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Judgment
Sharad Kumar Sharma, J
The petitioner in the present writ petition has questioned the grant of Tender in favour of the private respondents for running the Zoo Shuttle Taxi Service for the year 2018-19, which was to commence from 01.08.2018 and end till 31.07.2019. The prayer made by the petitioner in the writ petition was to quash the Tender and secondly, the prayer was made to blacklist respondent Nos. 4 and 5 and forfeit their earnest money on account of their collusion with Nagar Palika and consequent thereto a prayer of mandamus has been sought for with a direction to the respondents for accepting of the technical bid of the petitioner after quashing its rejection as mentioned in the impugned Office Memorandum dated 27.07.2018 and directing the respondent to reconsider the financial bid of the petitioner as well.
The Nagar Palika for the purposes of procuring 200 shuttle service, issued a publication in the daily namely Hindustan and Amar Ujala on 10.07.2018, besides uploading it on the website. The entire system of procuring the services was a twin bid system i.e. Technical and Financial, and as per tender condition for participation in the financial bid, the pre condition was to qualify and satisfy the conditions of the 1st phase of bidding that is Technical Bidding. In the counter, it's the case of the respondents that petitioner's bid was not found as per clause 2 of tender notice dated 10.07.2018, as only fully uploaded bids was to be accepted in the e-tendering process resorted by the respondents. The last date as scheduled in the publication for uploading the bids as per clause 2 was extended from 23.07.2018 till 1:00 P.M. to 24.07.2018 12:00 noon. The case of the respondents is that the petitioner cannot have any grievance because the representatives of all the three bidders were present on 24.07.2018, when the technical bid was opened. It was ultimately found that petitioner failed in uploading the requisite documents thus failed in the first phase of the twin bid system.
Before venturing into the case as argued by the learned counsel for the petitioner, it is essential to deal the conditions of tender as floated by the Nagar Palika, Nainital as contained in its publication made on 10.07.2018. Rather dealing with the conditions of tendering, the relevant would be reference to clause '7' and clause '11' of the tender documents which are quoted hereunder:-
'' 7. तकनीकी निविदा में अर्ह पाये गये निविदादाताओं की वित्तीय निविदा खोली जायेगी। अस्वीकृत निविदा के सम्बन्ध में निविदादाताओं को सूचना नगर पालिका द्वारा www.uktenders.gov.in पर अपलोड की जायेगी। इस सम्बन्ध में पालिका का निर्णय अन्तिम एवं बाध्यकारी होगी। अधिकतम मूल्य प्रस्तुतकर्ता को कार्य का आबंटन किया जायेगा। जिसकी धरोहर राशि 31.07.2019 तक बन्धक रहेगी। द्वितीय स्थान पर रहे निविदादाता की धरोहर धनराशि अधिकतम बोलीदाता के प्रथम किस्त जमा करने के उपरान्त वापस की दी जायेगी। शेष निविदादाताओं की धरोहर धनराशि को निविदा पर अन्तिम निर्णय होने के पश्चात 30 दिवस में वापस कर दी जायेगी।
तकनीकी बिड में अर्ह पायी गयी निविदाओं का ही वित्तीय बिड खोली जायेगी। इस सम्बन्ध में पालिका का निर्णय अन्तिम एवं बाध्यकारी होगी।.
With the initiation of tendering process, which according to the petitioner was opened by the Bid Valuation Committee on 24.07.2018, apart from certain procedural flaws which has been pleaded in the writ petition, the petitioner in para 9 of the writ petition had specifically pleaded himself that the technical bid, which was uploaded by the petitioner was admittedly not fully uploaded in accordance with the specified folder in the Uttarakhand Online Tender Website of e-procurements system, rather admittedly it was uploaded by the petitioner on 'My Document' folder which constituted to be the reason for rejection of his technical bid. In fact, there was no procedural flaw committed by the respondent in rejection of the technical bid of the petitioner, as, as per his own case it was not submitted as per the procedure provided in the tender document.
As a consequence of the pleading raised in para 9 in the writ petition which is quoted hereunder. The aforesaid fact amounts admission of the procedural of law committed by the petitioner in furnishing his technical bid:-
"9. That the petitioner's documents required in technical bid were not fully uploaded at specified folder in Uttarakhand online tenders website of e-procurements system rather they were being uploaded at My Documents folder which was not appreciated by the committee, hence committee not accepted Petitioner's technical bid though the said documents were available before the committee. Therefore, only due to mistake in uploading documents online Petitioner's Technical bid was not considered rather Petitioner is having all the relevant documents in original which are valid and genuine."
It goes without saying that as soon as technical bid of the petitioner stands not to be in consonance to the procedure prescribed by the tender documents dated 10.07.2018, the petitioner looses his rights to be considered for the second stage of tendering that is consideration in the financial bid conducted by the Nagar Palika for the grant of work in pursuance of the tender dated 10.07.2018.
In the tender notice dated 10.07.2018, inviting tenders and the tendering process as it was provided a twin bid system, the technical bid was proposed to be opened at 3:00 P.M. of 23rd July, 2018 and those who only qualify technical bid were to be permitted to participate in the financial bid was to be opened in relation to only those bidders who qualify the technical bid. As per tender notice and process contemplated to be followed for opening the tenders was by e-tendering process which was provided under clause 2, which reads as under:-
"2 निविदा को ई-टेण्डरिंग प्रणाली के माध्यम से उत्तराखण्ड सरकार की ई-टेण्डर वेबसाइट पर ऑन लाईन अपलोड करना होगा अन्यथा निविदा स्वीकार नहीं की जायेगी। निविदा प्रपत्र निम्नवत प्रस्तुत किये जाने हैं:-
(क) तकनीकी बिड (ख) वित्तीय बिड
तकनीकी बिड :- इसके अन्तर्गत तकनीकी निविदा को पूर्णतया भरकर एवम हस्ताक्षरित कर सभी वांछित अभिलेखों सहित स्कैन कर च्ण्क्ण्थ्ण् फार्मेट में ऑनलाईन अपलोड करना होगा।
वित्तीय बिड :- वेबसाइट से डाउनलोड कर ठपककमते नेम एवं एड्रेस एवं मूल्य भरना होगा। तत्पश्चात ऑनलाइन अपलोड करना होगा।
ई-निविदा के तकनीकी बिड की मूल प्रति/हार्ड कापी अर्नेस्टमनी तथा निविदा प्रपत्र के मूल्य का मूल इंसटूमैंट, अर्नेस्टमनी इंस्टूमेंट एवं तकनीकी बिड के साथ अपलोड किये गये अभिलेखों की एक प्रति निविदा खोलने की तिथि को मूल रूप प्रस्तुत करनी होगी।
Apart from the tender conditions and its strict compliance which was one of the essential conditions to make the bidder eligible, the condition contained in clause 7 and 11 of the tender documents would be also essential where Nagar Palika or the tender committee had reserved its rights; pertaining to attaching finality to the tendering decision taken by the committee, these conditions will equally bind the petitioner, particularly, according to his own admitted case regards the discrepancies in his own technical bid and its mode of submission. More particularly, when it was a decision of the procurement committee as provided under the Procurement Rules 2017, particularly a reference to Rule 20(16) which is quoted hereunder:-
"(सोलह) अपर्याप्त प्रतिस्पर्धा केवल निविदादाताओं की संख्या पर आधारित नहीं होगी। यदि केवल एक ही निविदा प्राप्त होती है तो प्राप्त निविदा को निरस्त करते हुए निविदा शर्तों की विशिष्टियों का पुनर्परीक्षण करते हुए पुनः निविदा आमंत्रित की जाए। यदि पुनः एक निविदा प्राप्त होती है तो उस पर निम्न प्रतिबंधों के अधीन विचार किया जा सकता हैः-
अ) निविदा का प्रयाप्त प्रसार किया गया हो तथा निविदा प्रस्ताव देने हेतु प्रयाप्त समय उपलब्ध कराया गया हो (The procurement was satisfactorily advertised and sufficient time was given for submission of bids)
ब) निविदा की शर्तें /विशिष्टियां अनावश्यक रूप से सीमित न रही हो। (The qualification criteria/Specification were not unduly restrictive)
स) निविदा में दी गई दरें बाजार भाव की तुलना में उचित हों ; Prices are reasonable in comparison of market values)-
परन्तु उक्त प्रयोजन हेतु यदि एक वित्तीय अर्ह निविदा प्राप्त होती है तो वह एक प्रतिक्रिया (Single response) मानी जायेगी।"
In reference thereto, it would be essential to consider on and remark on one of the authorities relied by the learned counsel for the respondent as reported in 2018 (3) SCC 13, Maharashtra Housing Development Authority v. Shapoorji Pallonji and Company Private Limited and others, wherein the Hon'ble Apex Court almost dealing with an identical situation, where the biding documents submitted by the bidder was not in consonance to the conditions prescribed for online submission of the tenders and consequently had upheld the rejection of the bid, consequently it resulted into the rejection of the technical bid. The para 9 of the said judgement would be relevant for the purposes of the present case which is quoted hereunder:-
"9. If the NIC, which had developed the e-portal in which bids were to be submitted and maintenance and upkeep of which was its responsibility, had stated in its affidavit what has been indicated above, we do not see how the repeated statements made on behalf of the first respondent that the bid documents can still be retrieved, if required by traveling beyond the Government of India guidelines, should commend to us for acceptance. The opinion rendered in this regard by the consultant of the first respondent Mr. Arun Omkarlal Gupta on which much stress and reliance has been placed by the first respondent could hardly be determinative of the question in a situation where the NIC which had developed the portal had stated before the Court on affidavit that retrieval of the documents even jointly with Maharashtra Housing Development Authority is not feasible or possible. That apart, lack of any timely response of the first respondent when the system had failed to generate an acknowledgement of the bid documents in a situation where the first respondent claims to have pressed the 'freeze button'; the generation of acknowledgements in respect of other bidders and the absence of any glitch in the technology would strongly indicate that the bid submitted by the first respondent was not a valid bid and the directions issued by the High Court in favour of the first respondent virtually confers on the said respondent a second opportunity which cannot be countenanced.
As soon as the candidature of the petitioner stood rejected as per tender conditions even prior to its consideration for qualifying for the financial bid and also considering the rights which was reserved by the Municipal Board under clause '7' and '11' of the tender documents, wherein the Nagar Palika has reserved its right to reject the tender without assigning any reasons the argument of the petitioner that no opportunity of hearing was provided becomes untenable and further that the rejection of technical bid would be binding on both the parties to the contract as it was the accepted condition of bidding which will equally bind the petitioner too.
Once the petitioner by virtue of relief 3 seeks to avail the benefits of re-consideration of his tender for the grant of the contract after setting aside the tender process which already concluded as back as on 25.07.2018, the effect would be that the relief no. 3 would run contrary to the provisions contained under the tender document and also as contrary to ratio as propounded by the Hon'ble Apex Court, relied by the respondents. Because even if for the argument as extended though not sustainable, the contract, which already stands settled with the respondent No. 4 was, as per the terms of the bidding documents and the process contemplated therein and the total period of contract is now almost about to end in the month of July, 2019. The exercise would be a futile exercise in view of the pleadings of para 9 of the writ petition itself.
So far this writ petition deserves to be dismissed on this ground only that the petitioner cannot be permitted to take an advantage of his own fault, more particularly, when admittedly he has not submitted the technical bid in accordance with the conditions of the Tender Notice dated 10.07.2018, even if he succeeds though he hasn't in questioning the tender already granted to respondent No. 4, still he would have no benefit derived out of the said, as challenge to the rejection of his technical bid is not in question nor it could have been questioned in the present writ petition due to the flow of the petitioner himself.
Rather to the contrary if the relief No. 3, is read in precision, apart from the fact that it amounts to an admission of fault because it has sought a prayer for permitting the petitioner to rectify the mistake(s) which he has admittedly committed resulting into rejection of his technical bid, obviously that cannot be granted now at this belated stage, and to permit to put the clock back denovo and that too because of his own mistake.
Owing to the above, since in the light of the judgement of the Hon'ble Apex Court as reported in the Maharashtra Housing Development Authority's case (Supra) and in the light of admitted case of the petitioner himself, this Court is of the view that the petitioner has no cause of action, as such as of now as against grant of the bid in favour of respondent No. 4.
Thus, the writ petition fails and is accordingly dismissed.
However, there would be no order as to cost.