival contentions of the parties, deems it appropriate to quote the relevant Clauses of the Request for Proposal:- SECTION I: INVITATION FOR BIDS (IFB) & INVITING BID (NIB): "Competitive bi....
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....and Draft in favour of Transport Commissioner, Government of Rajasthan" payable at Jaipur as the cost of the Bidding Process and Bidding Documents and a sum of Rs. 1,000 (Rupees One Thousand only) in the form of Pay Order or Demand draft in favour of Managing Director, RISL payable at Jaipur to the procuring entity/authority. 3.2.2 The bid shall summarily be rejected if it is not accompanied with the sum of money referred above in clause 3.2.1. 3.3. Pre-bid Meeting/Clarifications 3.3.1 Any prospective bidder may, in writing, seek clarifications from the procuring authority/entity in respect of the bidding documents. The clarification sought by the bidder should specifically refer the clause on which clarification is being sought by the bidder. The interested bidder should send the queries as per the following format: Bidder's Request for Clarification Name of Organization submitting request RAJ Name of position of person submitting request: Address of Organization including phone, fax, email points of contract Sr. NO. Bidding Document Reference (Clause/page) Content of RFP requiring clarification Points of Clarification re....
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....r consortium partner should have experience in the field of IT as a System Integrator/Operation with at least one project of worth 15 crore or 3 projects of worth 5 crore each within the last 3 years as on the bid submission date. The experience of State/Central Government/PSU in India shall only be considered. A satisfactory working/completion certificate issued by client or along with the certificate issued by the client towards work in progress for more than one years. The name and contact information (address, telephone number, fax, email id, website) of the client contact person must also be provided. H COUR 15. Power of Attorney (PoA) authorizing signatory for signing of the bid. In the format at Appendix III 4.2 Selection Method: The bids shall be evaluated in terms of the technical criteria laid down in clause 3.7 of the bid. Bidder found eligible in technical evaluation shall only be considered for financial evaluation. Qualifying bidders shall be subsequently evaluated on the basis of financial bid submitted by them. The bidder who offers the minimum "user fees" shall be selected for award of contract. The L1 bidder shall be evaluated on the ....
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....s; or (ii) limits in any substantial way, inconsistent with the bidding documents, the procuring entity's/authority's rights or the bidder's obligations under the proposed contract; or (iii) if rectified, shall unfairly affect the competitive position of other bidders presenting responsive Bids. 4.6 Non-material Non-conformities in Bids (i) The bid evaluation committee may waive any nonconformities in the Bid that do not constitute a material deviation, reservation or omission, the Bid shall be deemed to be substantially responsive. (ii) The bid evaluation committee may request the bidder to submit the necessary information or document like audited statement of accounts/ CA Certificate, Registration Certificate, ISO/CMMI Certificates, etc. within a reasonable period of time. Failure of the bidder to comply with the request may result in the rejection of its Bid. However, document submitted by the bidder, shall not belong to the date after the last day of bid submission date. (iii) The bid evaluation committee may rectify non-material non-conformities or omissions on the basis of the information or documentation received from the....
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....ecords of such conference shall be intimated to all bidders and where applicable, shall be published on the State Public Procurement Portal. 23. Change to bidding documents.- (1) In case any modification is made to the bidding documents or any clarification is issued which materially affects the terms contained in the bidding documents, the procuring entity shall publish such modification or clarification in the same manner as the publication of the initial bidding documents. (2) In case a clarification or modification is issued to the bidding documents, the procuring entity may prior to the last date for submission of bids, extend such time limit in order to allow the bidders sufficient time to take into account the clarification or modification, as the case may be, while submitting their bids. (3) Any bidder who has submitted his bid in response to the original invitation shall have the opportunity to modify or re-submit it, as the case may be, within the period of time originally allotted or such extended time as may be allowed for submission of bids, when changes are made to the bidding documents by the procuring entity: Provided that the bid last sub....
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....y 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 committee may waive any nonconformities in the bid that do not constitute a material deviation, reservation or omission, the bid shall be deemed to be substantially responsive. (2) The bid evaluation committee may request the bidder to submit the necessary information or document like audited statement of accounts, VAT clearance certificate, PAN etc. within a reasonable period of time. Failure ....
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....t cards of worth of more than 75 Lakhs Qty. in last three financial years. Quantity wise card issued Year Rajasthan Project Uttar Pradesh Project 2014-15 1642548 1305000 2015-16 1701332 1339325 2016-17 1698412 1482767 Total 5042292 4127092 The total SCOSTA cards Quantity supplied in last three years is about 916384. SD (Sanjay Mahendru) DGM, NICSI" 46. The respondent No. 3 produced another certificate dt.14.06.2018 with regard to turnover in last three financial years. The said certificate is reproduced hereunder:- "TO WHOMSOEVER IT MAY BE CONCERN This is to certify that M-Tech innovations Ltd. Plot No. P-1/2 Rajiv Gandhi Infotech Park, Hinjewadi, Pune is provide and installed all the required hardware and software, trained man power and required smart cards, consumable for the smart card based DL/RC project in Rajasthan and Uttar Pradesh. It is also certified that M-tech innovations Ltd., have supplied/personalized SCOSTA based smart cards of worth of more than 15 Crore in last three financial years. Rajasthan Project wise financial value Year Qty. Supplied Rate (Rs.)....
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..... 3 for that matter cannot be technically disqualified. 50. This Court finds that when the respondent No. 3 had paid processing fee of Rs. 1,000/- by preparing Demand Draft in favour of the Transport Commissioner not in favour of RISL, the said breach of condition of Clause of note-2 appended in Section I of inviting for bids IFB (NIB) cannot be considered to be material deviation and the wrong nomenclature mentioned in processing fee, may not result into cancellation of the bid itself. 51. The third objection with regard to power of attorney (PoA) authorizing signatory for signing the bid as per format as appendix III is concerned, this Court finds that power of attorney was submitted by the respondent No. 3 and there is no such provision where the Board resolution is required as per the note appended to appendix III which provides a clear stipulation "wherever required, the bidder should submit for verification the extract of the charter, documents such as a board or shareholders resolution/power of attorney in favour of person executing this power of attorney for the delegation of power" 52. This Court finds that objection of the petitioner is basele....
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....asthan Transparency In Public Procurement Act, 2012 and Rules, 2013. 58. The submission of learned counsel for the petitioner that the Tendering Authority is oblized strictly to adhere to standard and requirements laid down by it, there is no quarrel on the proposition of law that the Tendering Authority is required to ask for compliance of standard and requirements as per the tender document. 59. The submission of learned counsel for the petitioner that the Tendering Authority is required to reject bid if it suffers one or material defects, this Court finds that if the bid does not meet the requirement of the bidding document and there is material deviation, reservation or omission, such bid cannot be held to be responsive bid. This Court finds that for defining the material defects, the definition given in the Act of 2012 will determine nature of defects. 60. This Court finds that the Rule 61 of the Rules, 2013 provides that Bid Evaluation Committee may waive any nonconformities in the bid that do not constitute a material deviation, reservation or omission and such bid shall be deemed to be substantially responsive. The Sub-rule (3) of the Rule 61 further gives power to....
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....looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. As held in Ramana Dayaram Shetty the terms of NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata cellular there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone or a decision "that no responsible authority acting reasonably and in accordance with relevant law could have reached" as held in Jagdish Mandal followed in Michigan Rubber. Therefore, whether a term of NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders as held in Ramana Dayaram Shetty. However, if the term is held b....