Audo Viso Private Limited vs Union of India (UOI) and Others

S.K. Gupta, J.—In response to the tender floated by the respondents on 16/12/2002 for purchase of 540 number of spotter scopes, the

petitioner also participated and submitted his tender on 10/01/2003. That after opening the price bid, it was found that the price quoted by M/S

Bharat Electronics Limited (for short B.E.L. hereinafter) was Rs. 56712 which included spotter scope/Photo adopter/Camera Mount/Tripot and

carrying case but price of 20x to 60x zoom was mentioned in the optional. It is stated that since no representative of B.E.L. was present at the time

of opening the price bid, respondent No. 3 insisted upon the Tender Purchase Committee to enquire from B.E.L. on telephone to clarify whether

20x to 60x zoom was included in the price quoted by B.E.L. That the B.E.L., however, agreed that the price quoted by them includes 20x to 60x

zoom as well which was contrary to the price bid in the tender wherein it is indicated that 20x to 60x zoom was optional. It is also stated that the

rates one quoted by the petitioner and another quoted by B.E.L., if compared, the rates quoted by the petitioner were much less than the rates

quoted by B.E.L.; because of the package of the petitioner firm included 20x to 60x eye piece and mentioned in the price bid. That the

respondents in order to give benefit to the B.E.L., considered them to be the lowest tenderer/bidder and proposed to allot the work for supply of

equipment in favour of the B.E.L., in ignoring arbitrarily the rates quoted by the petitioner being the lowest for the said equipment. The petitioner

submitted that he again represented to the respondents on the slashing of the price of dollar in the international market and further reduced their

rates to Rs. 53,845/- but the respondents attempted to reject the offer notwithstanding that in ignoring the lowest bid of the petitioner, a great loss

would occasion to the public exchequer. That the action of the respondents in making the allotment of work for supply of spotter scopes to B.E.L.,

being illegal and in violation of the rules, the petitioner seeks the indulgence of this Court to issue a writ of mandamus directing the respondents to

allot the supply order to the petitioner firm in pursuance of the Tender No. PC-28706/Pro/SS/01/A/Arty dated 16/12/2002.

The specific stand of the respondents in their reply is that M/S Bharat Electronics Limited being found lowest tenderer at the time of opening of the

tender, in the instant case, the question of awarding of supply order to the petitioner could not be considered. The petitioner having quoted higher

rates than that of the B.E.L., with whom the contract has been concluded and supply order allotted, no legally enforceable right has accrued to the

petitioner so as to maintain the present writ petition. The price quoted by M/S B.E.L., was Rs. 56712/- against the quoted price Rs. 59500/- by

the petitioner. The optional category of Eye pieces, however, was not considered in either of the case. To ensure transparency, it was clarified

from M/S B.E.L., in presence of the petitioner that 20x to 60x Eye piece in the optional category as part of basic equipment, as M/S B.E.L., was

identified the lowest tenderer. It was further submitted that B.E.L., having quoted the lowest rates, identified as confirmed, negotiations could be

carried out only with the lowest. In such circumstances, the petitioner could not claim negotiations or allotment of supply order to him in ignoring

the lowest rates quoted by B.E.L. Subsequent communication dated 22/05/2003 by the petitioner, offering reduction in price was to bring below

to price quoted by B.E.L., could not be entertained for obvious reason that the petitioner was not lowest tenderer at the time of opening of the

tender and more particularly when lowest rates quoted by B.E.L., has not been challenged. The question of entering into negotiations with the

petitioner after opening of the tender, when the lowest price quoted by B.E.L., was identified, could not be made under existing rules. This could at

best be treated as a fresh bid/fresh tender and could not be taken into account after the contract has been concluded and supply order allotted to

M/S B.E.L., after having considered the lowest rate quoted by him for the supply of the equipment, which included the optional category as well.

After hearing learned counsel for the parties and perusing the record, it is indisputably gatherable that the rates quoted by the petitioner for the

supply of the equipment in his tender in response to the tender notice issued by the respondents, were higher than the rates quoted by M/S B.E.L.

The tenders were opened in presence of the tenderers and rates quoted by M/S B.E.L., were found lowest for the supply of the equipment, by the

respondents, The lowest rates quoted by M/S B.E.L., have since been confirmed and supply order allotted to him. Assuming but not admitting that

the rates quoted by the petitioner were lowest as compared to the rates quoted by M/S B.E.L., for the supply of equipment, then what prompted

the petitioner to offer revised rates vide communication dated 22/05/2003 in lowering the rates than the rates quoted by M/S B.E.L., for the

supply of the equipment and that too after the contract has been concluded and supply order allotted to the M/S B.E.L. The admitted position

emerging out of the record in this case is that M/S B.E.L. had quoted lowest rates for the supply of the equipment which came to be identified and

confirmed by the respondents. The negotiations could be carried out with the tenderer whose rates are found to be the lowest. The revised price

offered by the petitioner after his bid was found highest at the time of opening of tenders and that too subsequent to the contract having been

concluded and supply order allotted to the bidder having quoted the lowest rates, cannot be entertained. Even the minutes of the Tender Purchase

Committee annexure '3' with the reply at para 12, clearly enumerates that the rate quoted by M/S B.E.L., was the lowest. For facility of reference

Clause 12 is reproduced as under:-

Based on the recommendations of the TEC and the comparative price, the model LEICATELEVID 77 of Bharat Electronics Ltd. was the

lowest, however clarification was required to be obtained from BEL to confirm in writing the list of items incl with each Spotter Scope for the price

quoted @ Rs. 56,712/- per piece. This was also intimated to Mr. Rama Krishnan of BEL on telephone to be confirmed in writing. It was also

indicated that the rep of BEL to come in person with the letter of clarification and price negotiation

It is settled proposition of law that unless the concession rate offered forms part of the tender itself, the same cannot be considered subsequently

which manifestly amounts to a fresh tender. An offer made separately much later cannot be termed as a part to tender and, therefore, cannot be

entertained and accepted under Rules. When the subsequent concessional offer/revised rates by the petitioner militates against the terms and

conditions of inviting tender, it cannot be said that such an offer is within its scope. There was no illegality and arbitrariness on the part of the

respondents in accepting the lowest bid of M/S B.E.L., concluding contract with them and making allotment of supply order. But offer of M/S

B.E.L., was part of the tender itself while the petitioner made concessional rate separately and much later.

In the facts and circumstances of the case, no justifiable cause has accrued to the petitioner to maintain the writ petition. The petition is,

accordingly, dismissed at the preliminary stage of admission.