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Judgment
,,
S.K. MISHRA, J.",,
By filing this writ application, the petitioner-Company has prayed to quash the Email dated 4th February, 2020 sent at 06.18. P.M.",,
by the opposite party no.1 to the petitioner-Company intimating the petitioner-Company that as the petitioner-Company had uploaded the documents,,
and attached the file with library folder instead of attaching the same with a specific mineral block(s), the same would not be considered for evaluation",,
of the Technical Bid. The petitioner- Company has further prayed to issue writ in the nature of mandamus directing the opposite party nos.1 and 3 to,,
allow the petitioner-Company to take part in the second stage of e-tender scheduled to be held on 5th February, 2020 and to direct the opposite party",,
nos.1 and 3 to withhold the declaration of result pending final hearing and order of the writ application.,,
This matter was taken up for hearing on 06.02.2020. As all the opposite parties appeared, the matter was taken up for hearing on the question of",,
maintainability and merit at the same time.,,
Mr. S.S. Das, learned Senior Advocate appearing for the petitioner-Company relying upon different Annexures and affidavits filed in Court on that",,
date i.e. on 06.02.2020 submitted that the petitioner-Company had successfully submitted online Technical Bid in all respects which obviously includes,,
the “attachment of all the documents as required under Law/ Bid documents and further the same had been duly acknowledged, following which",,
an email dated 02.01.2020, at 10.47 P.M. (Annexure-4 (Colly)) was received by the petitioner-Company from the opposite party no.1 in",,
acknowledgement of the submission of the Bid. It was further submitted that the said email acknowledgement specifically states that the submission of,,
the bid was for Jiling- Langalota Iron Ore Block. The email correspondences further clear that the acknowledgement in the system is valid, only if the",,
petitioner does not withdraw or delete its bid, which the petitioner never did. Therefore, the above acknowledgement makes the Stage-I complete in all",,
aspects, as the Tender Document under Annexure-1 at page 81 envisages that upon successful submission of initial price offer, the Bidder shall",,
receive a bid acknowledgement from the system automatically, which, therefore, establishes that all the three phases of Stage-I was complete in all",,
aspects. At page 161 under Annexure-4 (Colly), the petitioner-Company had uploaded the required documents viz. (i) Bid letter, (ii) Bank Guarantee",,
and (iii) Power of Attorney, Affidavit, Board Resolution, which are as per Annexures-I, II, III and IV respectively. Following the Stage-I of",,
Technical-cum-Initial Price Offer, the final bid was successfully submitted on 2nd June, 2020 at 10.48.15 P.M. This aspect gets reflected at page 162",,
under Annexure-5 as the petitioner never bid for any other mine, and the document under Annexure-5 further made it abundantly clear that the bid",,
was only for Jiling- Langalota Iron Ore Block, which is in consonance with the Tender Document under Annexure-1 at page 55, which says that a",,
bidder shall submit only one bid for a particular Mineral Block. It was further submitted that Annexure-5 makes it abundantly clear that the petitioner,,
has submitted its Technical Bid, Initial Price Offer and the bid status reflected as “Bid submittedâ€. The said document further left an option",,
with the petitioner-Company to either withdraw bid or delete bid, as reflected in the electronic acknowledgement receipt at page 160, received from",,
the opposite party no.1. Since the petitioner-Company never chose to withdraw bid/ delete bid, the Technical Bid remained valid.",,
Relying upon a decision of the Hon‟ble Supreme Court in the case of Om Prakash Sharma â€"vrs.- Ramesh Chand Prashar and Ors.: reported in,,
AIR 2016 SC 2570, learned counsel for the petitioner-Company submitted that as the petitioner-Company has received such an acknowledgement, the",,
only presumption that can be drawn that it has successfully submitted its Technical Bid, thereby qualifying the petitioner-Company to be a",,
“Technically Qualified Bidder†for the second round of e-auction and, therefore, the petitioner-Company could not have been left out halfway of",,
the bid process, especially when it has satisfactory complied with all the requirements. It was further submitted that the above stand gets further",,
fortified by the fact that the petitioner-Company never received any communication from the opposite party nos.1 and 3 showing any deficiency in the,,
documents from the date of submission of bid i.e. 02.01.2020 till 03.02.2020 to cure any defect.,,
Mr. A. Dash, learned counsel for the opposite party no.1, on the other hand, submitted that the petitioner in this writ application has pleaded that",,
due to technical glitches on the website of MSTC-opposite party no.1, the required documents regarding technical bid could not be attached online in",,
the particular folder vis-à -vis „Jilling- Langalota Iron Ore Block‟ as required under the terms of the Tender. It was further submitted that such,,
averments are completely wrong and denied. It was specifically stated that there was no technical glitch in the website of MSTC- opposite party no.1.,,
With respect to the present Tender for „Jilling-Langalota Iron Ore Block‟, the total number of bids submitted was eighteen including the petitioner-",,
Company. Out of the same, seventeen bidders faced any technical issues with regard to uploading of documents online in the particular folder as",,
required under the tender conditions for this particular mine. The assertion of the petitioner-Company that there was a technical glitch in the website,,
of MSTC- opposite party no.1 is stoutly denied. This aspect regarding non-uploading of the relevant documents in the concerned folder has been,,
double checked by MSTC-opposite party no.1.,,
It was further submitted that the auction with regard to several mines in the State of Odisha is going on at the present moment, out of which four",,
mines have already been auctioned. The bidders who participated in the biding process of the four earlier mines never complained of any technical,,
glitch in the website of MSTC-opposite party no.1. Hence, the allegation of the petitioner- Company that there was technical glitch in the website of",,
MSTC-opposite party no.1 is absolutely without any basis.,,
It was also submitted that the decision with regard to qualification and non-qualification of any bidder is taken by the Director of Mines-opposite party,,
no.4. The opposite party no.1 does not take any decision with regard to qualification and non-qualification of any bidder. The limited role of the,,
MSTC-opposite party no.1 in the present case is that of a facilitator wherein various intending bidders submit their bids in the website of MSTC-,,
opposite party no.1. It is relevant to mention that with respect to the present Tender for „Jilling-Langalota Iron Ore Block‟, financial bid is already",,
completed. The process of financial bids started at 16:15 P.M. on 05.02.2020 and was completed at 21:54:29 P.M. on 05.02.2020. Hence, it was",,
submitted that any interference by this Hon‟ble Court at this stage would have the effect of completely setting the clock back and a vital tendering,,
process will be stalled.,,
04.1. It was the further contentions of the learned counsel for the opposite party no.1 that the petitioner has contended in the writ petition that the,,
technical bid was submitted in the website of MSTC-opposite party no.1 which was also duly acknowledged and hence, the opposite party no.1 could",,
not have issued the email dated 04.02.2020 at 06.18 P.M. indicating that the documents have not been submitted in the proper folder. It was,,
contended that such a contention is fallacious and is liable to be rejected. It was stated that as per the process for uploading of documents, once the",,
technical bid is submitted by any bidder, there is a check list which appears automatically. The petitioner-Company in the checklist agreed that it has",,
uploaded and attached electronically all the relevant documents required as per the provisions of the tender document and hence, there was an",,
automatically generated email from MSTC-opposite party no.1 acknowledging that the bid has been received. But, this does not mean that the",,
petitioner-Company attached the bid documents with respect to technical bid for the concerned mine „Jilling-Langalota Iron Ore Block‟ and hence,",,
as per the conditions of tender, the technical bid cannot be considered.",,
04.2. Learned counsel for the opposite party no.1 relied upon a decision of the Hon‟ble Supreme Court in the case oSfo rath,,
Builders â€"vrs.- Shreejikrupa Buildcon Ltd. and another: reported in (2009) 11 SCC 9 wherein it has been held:,,
“13. The prime consideration on which the High Court set aside the award of contract in favour of the appellant is that if the bid of respondent no. 1 was,,
considered in the tender process there would have been saving of public money. However, that would not in any manner justify in going through once again the",,
same tender process, which is always time consuming. Any delay in awarding the contract would only mean increase in the cost of expenditure for cost of",,
Sl. No.Â,Date,Particulars
1.,"02.01.2020 (10.47
PM) (Annexure4
Colly Pg.160)","An acknowledgement email was sent from MSTC to the petitioner
Company wherein it was stated that the bid against “Jilling- Langalota
Iron Ore Block†has been submitted by the petitioner Company.
Further, it was also stated that the said email is only an acknowledgement
from the system without any commitment.
2.,"02.01.2020 (10.48
pm) (Annexure5
Pg.162)","As per the screenshot submitted by the petitioner Company, it is seen
that the technical bid has been submitted by it.
Note: There is no screen shot provided by the petitioner Company
indicating that the documents have been attached.
3.,"03.03.2020
(Annexure6,
Pg.163)","The Directorate of Mines issued a notice regarding the second round of
e-auction wherein it was stated that each technically qualified bidder will
be intimated by e-mail individually regarding the scheduled date for the
second round of e-auction.
Note: Since the petitioner had not attached the documents as required
under Clause 3(a)(i) of Schedule III, it wasn ot treated as technically
qualified bidder and no email was sent to it.
4.,04.02.2020 Pg.170,"At 2.52 PM, the petitioner Company sent an email to MSTC where it
stated;
“We/ Swan Desilting, Pvt. Ltd., have submitted a bid for Jilling-
Langalota Iron Ore Mine. Our technical bid was accepted (both online
and physically) and price bid (online) was accepted “3/1/2020â€. Our
initial price offer was 72% but we haven‟t received any update for
tomorrow‟s auction
Please let us know, if our bid was rejected and if yes, kindly specify the
reason.
5.,04.02.2020 Pg.169,"At 4.23 PM, the petitioner Company sent another email to MSTC
wherein it stated the following;
“On Jilling-Langalota Iron Ore Mine, a bid on behalf of SWAN
Desilting Pvt. Ltd., there seems to be an error on the part of MSTC;
which we are working to rectify, as our physical and online both have
been given and acknowledged as received. Request you to please do not
publish the final list till this sorted.
The copies of physical submission and snapshot indicating the online
submission of technical documents is attached for your kind reference.
 Request your understanding on the same.â€
6.,04.02.2020 Pg.167,"At 5.12 PM, the petitioner Company sent an email to MSTC wherein it
stated;
 “Dear Sir,
This refers to our bid on behalf of Swan Desilting Pvt. Ltd. for Jilling-
Langalota Iron Ore Mine and several correspondences today in this
regard. Evidently, there is an error on the part of MSTC which we
have been requesting them to rectify, as our physical and online both
have been duly submitted and acknowledged. Therefore it would be
appropriate that no further action on the captioned auction process is
taken until this issue is resolved.
While we reserve all our rights under this captioned process, we once
again attach copies of physical submission and screenshot evidencing the
online submission of technical documents and price bid for your kind
reference.
 Request for your understanding.â€
7.,04.02.2020 Pg.166,"At 6.18 PM, MSTC intimated the petitioner Company wherein it stated
the following;
“We regret to inform that we haven’t found any attached
documents against E-tender Ref. No.MSTC/BBSR/ Government o
Odisha/ 89 Bhubaneswar/ 19-20/29719 for JillingLangalota Iron Ore
Block. Further as mentioned in Clause No.3 a.i. of the Schedule III:
“The bidder has to upload the documents & attach them with the
specific tender for the concerned mineral block (s) for which it is
intending to submit the Technical Bid. The bidder should note that only a
file which is “attached†with a specific mineral block (s) shall be
considered during evaluation of the Technical Bid. Files which are not
attached to any mine (s) shall not be considered for evaluation.
You have forgotten attach the required documents which you have
uploaded to library.
Further, we have cross checked from our systems department also
to re-confirm that no documents are found to have been attached.
This is for your kind information please.â€
8.,"04.02.2020
Pg.164","At 7.10 PM, the petitioner Company wrote an email to the MSTC
wherein it stated as follows:
“Further to our correspondence through the day, it may be duly noted
that we think this is evidently a glitch at the end of MSTC, as you would
recall this tender was rescheduled and we had to revise our bid and BG
accordingly required. As you have seen from the documents submitted
online as claimed by you in your library the BG and all documents have
been revised to meet the technical requirements of the revised extended
notice against the captioned block.
 We were given the system acknowledgment as we followed all the
due process as explained and understood by us through you instructions.
We are also to understand that SBI Odisha has intimated on the physical
BG assigned to you for the above captioned mine. We were invited to the
technical bid opening, wherein our physical bid was only accepted once it
was clearly informed to us that our physical bid has only been accepted
based on our online submission. All our documents were duly accepted
and acknowledged at the time of physical opening of our documents at
the technical bid opening in Bhubaneswar.
There seems to be surely a conflict and as per our understanding we also
qualify the top quadrant of the price bid, and we have qualified based on
online submission and physical documents in the entirety.
I refer to you to the clause of Bidding Process, Clause 8.1, sub POINT
A section (ii) which clearly states in case of conflict between documents
submitted electronically and document had DELIVERED
PHYSICALLY, the documents hand delivered physically shall prevail.â€
authorized by him to sign the same or to sue or defend on his behalf.â€,,
Order 29, Rule-(1) of the Code provides for subscription and verification of pleading on behalf of a Company which is quoted as under:",,
“In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or „other principal",,
officer of the corporation who is able to depose to the facts of the case.â€,,
Section 179 of the Companies Act, 2013 provides for the powers of Board which quoted as below:",,
“ (1) The Board of Directors of a company shall be entitled to exercise all such powers, and to do all such acts and things, as the company is authorised to exercise",,
and do:,,
Provided that in exercising such power or doing such act or thing, the Board shall be subject to the provisions contained in that behalf in this Act, or in the",,
memorandum or articles, or in any regulations not inconsistent therewith and duly made thereunder, including regulations made by the company in general meeting:",,
Provided further that the Board shall not exercise any power or do any act or thing which is directed or required, whether under this Act or by the memorandum or",,
articles of the company or otherwise, to be exercised or done by the company in general meetingâ€.",,
(2) No regulation made by the company in general meeting shall invalidate any prior act of the Board which would have been valid if that regulation had not been,,
made.,,
(3) The Board of Directors of a company shall exercise the following powers on behalf of the company by means of resolutions passed at meetings of the Board,",,
namely:â€",,
(a) to make calls on shareholders in respect of money unpaid on their shares;,,
 (b) to authorise buy-back of securities under Section 68;,,
(c) to issue securities, including debentures, whether in or outside India;",,
(d) to borrow monies;,,
(e) to invest the funds of the company;,,
(f) to grant loans or give guarantee or provide security in respect of loans;,,
(g) to approve financial statement and the Board‟s report;,,
(h) to diversify the business of the company;,,
(i) to approve amalgamation, merger or reconstruction;",,
(j) to take over a company or acquire a controlling or substantial stake in another company;,,
(k) any other matter which may be prescribed:,,
Provided that the Board may, by a resolution passed at a meeting, delegate to any committee of directors, the managing director, the manager or any other principal",,
officer of the company or in the case of a branch office of the company, the principal officer of the branch office, the powers specified in clauses (d) to (f) on such",,
conditions as it may specify:,,
Provided further that the acceptance by a banking company in the ordinary course of its business of deposits of money from the public repayable on demand or,,
otherwise and withdrawable by cheque, draft, order or otherwise, or the placing of monies on deposit by a banking company with another banking company on such",,
conditions as the Board may prescribe, shall not be deemed to be a borrowing of monies or, as the case may be, a making of loans by a banking company within the",,
meaning of this section.,,
Explanation I.â€"Nothing in clause (d) shall apply to borrowings by a banking company from other banking companies or from the Reserve Bank of India, the State",,
Bank of India or any other banks established by or under any Act.,,
Explanation II.â€"In respect of dealings between a company and its bankers, the exercise by the company of the power specified in clause (d) shall mean the",,
arrangement made by the company with its bankers for the borrowing of money by way of overdraft or cash credit or otherwise and not the actual day-to-day,,
operation on overdraft, cash credit or other accounts by means of which the arrangement so made is actually availed of.",,
(4) Nothing in this section shall be deemed to affect the right of the company in general meeting to impose restrictions and conditions on the exercise by the Board of,,
any of the powers specified in this section.â€,,
In this case, having considered the affidavit filed by the Authorised Officer and the contents of the Annexure annexed herein as Annexure-1/1, we",,
are of the opinion that there is sufficient compliance of requirement of law and the writ petition is maintainable. Question no.(i) at paragraph-7 above,,
is answered accordingly.,,
09.1. So far as question no.(ii) at paragraph-7 above is concerned, placing reliance on the judgment of the Division Bench of the High Court of",,
Madhya Pradesh, Jabalpur passed in the case of Sunflag Iron and Steel Co. Ltd. â€"vrs.- State of M.P.: 2019 (1) M.P.L.J.689; we are of the opinion",,
that the technical bid of the petitioner-Company has been rightly rejected, as the petitioner-Company has failed to attach documents as required in the",,
tender conditions. In the said judgment i.e. in the case of Sunflag Iron and Steel Co. Ltd. (supra) it has been held as follows:,,
“8. The stand of the respondent is that the document at page 146 is only in respect of part of Bid Floor Manager, which is one of the three sub- menus under the",,
heading ""My Menu"". The petitioner had completed the second sub-menu of ""Upload Documents"" and not the third menu ""Attach Documents"". Therefore, the",,
petitioner has not completed the submission of technical bid online, which does not entitle the petitioner to participate in online auction process. It is further pointed",,
out that as many as 33 bidders have been found to be technically qualified in the notice published on 10.05.2018, therefore, the contention of the petitioner is",,
untenable as large number of bidders have completed the same online system of technical bids.,,
xx xx xx xx xx xx xx xx xx xx xx xx xx xx.,,
We do not find any merit in the arguments of the learned counsel for the petitioner. The third sub-menu of ""Attach Documents"" is part of the tender conditions.",,
The petitioner has made omnibus statement that the conditions of the Notice Inviting Tender were complied with but in support of the said contention the petitioner,,
has relied upon two screen-shots i.e. ""Upload Documents"" at page 145, which deals with the second stage of sub- menu whereas screen-shot at page 146 is to the",,
effect that the final bid has been successfully submitted including the technical bid and initial price WP-11068-2018 offer. The said screen-shot (at page 146) is taken,,
at 3.27 PM on 24.03.2018. Such screen-shot is, in fact, compliance of the first sub-menu of Bid Floor Manager as per the conditions mentioned above that is after",,
saving the Technical Bid, the link/button for Initial Price Offer shall get activated. The Bidders are then required to fill up its Initial Price Offer and click on the Final",,
Submission button by digitally signing the said stage. Therefore, the submission of Initial Price offer is the first stage of first sub menu. The second screen shot (at",,
page 145) of ""Upload Documents"" shows that the documents have been uploaded on 23.03.2018 but the screen-shot has been taken at 2.19 PM on 12.05.2018.",,
A perusal of the tender conditions mentioned above shows that after accessing ""My Menu"", three sub-menus will appear i.e. ""Bid Floor Manager"", ""Upload",,
Documents"" and ""Attach Documents"". In the link ""Bid Floor Manager"", the menu will display a list of mines for which the bidder has paid the tender document fee.",,
On clicking on any of these mines, the bidder will be directed to a screen where it can fill up the technical bid template and save the data. After saving the technical",,
bid, the link for initial price offer shall get activated. The final submission shall be digitally signed by the bidder using its registered digital signature.",,
The screen-shot (Annexure P-6) at page 146 is in respect of final bid successfully submitted, which shows submission of technical bid and initial price offer. The",,
documents have been uploaded on 23.03.2018 though the screen-shot has been taken on 12.05.2018. However, neither there is any averment that the third sub-menu",,
of ""Attach Documents"" was completed nor WP-11068-2018 is there any screen-shot of attaching documents produced. In fact, the third sub-menu contemplates that",,
after submission of initial price offer, the bidder shall receive a bid acknowledgment from the system automatically. As per the petitioner, Annexure P-6 at page 146 is",,
the acknowledgment but that is not contemplated by the tender document, as the acknowledgment has to be received, which obviously mean by email. The petitioner",,
has not received any email that three sub-menus have been completed by the petitioner. Since the petitioner has not furnished the technical bid at the first stage,,
itself, therefore, the bid of the petitioner has been rightly rejected on the ground that technical bid has not been received.",,
The sub menu, of uploading documents, is like a reservoir of documents, out of which the documents are required to be attached out of the documents uploaded.",,
The files have to be attached before a bidder is permitted to participate in the bidding process. The instructions are clear and categorical when it is stated that after,,
uploading of the documents, the bidder shall have to attach them with the specific tender for the concerned mine for which it is intending to submit the Technical Bid.",,
It was also brought to the attention of the bidders that in case they intend to use the same supporting document for more than one mine, they do not need to upload",,
the same document every time. The supporting document, once uploaded, can be attached with Technical Bid for multiple mineral block(s), if desired. It was",,
specifically stated that ""the bidder should note that only a file which is ""attached"" with a specific mine(s) shall be considered during evaluation of the Technical Bid.",,
Files which are not attached to any mine(s) shall not be considered for evaluation"".",,
After careful consideration of the matter, in the light of the decision of the Hon‟ble Supreme Court in the case of Sunflag Iron and Steel Co. Ltd.",,
(supra), we are of the opinion that the petitioner-Company has not furnished the technical bid at the first stage itself, therefore, the bid of the",,
petitioner-Company has been rightly rejected on the ground that technical bid has not been received. Question no.(ii) at paragraph-7 above is,,
answered accordingly.,,
09.2. Coming now to the 1st part of question no.(iii) at paragraph 7 above with regard to non-compliance of condition of attachment of the document,",,
we have no doubt that the petitioner-Company has failed to satisfy that non-compliance of condition of attachment of the document is not a deviation,,
in the terms of NIT, in view of the principles “where a power is given to do a certain thing in a certain way the thing must be done in that way or",,
not at allâ€. In the case of Central Coalfields Limited and Another â€"vrs.- SLL-SML (Joint Venture Consortium) and Others: reported in (2016) 8,,
SCC 622, the Hon‟ble Supreme Court applying the principle “where a power is given to do a certain thing in a certain way the thing must be done",,
in that way or not at allâ€, held that, “if the employee prescribes a particular format of the bank guarantee to be furnished, then a bidder ought to",,
submit the bank guarantee in that particular format only and not in any other formatâ€.,,
In that view of the matter, the 1st part of question no.(iii) at paragraph 7 above is answered.",,
09.3. Further coming to the 2nd part of question no.(iii) of paragraph-7 above relating to non-essential condition, we placed reliance on the judgment of",,
the Hon‟ble Supreme Court in the case of Poddar Steel Corporation-vrs.- Ganesh Engineering Works and Ors.: reported in (1991) 3 SCC 27,3",,
wherein the Hon‟ble Supreme Court has considered the conditions which are essential conditions of eligibility and those which are ancillary or,,
subsidiary with the main object to be achieved and observed as follows:,,
“………As a matter of general proposition it cannot be laid down that an authority inviting tenders in bound to give effect to every term mentioned in the notice,,
in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirement in a tender notice can be classified into two",,
categories-those which lay down the essential conditions of eligibility, and the other which are merely ancillary or subsidiary with the main object to be achieved by",,
the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other case it must be open to the authority to deviate,,
from and not to insist upon the strict literal compliance of the condition in appropriate cases.â€,,
The answer to this question is concluded in view of the above referred decision. We are of the opinion that the condition violated by the petitioner-,,
Company is one of the essential conditions. Hence, violation of it makes the bid of the petitioner-Company liable to be rejected.",,
Accordingly, the aforesaid three questions have been answered and basing upon them, we are not inclined to entertain this writ petition and the",,
same being devoid of merit is dismissed.,,
There shall be no orders as to costs.,,