Pioneer Fil-Med Pvt. Ltd vs Gujarat Metro Rail Corporation Limited

A.J.Desai, J

By way of present petition under Articles 14, 19(1)(g) and 226 of the Constitution of India, the petitioner has prayed as under:

“22A. Allow this application;

B. That this Hon’ble Court may call for the records and proceedings pertaining to the declaration of Petitioner’s Bid as “non-responsive” by the Respondent in exercise of his right conferred vide Clause 28 of the Tender bearing No.GMRC/S&T/PSD-03;

C. To issue an appropriate direction, order or writ, including a writ in the nature of certiorari in favour of the petitioner and quash the letters by the Respondent dated 06.04.2023 and 10.04.2023 addressed to the Consortium;

D. To issue an appropriate direction, order or writ, including a writ in the nature of mandamus, directing the Respondent to consider the bid filed by the Consortium in accordance with law;

E. Pending admission, hearing and final disposal of this matter, to direct the Respondent to abstain from award of Tender bearing no.GMRC/S&T/PSD-03 till the hearing and final disposal of the present petition and;

F. Pass any other orders as this Hon’ble Court deems fit based on the facts and circumstances of the instant case and in the interest of justice.”

The respondent Gujarat Metro Rail Corporation Limited formed by the Government of India and the Government of Gujarat has filed caveat through Mr. Anuj Trivedi, learned advocate. He appeared on 2.5.2023 and filed an affidavit-in-reply which was taken on record. At the request of Mr. Shalin Mehta, learned Senior Advocate for the petitioner, time was granted. Accordingly, the matter is listed today for hearing.

The case put forward by the petitioner is as under:

3.1 The petitioner is a private limited company registered under the Companies Act, 1956. The respondent is a Special Purpose Vehicle (SPV) formed by the Government of India and the Government of Gujarat for installation of metro rail in the State of Gujarat.

3.2 The respondent floated a tender bearing No.GMRC/S&T/PSD-03 on 23.5.2022. The petitioner had submitted the tenders in three envelopes viz. (a) Initial Filter cum Qualification Requirement (IFCQR) Bid; (b) Technical Bid; and (c) Financial bid.

3.3 The tender document had been revised from time to time and last date to submit the tender was extended upto 31.1.2023.

3.4 The petitioner received a communication dated 14.2.2023 from the respondent asking the petitioner to submit documents on or before 17.2.2023.

3.5 The petitioner, by a communication dated 17.2.2023, addressed a letter to respondent along with the documents which have been called for by the respondent on 22.2.2023. By a communication dated 10.4.2023, the petitioner was informed by the respondent corporation that the technical bid submitted by the petitioner cannot be considered in view of clause 28 of the terms and conditions of the tender notice since the petitioner had not submitted clarificatory documents within the time set by the respondent corporation. Hence this petition.

Mr. Shalin Mehta, learned Senior Advocate with Mr. H.B. Champavat, learned advocate for the petitioner would submit that it is true that the petitioner had submitted the documents subsequent to the date fixed by the respondent and the same were received only on 22.2.2023. However, another bidder namely, M/s. KTK Group Company Limited though granted 3 days’ time, like the petitioner was supposed to submit necessary document in response to the letter issued by the respondent corporation, complied by the same on 18.2.2023. He would submit that therefore, the respondent ought not to have accepted the document which was submitted by M/s. KTK Group Company Limited subsequent to date fixed by the respondent itself.

Mr. Mehta, learned Senior Advocate argued several points. However, we have considered the case only on this aspect after examining the affidavit filed by the respondent. He would, therefore, submit that the case of the petitioner may be considered for opening the financial bid.

On the other hand, Mr. Anuj Trivedi, learned advocate appearing for the respondent would submit that it is not in dispute that the documents were submitted by the petitioner subsequent to the date fixed by the respondent and was received only on 22.2.2023. He would further submit that all the bidders in all of its tenders have been given a period of three working days to submit their response. The clarifications were to be submitted by 17.2.2023, as the meeting of the appraisal committee for evaluating the bids was scheduled on 20.2.2023. M/s. KTK Group Company Limited submitted its response on 18.2.2023 and it was received before the meeting of the appraisal committee scheduled on 20.2.2023, the case of M/s. KTK Group Company Limited was considered. The documents submitted by the petitioner were received on 22.2.2023 after the date of the scheduled meeting and hence not considered.

By taking us through clause 28 of the tender notice, he would submit that the authority has power to reject the bid if the clarifications sought for are not provided in time. He would submit that the petition be dismissed.

We have heard the learned advocates appearing for the respective parties and perused the documents on record.

It appears from the record that the respondent corporation had sent a letter dated 14.2.2023 calling upon the petitioner and another company, i.e. M/s. Consortium of CRRCTEC-TASPL as well as M/s. KTK Group Company Limited asking them to furnish necessary document duly signed and stamped positively on or before 17.2.2023 by email as well as original. Clause 28 of the tender reads as under:

“28. Clarification of Bids

28.1 To assist in the examination, evaluation, and comparison of the bids, and qualification of the Bidders, the Employer may, at its discretion, ask any Bidder for a clarification of its Bid, given a reasonable time for a response. Any clarification submitted by a Bidder that is not in response to a request by the Employer shall nto be considered. The Employer’s request for clarification and the response shall be in writing No change, including any volunetary increas or decrease, in the prices or substance of the Bid shall be sought, offered, or permitted, except to confirm the correction of arithmetic errors discovered by the Employer in the evaluation of the Bids, in accordance with ITB 35.

28.2 If a Bidder does not provide clarifications of its Bid by the date and time set in the Employer’s request for clarification, its Bid may be rejected.”

As per clause 28.1, the respondent corporation has called upon the papers of notice requesting for clarification and by communication dated 14.2.2023, all bidders were called upon to supply the information, whereas clause 28.2 empowers the company to reject the bid if bidder does not provide clarification by the time set by the respondent corporation.

It is no doubt that all the three bidders including M/s. KTK Group Company Limited were directed to supply necessary documents on or before 17.2.2023 by email. It is an undisputed fact that the said company has submitted the documents only on 18.2.2023 by email.

It is pertinent to note that in none of the communications, the respondent corporation has declared that the meeting of the Committee is to be convened on a particular date and, therefore, submission made by Mr. Trivedi, learned advocate that the case of M/s. KTK Group Company Limited was considered since the papers were available when the meeting was convened cannot be accepted. We are therefore of the opinion that all the bidders ought to have been treated equally and their case could have been considered. Hence, we dispose of this petition by following directions.

The respondent corporation is hereby directed to consider the documents which have been supplied by the petitioner on 22.2.2023. If the respondent corporation is satisfied with the documents which have been supplied by the petitioner, the case of the petitioner for opening technical bid and financial bid be considered. Thereafter, the respondent corporation is permitted to decide the tender and pass appropriate orders.