Khera Tourists Service vs Sports Authority Of India

G.S. Sistani, J

This is a writ petition under Article 226 of the Constitution of India seeking a writ of certiorari for quashing of the allegedly illegal procedure

adopted by the respondent while rejecting the technical bid of the petitioner, without specifying any reason, which the petitioner contends is arbitrary

and against the principles of natural justice.

With the consent of the parties, the writ petition is set-down for final hearing and disposal at the admission stage itself.

The respondent advertised an e-tender inviting bids for hiring of DLY cars for the Sports Authority of India, Head Office Building, Jawaharlal

Nehru Stadium, New Delhi. The petitioner submitted its online bid on 09.12.2019.

Admittedly, all the documents sought to be relied upon by the petitioner could not be uploaded. More particularly, the petitioner uploaded only 6

Registration Certificates ('RCs') instead of 25 RCs which were required as per the tender document.

After some hearing in the matter and perusal of the record produced by the respondent, Mrs. Latika Chaudhary, learned counsel for the petitioner is

satisfied that since the bid submitted by the petitioner was incomplete, there is no infirmity in the decision of the respondent in rejecting the petitioner's

bid.

She however submits that another bidder who had also submitted an incomplete solvency certificate, since the certificate did not bear any date, was

given an opportunity by the respondent to rectify the error. She further submits that since such an opportunity was not granted to the petitioner, the

respondent has acted in an arbitrary and fanciful manner ; and has been biased towards the petitioner.

Learned counsel for the respondent submits that the respondent was well within its rights to seek clarification on the bids. Reliance is placed upon

clause 7.3.5 of the Manual for Procurement of Bids 2017 issued by the Ministry of Finance, Department of Expenditure. We reproduce clause 7.3.5

below:-

7.3.5 Clarification of Bids/Shortfall Documents

During evaluation and comparison of bids, the purchaser may, at his discretion, ask the bidder for clarifications on the bid. The request for

clarification shall be given in writing by registered/speed post, asking the tenderer to respond by a specified date, and also mentioning

therein that, if the tenderer does not comply or respond by the date, his tender will be liable to be rejected. Depending on the outcome, such

tenders are to be ignored or considered further. No change in prices or substance of the bid shall be sought, offered or permitted. No post-

bid clarification at the initiative of the bidder shall be entertained. The shortfall information/documents should be sought only in case of

historical documents which pre-existed at the time of the tender opening and which have not undergone change since then. These should be

called only on basis of the recommendations of the TC. (Example: if the Permanent Account Number, registration with sales tax/VAT has

been asked to be submitted and the tenderer has not provided them, these documents may be asked for with a target date as above). So far

as the submission of documents is concerned with regard to qualification criteria, after submission of the tender, only related shortfall

documents should be asked for and considered. For example, if the bidder has submitted a supply order without its completion/performance

certificate, the certificate can be asked for and considered. However, no new supply order should be asked for so as to qualify the bidder.

He further submits that in the petitioner's case, several relevant documents were not uploaded, while in the other bidder's case referred to, the only

issue was that while the solvency certificate issued by a nationalized bank had been uploaded, however the same was without a date; and an

opportunity was accordingly granted to rectify this error. Counsel for the respondent submits that the two issues cannot be equated, as providing a

copy of the RC is an essential tender condition; and the petitioner admittedly failed to provide copies of the required number of RCs, while the

example which has been given by the petitioner is of a case where only the date was missing on a document issued by a third party, which was

subsequently permitted to be rectified.

We have heard counsel for the parties and have considered their submissions.

In the foregoing backdrop, we find that there is no infirmity in the decision-making process of the respondent, as admittedly vital documents were

not uploaded by the petitioner; and thus the petitioner's bid was correctly rejected. We are also satisfied with the explanation rendered by counsel for

the respondent in allowing the other bidder to provide the date on the solvency certificate which was issued by a nationalized bank and which was

uploaded alongwith other documents.

Accordingly, we find no grounds to interfere by way of this petition. The writ petition and pending application is accordingly dismissed.