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Judgment
The petitioners are aggrieved by the action of the 3rd respondent in granting time for participation in tender and for furnishing mutual non-disclosure agreement on stamp paper, after opening the bid. The petitioners therefore pray that Ext.P1 tender notice and all further proceedings pursuant thereto, be quashed.
The petitioners state that the 3rd respondent-Assistant General Manager (Marketing), BSNL invited sealed Expression of Interest for the operation and maintenance of BSNL CSCs in Kollam. The bids were to be submitted before 1.30 pm, 23.07.2020 and opening of bids was scheduled at 14.00 Hrs, 23.07.2020.
The petitioners submitted their bids and the 3rd respondent opened the bids on 23.07.2020. According to the petitioners, none of the participants had submitted mutual non-disclosure agreements on stamp paper. As bids were opened, in the absence of non-disclosure agreements of the participants, the 3rd respondent ought to have re-tendered the work. However, the 3rd respondent issued letters to all the participants granting time to produce non-disclosure agreements on stamp papers and certain other documents, as per Ext.P2.
Learned counsel for the petitioner would submit that in Ext.P1, the participants were directed to produce certain documents along with the Expression of Interest. After opening the sealed tenders and after the secrecy of the tender has become public, the 3rd respondent ought not have provided opportunity to the participants to produce the documents insisted in the tender notice. The action was a calculated attempt to support the 4th respondent.
Learned counsel for the petitioner argued that once sealed tenders are opened, the secrecy of the tenders is lost and hence there is no question of providing opportunity to participants to produce documents which ought to have been produced along with Expression of Interest. Opportunity to produce the documents was given at the instance of the 5th respondent. The said action of the 3rd respondent is to help respondents 4 and 5 out of the way and hence cannot be sustained.
Respondents 1 to 3 filed a statement and contested the writ petition. Respondents 1 to 3 pointed out that participants or their authorised representatives were free to attend the tender opening session. None of the petitioners attended the bid opening session. Such opportunity was given to raise objections, if any. The Tender Opening Committee opened the tender through e-tender portal and the report of the Tender Opening Committee was submitted to the Tender Evaluation Committee.
The Tender Evaluation Committee, while evaluating the technical bids, observed that some documents including the mutual non-disclosure agreement were not submitted by all the bidders. In fact, none of the bidders had submitted all documents. Since it is for the Evaluation Committee to decide on the documents, a decision was taken to permit all participants to submit requisite documents within seven days.
The learned Standing Counsel for respondents 1 to 3 pointed out that the mutual non-disclosure agreement has nothing to do with the competitiveness of bids. All the participants were given opportunity to produce documents including non-disclosure agreement. In all tenders, evaluation is concluded primarily on the basis of most advantageous "by price". The Evaluation Committee is at liberty to call for documents if the Committee considers it necessary.
The petitioners are already franchisees of BSNL and their offers need to be evaluated further, before a decision is taken on awarding the tender. It is not correct to say that the decision of respondents 1 to 3 is intended to help the 4th respondent alone. In the absence of submission of requisite documents, even the bids made by the petitioners were defective. None including the petitioners objected to grant of opportunity to the participants to produce relevant documents, when the bid was opened on 23.07.2020. Delay in finalising the Expression of Interest will adversely affect the services of the BSNL, contended the learned Standing Counsel.
I have heard the learned counsel for the petitioners and the learned Standing Counsel appearing for respondents 1 to 3.
The learned counsel for the petitioners relied on the judgment of this Court in Thomas P.C. and Co. v. Executive Engineer, Central Public Works Department [2013 KHC 47] to contend that in the absence of provision in the tender notification, a disqualified tenderer cannot rectify the mistake at a later stage after opening the tender. A reading of the said judgment shows that the disqualified tenderer in that case, failed to remit requisite tender processing fee, along with the tender. The said deficiency was sought to be regularised by paying the requisite amount subsequently. Under the circumstances this court held that such a mistake cannot be permitted to be rectified at a later stage. The facts involved in the said decision and the facts of this case are entirely different. The judgment in Thomas P.C. and Co. (supra) therefore cannot be of any help to the petitioners.
The learned counsel for the petitioners also relied on the judgment of the Apex Court in Mr. B.S.N. Joshi and Sons Ltd. v. Nair Coal Services Ltd. and Others [(2006) 11 SCC 548] to contend that if there are essential conditions, the same must be adhered to and if there is no power of general relaxation, ordinarily the same shall not be exercised by the tendering authority. A reading of the said judgment of the Apex Court would reveal that it was a case where one of the bidders did not satisfy the essential qualifications laid down for technical bid and was hence ineligible for award of the contract. The Hon'ble Apex Court, in such circumstances, held that such essential conditions cannot be made good at a later date. The said judgment therefore is also distinguishable on facts.
The prime grievance of the petitioners is as regards Ext.P2 letter issued to the participants in the bid, requiring them to make available mutual nondisclosure agreement and audited results of financial year 2016-'17. The argument of the petitioner is that such opportunity was given after opening of the bids. Once the bids are opened and the secrecy of the bids are lost, the 3rd respondent cannot permit the participants to make good the defect. The 3rd respondent under such circumstances had no option than to re-tender the work.
It has to be noted that none of the participants submitted mutual non-disclosure agreement on stamp papers along with their Expression of Interest. Some of the participants did not attach audited results of the financial year 2016-'17. When these shortcomings were noted at the time of opening of the bids, the Tender Evaluation Committee decided to give opportunity to all the participants to provide necessary documents. The petitioners did not object to the decision at that point of time. In fact, neither the petitioners nor their representatives were present at the time of opening of the bids, though they could have themselves or through their representatives raised objections.
This Court is of the definite opinion that the action of respondents 1 to 3 in giving opportunity to the participants in the bid to produce necessary documents, has not vitiated the tender process. Opportunity was given to produce non-disclosure agreement on stamp papers and financial statements. When an essential condition of tender is not complied with, it is open to the Tender Inviting Authority to reject the same. Whether a condition is essential or collateral, it could be ascertained by reference to the consequence of non-compliance thereto. The documents sought for by the respondents in this case, though are important for deciding eligibility for final award of tender, they have no direct impact over the competitiveness of the bids.
The Hon'ble Apex Court has held in the judgment in Air India Ltd. v. Cochin International Airport Ltd. and others [(2000) 2 SCC 617] that even when some defect is found in the decision making process, the Court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should intervene.
Opportunities to produce documents were given to all the participants. The petitioners could have also submitted documents. The petitioners, instead of doing so, have approached this Court seeking re-tender. Since this Court is of the definite opinion that the action of respondents 1 to 3 in giving opportunity to all the participants in the tender to produce requisite documents, is neither illegal or arbitrary, respondents 1 to 3 cannot be forced to re-tender the work again.
In the circumstances, this Court finds that the writ petition filed by the petitioners is without any merit and is liable to be dismissed. It is ordered accordingly.