TaxTMI 
TaxTMI 
2018 (6) TMI 1870
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...., coupled with TEFC squirrel cage foot mounted induction motor suitable for operation with 415 (+-10%) V, 3 phase power supply with star-delta starter at 2nd Stage Pumping Station along with common distribution panel board under Kamakhya Water Supply Scheme" (for short, "the work in question"). 3. The pleaded case of the petitioner, in short, is that in response to the said tender notice, the petitioner, respondent No. 3 and some other tenderers had submitted bids. Prior to floating of the said tender notice dated 05.12.2017, respondent No. 1 had floated another tender notice dated 10.11.2017 for the same purpose and, as all the tenders were found to be technically disqualified on 29.11.2017, the fresh re-tender notice dated 05.12.2017 was issued. It is averred that respondent No. 3 had emerged as the L-3 bidder while the petitioner had emerged as the L-2 bidder. The L-1 bidder was disqualified. However, despite there being various irregularities in the bid of the respondent No. 3, as stated in paragraph 17(a) to 17(h) of the writ petition, the Tender Evaluation Committee, in its meeting held on 14.12.2017 recommended award of the contract in favour of respondent No. 3. It is pl....
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.... Companies Act, 2013 to submit that only in matters elucidated therein, Board of Directors of a company shall have to exercise powers on behalf of the company by means of resolutions passed at the meetings of the Board. He has further submitted that if, for submitting a bid, Board resolution has to be taken to authorize a Director of the Board or any other person, it will not be possible for a company to submit any bid as notice of minimum twenty-one days is required to convene such a meeting. He has submitted that submission of bid is a part of regular business of the petitioner company. In this connection, Mr. Dasgupta places reliance on Section 21 of the Companies Act, 2013. Drawing attention of the court to the "Note" in the first page of the tender notice, he points out that online mode for submission of both technical and financial bid was mandatory and, in that view of the matter, as evident from the affidavit of the respondent Nos. 1 and 2 as well as the affidavit of respondent No. 3, documents such as Single Line Diagram with Built Up Materials (B.O.M.), list of technical persons and their qualifications, etc., were submitted offline by the respondent No. 3 and, therefore,....
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.... earlier tender notice dated 10.11.2017 was not rejected in the meeting held on 29.11.2017 on the ground of non-furnishing of power of attorney. He submits that the fact remains that the bid of the petitioner was rejected on an earlier occasion and even if an additional ground was taken in rejecting the bid of the petitioner, it cannot be said that the respondent Nos. 1 and 2 had waived any requirement when a fresh tender process was initiated again. He also submits that in absence of any power of attorney or any authorization by the Board of Directors permitting a Director to submit bid, the individual action of a Director in the form of submission of a bid cannot bind the company and, therefore, GMC could not have proceeded to entertain the bid submitted by the petitioner without any authorization as it could have led to host of adverse consequences, including multiplicity of litigations, in future. He submits that the petitioner failed to comply with one of the most essential requirements of the tender notice and, therefore, it has got no right to question the decision making process so far as allotment of contract in favour of respondent No. 3 is concerned. Mr. Saikia submits t....
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....aimed that head and discharge would meet the criteria laid down in the tender notice. Mr. Saikia submits that both the respondent No. 3 and the petitioner had also participated in the previous tendering process and if any undue favour was to be shown to respondent No. 3, GMC authorities would have shown such favour on the previous occasion itself. It is submitted by him that the process adopted and the decision taken by the respondent Nos. 1 and 2 cannot be said to be arbitrary or irrational or that the process was mala fide or intended to favour respondent No. 3. He strenuously argues that even if a fine legal point is made out against the award of contract to respondent No. 3, keeping in mind the overall public interest, it is not a fit case for interference. In support of his submissions, Mr. Saikia has placed reliance on the judgment of the Supreme Court in Central Coalfields Limited vs. Sll - Sml (Joint Venture Consortium), reported in (2016) 8 SCC 622. 10. Mr. R. L. Yadav, learned counsel appearing for respondent No. 3 has submitted that the bid of the respondent No. 3 is conforming to the terms and conditions of the tender notice while the petitioner failed to comply with....
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.... Ltd., Kolkata: M/s Debson Pumps Pvt. Ltd. has not submitted the Power of Attorney which is required as per NIT under Clause No. 3(a). Therefore M/s Debson Pumps Pvt. Ltd. is found to be Non-Responsive. 3) For Sujata Enterprise: Quoted Rate: On perusal of all documents submitted Online & Offline the said bidder has been found technically Responsive as per NIT. Considering the urgency of works and in view of the dilapidated condition of the Pump Sets, the Tender Evaluation Committee has decided to consider the tender documents submitted both Online & Offline mode as this is third time that tender for the work has been called for. M/s Sujata Enterprise is found technically qualified and committee has recommended to award the contract to them at their quoted rate of Rs. 49,31,500.00." 14. A perusal of the tender notice dated 05.12.2017 goes to show that fresh bids were invited for the Kamakhya Water Supply Scheme, Guwahati. However, in the heading "Invitation For Bid", the words "Re-bid" also find place. Apparently, the tender notice dated 10.11.2017 and the tender notice dated 05.12.2017 are not identical. While the tender notice dated ....
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....aning thereby, perhaps, that when the technical bids were disqualified in the Technical Bid Evaluation Committee meeting held on 29.11.2017, the bid of the petitioner was not rejected on the ground that it had not submitted power of attorney. No material is placed by the petitioner to demonstrate that the petitioner had not submitted power of attorney in respect of the earlier tender notice dated 10.11.2017. Even if it had not submitted power of attorney and even if the bid of the petitioner was not rejected because of non-furnishing of power of attorney on a previous occasion, the petitioner cannot assume that in future also such omission will be waived or ignored. No plea is taken by the petitioner in the writ petition that it is not possible for a company to execute power of attorney for the purpose of submission of bid. 17. It is also important to notice the prayer made by the petitioner, which is as follows: "It is therefore, prayed that Your Lordship would be pleased to admit this instant writ petition, call for the record, issue Rule calling upon the respondent to show cause as to why: (a) The action of the respondent authorities in issuing the contract ....
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....Directors was held to be too hasty an action. In National Small Industries Corporation Limited (supra), the Supreme Court, referring to Section 291(1) of the Companies Act, 1956, which is pari materia with Section 179 of the Companies Act, 2013, had observed that a company, though a legal entity, can act only through its Board of Directors and that the settled position is that a Managing Director is, prima facie, in charge of and responsible for the company's business and affairs and can be prosecuted for functions by the company and, so far as the other Directors are concerned, they can be prosecuted only if they were in charge of and responsible for the conduct of the business of the company. The decision in Gopalakrishna Trading Co. (supra) as well as in Shakthi Concrete Industries Ltd. (supra) were also in the context of a complaint filed by the company under Section 138 of the 1881 Act. 20. In Dale & Carringtone Invt. (P) Ltd. (supra), the Supreme Court had held that a company is a juristic person and it acts through its Directors who are collectively referred to as Board of Directors and an individual Director has no power to act on behalf of the company of which he is a D....
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....receipt shall be valid for a minimum period of 1 year from the date of opening of tender. In this regard, the tender opening date is December 12, 2017. The respondent No. 3 has submitted such fixed deposit receipt being No. 8541037718-0 having a maturity date of November 21, 2018 and the same does not fulfill the specific mandate of the tender clause. (b) It is further apparent to note that the official website of the Government of Assam has duly uploaded the tender document submitted by various bidders and the same categorically mentions that the fixed deposit receipt submitted by the respondent No. 3 is due to expire on December 28, 2017. (c) As specifically mandated by the tender document, a 10 stage pump was specifically required and bids were to be submitted accordingly. However, it will be apparent from a bare perusal of the tender documents as submitted by the respondent No. 3 that he has submitted his bid in respect of 7/8 stage pumps. In spite of the same, the tender was awarded to the respondent No. 3 by respondent No. 1 in colourable exercise of judicial power. (d) It is further imperative to mention that the respondent No. 3 had not provided S....
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....ecific technical drawings need to have been submitted by the respondent No. 3. In spite of such serious maladies, the respondent No. 1 awarded the tender to the respondent No. 3 for reasons best known to it." 24. Paragraphs 17 (a), (b), (c), (d), (e), (f), (g) and (h) of the writ petition, which are quoted above, are dealt with in the affidavit of respondent Nos. 1 and 2 at paragraphs 13, 14, 15, 16, 17, 18, 19 and 20, which read as under: "13. That as regard to the statements made in paragraph 17(a) of the writ petition, the answering deponent begs to reiterate the statement made in paragraph 8 and 9 of the instant affidavit in opposition. 14. That as regard to the statements made in paragraph 17(b) of the writ petition, the answering deponent begs to state that statements are unfounded and unsubstantiated. 15. That as regard to the statements made in paragraph 17(c) of the writ petition, the answering deponent begs to state that the statements are incorrect and hence denied. The document at page 97 of the writ petition and records clearly indicates that the respondent No. 3 submitted his bid in respect of 10 stage pump. 16. That as regard to....
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....petitioner is false and baseless. (d) Clause no. 25D of the tender specifies the design requirements and features of construction. All pages of the tender were duly signed by respondent No. 3 and deemed to have been accepted by him. This includes no. 25D and 25D(f). (e) As stated in para 17(d) above, all features of construction and design requirements have been accepted by Respondent no. 3. The curve submitted by respondent No. 3 (page 89) is performance curve which gives the performance data of the pump. Besides the respondent No. 3 has duly mentioned the specifications and data (Page No. 97). Therefore, the statement is denied. (f) The list of technical persons is a part of the specifications of Pumps (Page 51, 52) and not the eligibility criteria or pre-requisite for filing of the bid. The petitioners' bid has been rejected by the respondent Nos. 1 and 2 as the bid did not fulfill the basic requirement of NIT and hence found to be non-responsive whereas the respondent No. 3 fulfilled all the eligibility criteria required as per NIT. Hence the statements made by the petitioner in the said Para 13 are not correct on the material facts of the case. ....
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....rn or open condition shall not be considered for opening and the same shall be returned as it is." 28. Thus, Clause 13 reproduced above does not indicate that the tender documents were to be submitted online. Mr. Saikia is correct in submitting that the tender notice could have been drafted in a much better way. 29. In view of the inherent contradiction, I am of the considered opinion that the decision of the Tender Evaluation Committee to consider the tender documents submitted by the respondent No. 3 in both online and offline modes cannot be said to be vitiated by arbitrariness. Even though the tender notice indicated that online submission of bid is mandatory, having regard to Clause 13 of the Detailed Tender Notice (Re-Tender), a balanced view has to be taken and submission of online bid cannot be held to be mandatory as, in that case, specific provision in Clause 13 would have been rendered otiose and nugatory. 30. The relevant clause of the tender relating to Earnest Money reads as under: "TERMS AND CONDITION: *** *** *** 2. Earnest Money: The Tenderer shall, as a condition for consideration of the tender, furnish Earnest Money @ ....