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Judgment
Sanjay Kishan Kaul, C.J.—The respondent No. 2 invited bids for supply of 15000 metric tonnes of agricultural grade gypsum by e-tendering process on 25.4.2013 in which petitioner participated. It is the case of the petitioner that the bid was properly filled in. However, it is not disputed that Schedule "C" was not enclosed duly signed. The respondent No. 3 also participated in the tender. The technical bids were opened on 21.5.2013 followed by financial bids. The financial bid of respondent No. 3 is stated to be Rs. 58 lacs more than the bid of the petitioner. However, the bid of the petitioner was rejected on the ground that it did not contain the Schedule "C" duly filled in. The petitioner approached this Court by filing CWP No. 12908 of 2013 which was disposed of with a direction to respondents to call for the record and verify the allegations of the petitioner before accepting the bid of respondent No. 3. It is thereafter in pursuance to the said order dated 31.5.2013 that the impugned decision dated 8.7.2013 has been passed which is now sought to be assailed after a period of two months.
The impugned order is a well reasoned order dealing with the various aspects of the tender. It has pointed out the significance of Schedule "C" which incorporates conditions for supply of goods and contains 48 terms and conditions. A tenderer was required to read and accept the terms and conditions of the tender which, undisputedly, the petitioner failed to do. Since no other tender except that of respondent No. 3 was fulfilling the requirements, a decision was taken to award the tender to respondent No. 3, but after some negotiation of rates. This negotiated rate was found to be reasonable as per the internal mechanism of the respondents. The plea that Schedule "C" was not an essential document has been specifically rejected in Para-8 of the impugned order with reasons.
The second limb of the plea of the petitioner has also been dealt with in the impugned order, i.e., the alleged non-qualification of respondent No. 3. This plea is predicated on non-submission of documents as per Clauses 7, 8 and 11. We would like to extract the relevant portion as under:-
8.0 The available record indicates that Schedule ''C'' of the tender document is an essential document, clearly spelling out terms and conditions of the purchase. All the tenderers were required to sign and submit this document alongwith their respective bid. Non-submission of this document clearly implies that the tenderer did not agree with some or all these conditions and therefore, the tender document without Schedule ''C'' cannot be considered complete. Insofar as non-submission of documents as per clause 7, 8 and 11 by M/s. Indian Potash Ltd. is concerned, as per clause 7, in case the tenderer was a manufacturer a copy of manufacturer license was to be submitted, but M/s. Indian Potash Ltd. is a supplier and not a manufacturer. As per clause 8, in case the tenderer was a dealer, the dealership certificate was required to be attached, but M/s. Indian Potash Ltd. is merely a supplier for which requisite proof has been attached. As per clause 11, the tenderer was required to quote the make and models of the item alongwith complete printed literature. M/s. Indian Potash Ltd. have met with these requirements. Further, it is not known whether financial bid of the petitioner was lower than M/s. Indian Potash Ltd., because their financial bid was never opened.
Learned counsel for the petitioner seeking to assail this order once again canvasses the proposition that Schedule "C" was not significant in view of the fact that Schedule "B" had been filled in. Learned counsel contends that only the Schedule "B" was the essential document to be filled in because that is what was required to be filled in as an essential term.
We have perused the format of the tender form. Instructions to tenderers are required to be signed and accepted which contain 13 conditions and Clause-11 thereof specifies that "Other conditions of supply of stores are given in schedule "C"". This is followed by Schedule "B" which contains 19 terms and is once again required to be read and accepted with signatures. Schedule "C" contains 48 terms and conditions and is required to be read and accepted on each of the three pages containing these terms and conditions. Such reading and acceptance has to be with the signatures of the tenderer. Each page at the bottom contains the followings:
Read and accepted Signature of the Tenderers
We fail to appreciate how the petitioner, a commercial party dealing with submission of tenders online, can be permitted to contend that despite the aforesaid, the non-signing and, thus, fulfilling the terms and conditions of tender is not material for purposes of analysis and acceptance of the tender. Such a plea is only to be stated to be rejected.
Learned counsel for the petitioner, faced with the aforesaid position, still seeks to canvass the proposition that terms and conditions are vague and in that behalf seeks to rely upon the judgments of the Hon''ble Supreme Court in Dutta Associates Pvt. Ltd. Vs. Indo Merchantiles Pvt. Ltd. and Others, and Reliance Energy Limited and Another Vs. Maharashtra State Road Development Corporation Ltd. and Others, . In fact, the crux of the plea is that legal certainty is an important aspect of rule of law and if there is vagueness and subjectivity in the norms, it may result in unequal and discriminatory treatment and may vitiate the doctrine of rule of law. We fail to appreciate how these judgments assist the petitioner as there can be no quibble with the proposition but the question is how is the level playing field violated where the petitioner has not filled in a part of the tender.
Learned counsel also seeks to rely upon the judgment of the Division Bench of the Delhi High Court in Consortium of M/s. Siemens Aktiengesellschaft and Siemens Ltd. vs. Delhi Metro Rail Corporation Ltd. and Anr., W.P.(C) No. 1853/2013 and connected matters decided on 15.5.2013. In fact, the paragraphs relied upon are really only extracted portions of the judgment of the Supreme Court in Union of India (UOI) and Another Vs. International Trading Co. and Another, to the extent they lay down the proposition that the State must act validly for discernable reasons and not whimsically for ulterior purposes. Para-24 of the judgment of the Supreme Court relied upon reads as under:-
Therefore, a court before interfering in tender or contractual matters, in exercise of power of judicial review, should pose to itself the following questions:
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached"? and
(ii) Whether the public interest is affected?
If the answers to the above questions are in the negative, then there should be no interference under Article 226.
The aforesaid rather negates the case of the petitioner than supporting it. It applies the Wednesbury''s principle that in judicial scrutiny of administrative action, a Court does not sit as a Court of appeal but interferes only if it finds that no reasonable person acting in accordance with law would have reached such a conclusion.
The petitioner not being able to qualify, learned counsel for the petitioner now turns to seek disqualification of respondent No. 3 by contending that three Clauses were not correctly filled in by the said respondent and the relevant documents not disclosed. This aspect has been fully dealt with in Para-8 of the impugned order dated 8.7.2013 pointing out that respondent No. 3 was neither a manufacturer nor a dealer and, thus, those documents were not required to be submitted.
The last limb of the submission of learned counsel for the petitioner is that since the financial quote is lower, public revenue would suffer. In our view, this does not mean that a disqualified person can become qualified. Not only that impugned order shows apparently that financial bid of the petitioner was never opened. Thus, the question whether the tender authority should have negotiated further with respondent No. 3 or not really does not arise and, in any case, cannot form subject matter of judicial scrutiny.
This is the second round of litigation by the petitioner and the petitioner itself did not fulfil the essential requirement of filling in the tender form correctly. The first round gave him the right to have reasons for non-acceptance of his tender wherein detailed and clear reasons are recorded. Yet, second round is started. This is complete wastage of judicial time and in such commercial matters the petitioner must bear the financial consequences for the same. The petition is, accordingly, dismissed with Rs. 10,000/- as costs, to be deposited with the Mediation Centre.