M.R.S. Roadways vs Food Corporation of India, General Manager, Food Corporation of India and Rojimon, J and P Associates

Antony Dominic, J.—The respondents invited tenders for transportation of food grains by Ext.P2 tender notice. In response to the tender notice, petitioner and the 3rd respondent submitted their tenders. Technical bids were opened on 15/3/2010. Both the bidders were qualified and the price bids are pending consideration. It is at that stage this writ petition has been filed impugning the technical qualification of the 3rd respondent.

The ground urged by the petitioner is that in terms of the provisions of the tender conditions, solvency certificate is to be produced by the bidders and that such solvency certificate shall be issued from bank not earlier than three months from the date of application. It is also his case that in terms of Clause 5(c) of the tender conditions, the defective tender is liable to be rejected.

Petitioner''s case is that the date of application was 26/2/2010 and that the solvency certificate produced by the 3rd respondent is dated 2/2/2009. If is therefore contended that solvency certificate produced by the 3rd respondent does not satisfy the tender conditions, and that, for that reason, his tender ought to have been rejected in view of Clause 5(c) of the tender conditions.

Despite service of notice, 3rd respondent has not entered appearance to contest the case. In the counter affidavit filed by respondents 1 and 2, on facts, they concede that the solvency certificate submitted by the 3rd respondent did not satisfy the tender condition. But however, it is stated that the 3rd respondent was asked to produce a fresh solvency certificate issued not earlier than three months from the date of application and that, on 16.3.2010, he produced the solvency certificate duly revalidated. According to the respondents, in terms of the tender conditions, they are free to seek clarification from the tenderers and that it was in exercise of that right they required the 3rd respondent to produce the fresh solvency certificate. It is contended that with the production of the solvency certificate, the defect, if any, in the bid submitted by the 3rd respondent is cured and that therefore, there is nothing illegal in the decision of the respondents to qualify the 3rd respondent in the technical bid.

Having heard the submissions made, I am inclined to think that the technical qualification of the bid submitted by the 3rd respondent cannot be upheld. As already seen, tender conditions required that the solvency certificate should be issued not earlier than three months from the date of application of the bidders. The date of application was 26/2/2010 and the solvency certificate produced by the 3rd respondent was dated 2/2/2009. This did not satisfy the tender conditions. There is no provision in the tender enabling the FCI to relax the tender conditions or permit any bidders to supplement the essential documents prescribed in the tender notices. The defects could not have been corrected in the guise of seeking clarification also. In that view of the matter, when the technical bids we opened on 15/3/2010, the bid submitted by the 3rd respondent was defective. If so, the bid of the 3rd respondent ought to have been rejected at that stage itself and he could not have been technically qualified. Therefore, the decision of the FCI in technically qualifying the 3rd respondent is illegal. FCI is therefore directed to take further proceedings on the bids received by them, in the light of the findings made herein above and excluding the bid submitted by the 3rd respondent.

Writ petition is disposed of as above.