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Judgment
Debangsu Basak, J
The writ petition is taken up for final hearing.
Petitioner assails rejection of a bid made by the petitioner under a tender.
Learned advocate for the petitioner submits that, the petitioner participated in a tender for manufacture and supply of Elastic Rail Clip MK-V to RDSO and other items in terms of the tender notice dated May 27, 2019. The petitioner submitted its bid. He submits that, the railways are nor considering the bid of the petitioner on the ground that, there are alleged deviations from the tender conditions. He draws the attention of the Court to the various tender conditions. He submits that, the portal on which the petitioner is to upload the bid, contemplates, a statement of deviation. It requires the petitioners to make a declaration that, the petitioner did not quote any deviation in any uploaded document and that, the railways in their discretion can ignore any such deviation if quoted while issuing the contract. He draws the attention of the Court to the instruction to tenderers and general conditions of tender for supply contract. He submits that, Clause 7 of such general instructions, contemplates deviations. Therefore, according to him, submission of deviations is permissible. He also draws the attention of the Court to the payment terms. He submits that, Clause 25.4 states that, the payments would be made by the railways in terms of the norms as stipulated in Clause
No deviation in payment condition will be entertained by the railways. He submits that, the so-called deviation made by the petitioner with regard to payment, is not deviation within the meaning of Clause 25.4 so as to attract the penalty of disqualification. He submits that, the petitioner provided that, in the event of delay in payment, the supply made by the petitioner may be delayed and in which case, the railways must grant extension of delivery period without liquidated damages and without DC. Such terms should be clearly mentioned in the purchase order. Therefore, according to him, the petitioner not having submitted any deviation which is not permissible, the tender of the petitioner should be considered.
Railways are represented.
As noted above, railways floated a tender for manufacture and supply of Elastic Rail Clip MK-V to RDSO on May 27, 2019 in which, the petitioner participated. Relevant clauses of such tender are as follows:
"7.0 SUBMISSION OF OFFERS
7.1 Procedure for submission of electronic offers
7.1.1. The tenderers should visit IREPS website at the address www.ireps.gov.in and submit online offers after logging into the website using their login ID, Password and Digital Signature. Tenderers can submit online electronic offers after filling the details in the following pre-designed templates.
1.0 Submit Payment Details
1.0 Techno-Commercial Bid Details
(Bid Process page)
Eligibility Criteria (Elig.*)
Terms and Conditions (T&C*)
Commercial Deviation (Com. Dev.)
Technical Specifications (Tech. Spec.)
Performance Statement (Perf.)
Financial Officer (Fin. Offer)
Templates named above superscribed with (*) will require digital signature for submission.
.............................................
............................................."
Clause 25.0 are as follows:
"25.0 Payments:
25.1 Tenderer has to indicate the terms of payment as per conditions mentioned below:
25.1.1. 90% payment against proof of despatch i.e. clear R.R. when despatched by Rail or consignees's Receipted Challan when despatched by road duly countersigned by Divisional Engg. Track officer (Senior scale)/ Dy. CE or his nominated officer (senior scale) and by any Engg. Track officer under PCE/ CAO (C) of the consignee Railway along with Inspection certificate (original payment foil) and balance 10% payment against consignee Receipt Note duly countersigned by Divisional Engg. Officer (Senior scale) and any Engg. Track officer under PCE/CAO(C) of the consignee Railway. Payment will be made by FA & CAO (C) of the consignee Railway. Firm's 90% bill (s) shall be routed through the office of the PCE/CAO(C) of the consignee Railway and balance 10% bill(s) shall be submitted directly to the consignee along with the PVC bill/ Addl. Security deposit of 10% value of contract (if PVC is applicable in the contract) failing which 10% bill(s) shall not be allowed.
Consignees will send the final bills along with 4 copies of Receipt note (Suppliers, Accounts, Bill, ledger & Indenting Officers foil) together with a certificate on the reverse of the bill as follows:
"Verified, accepted and allocated for Rs........ (in words and figures) chargeable to ........ (allocation). It is certified that .......... Nos./Sets/Kg. (in words and figures) of materials have been received in good conditions on ....... (date) and posted in DMTR vide page no. ...... dt. ..... as per Inspection Certificate issued vide No........... Dt. ........ (Issuing authority)."
OR
25.1.1. 100% payment against Consignee Receipt Note duly countersigned by Divisional Engg. Officer (Senior scale)/Dy. CE or his nominated officer (senior scale) and any Engg. Track Officer under PCE/CAO(C) of the consignee Railway along with Inspection Certificate (original payment foil). 100% bill shall be submitted direct to the consignee. Payment will be made by FA & CAO of the consignee Railway. Firm's 100% bill(s) shall be routed through the office of the PCE/CAO(C) of the consignee Railway.
Consignee will send final bills along with 4 copies of Receipt note (Suppliers, Accounts, Bill, ledger & Indenting Officers foil) together with a certificate on the reverse of the bill as follows:
"Verified, accepted and allocated for Rs........ (in words and figures) chargeable to ........ (allocation). It is certified that .......... Nos./Sets/Kg. (in words and figures) of materials have been received in good conditions on ....... (date) and posted in DMTR vide page no. ...... dt. ..... as per Inspection Certificate issued vide No........... Dt. ........ (Issuing authority)."
However, 100% payment can only be made along with PVC bill/submission of Addl. Security Deposit of 10% value of contract if PVC bill could not be furnished due to non-availability of regular indices while submitting 10% or 100% bill.
25.2 Firms shall submit the invoice/bill clearly indicating the appropriate HSN and applicable GST rate thereon duly supported with documentary evidence.
25.2 Payment will be made through EFT only. Firm will have to furnish details as per Annexure IV for release of payment through EFT.
The firms whose bank Accounts are outside the EFT coverage of RBI/Kolkata (for S.E.Railway as consignee Railway) or RBI of concerned consignee Railway HQ, would be paid through RTGS/NEFT system. Therefore they have to furnish the details of their Bank Account having facility of core banking at the time of submission of Bill as per proforma enclosed as Annexure-IV.
25.2 Payment shall be made as per Railway norms in above paras. No deviation in payment condition will be entertained by the Railway under any circumstances and the offer of the tenderer quoting different payment conditions will be summarily rejected."
Deviations under the tender conditions are permissible. The permissible deviations are enumerated in Clause 7.1.1. The permissible deviations are on commercial and technical front. Payment deviations are not permissible. The tender condition stipulates in Clause 25.4, in the event, there is any deviation on the payment clause, then, the railways can reject the tender summarily.
In the present case, petitioner submitted its bid with deviations from the tender conditions. Four deviations were requested by the petitioner. One of them is with regard to payment. It is as follows:
"02. Delay in Payment: If there is any delay in releasing of payment beyond 05 days after receipt of our supply documents by the Engineering Department of concern Railway for onward submission to the Account Department for payment, supply may be delayed and Railways have to grant extension of delivery period without LD and without DC and this term should be clearly mentioned in the purchase order."
Essentially, the petitioner seeks to utilise the delay in payment made by the railways, if any, so as to obtain an extension of the delivery period without imposition of liquidated damages and without DC. This, in my view, is a material deviation of the payment clause coming within the purview of Clause 25.4 permitting the railways to reject the bid summarily.
It is the contention of the petitioner that, the railways accepted similar conditions earlier and even subsequent to the present tender.
If an illegality is committed, the same need not be reinforced by requiring compliance therewith by a Writ Court. The railways cannot be required to repeat its mistakes or act contrary to the tender conditions although, they are continuing to do so.
In such circumstances, I find no merit in the present writ petition.
W.P. 13448(W) of 2019 is dismissed without any order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.