Reitz India Limited vs The Appellate Authority and Additional Chief Secretary to Government of Karnataka, Energy Department and Others

A.S. Bopanna, J—The petitioner is before this Court assailing the order dated 17.4.2015 impugned at Annexure -A to the petition only in so far as part of the order whereby the Appellate Authority has rejected the request of the petitioner for opening the financial bid. The petitioner is also seeking for issue of mandamus directing the respondents 2 and 3 to consider the financial bid of the petitioner submitted in response to the request for proposal dated 19.6.2014.

The petitioner had approached the respondents with regard to development of the 35 MW Solar Thermal and Solar PV Power Plants in the State of Karnataka. The petitioner at the first point had approached this Court, since the petitioner was not in a position to upload its bids under e-procurement process due to certain technical defects. This Court by the interim order in W.P. No. 40587/2014 had permitted the petitioner to file the response of the petitioner in physical form. Subsequently, the said petition has been disposed of as the relief therein did not remain for consideration.

In that background, when the request of the petitioner for considering the tender had been rejected, the petitioner was before the Appellate Authority under Section 16 of the KTPP Act in Appeal No. EN 248 NCE 2014. The appeal was disposed of by the order dated 17.4.2015. The Appellate Authority after taking note of the rival contentions, has arrived at a conclusion that the consideration of the financial bid of the petitioner would arise only if the competent authority decides the validity of the bid submission. In that view, the petitioner claiming to be aggrieved to the said extent is before this Court in this petition.

Respondent Nos. 2 and 3 have filed statement of objections pointing out therein that the petition does not arise for consideration at this juncture. Firstly, it is indicated therein that the consideration of the technical bid of the petitioner at this stage would not arise. Secondly, it is also pointed out that the petitioner has received back the deposit amount and the bank guarantee which had been furnished at the first point along with the tender documents and in that view the consideration of the case of the petitioner in any event does not arise as they have withdrawn from the process. The correspondence relating to the return of the security deposit and bank guarantee is relied upon at Annexures R3 to R5. In that view, the respondents contend that the case of the petition is not liable to be considered.

The petitioner has filed its rejoinder statement in order to explain the aspect of the matter relating to the receipt of the bank guarantee and the manner in which it had been received. It is contended therein that the return of the bank guarantee was taken since it was sent to them and it was at the stage when the appeal was pending. Hence, they contend that even at this stage they are prepared to furnish the bank guarantee and the case of the petitioner be considered in that regard.

In the light of the above, at the outset what is necessary to be taken into consideration is with regard to the order passed by the Appellate Authority. To the extent the Appellate Authority has arrived at the conclusion that the financial bid of the petitioner would not arise for consideration at this stage before the validity of the bid submission is considered by the tender accepting authority, in my opinion, the Appellate Authority was justified.

If that be the position, the nature of the consideration that is required to be made by the tender accepting authority is also to be taken into consideration in the background of the reasons that have been assigned by the Appellate Authority. In that regard the Appellate Authority has arrived at the conclusion that the consideration of the additional documents that had been submitted by the petitioner cannot be made. If that be the position, the validity of the bid submitted by the petitioner on the technical aspect would arise for consideration only based on the documents that had been submitted by the petitioner along with the tender documents that was submitted pursuant to the interim order granted by this Court though it is in the physical form and not uploaded pursuant to the e-procurement notice. It is only after the tender accepting authority analyses the document without taking into consideration the additional documents that had been produced, a decision be taken by the tender accepting authority as to whether the technical bid submitted by the petitioner is responsive and further proceedings is to be taken in that regard to open the financial bid of the petitioner.

If that be the position, when such benefit has been granted by the Appellate Authority through the order which was passed on 17.4.2015, the question for consideration is also as to whether that benefit should be denied to the petitioner only on the ground that the bank guarantee and the security deposit which had been furnished by the petitioner has been returned to him. In that regard, a perusal of the communication referred to by the respondents 2 and 3 along with the objection statement would indicate that the bank guarantee was returned by the second respondent through their communication dated 11/23.11.2014. The petitioner has responded to the same and authorized the bearer of their letter to collect the same. Subsequently, the bank has also addressed a letter to the respondent No. 2 with regard to the bank guarantee not being renewed thereafter and the same not being available subsequently. Even if that be the position, the letter dated 16.3.2015 addressed by the petitioner would clarify the position that they are receiving the bank guarantee since the appeal though heard by the Appellate Authority has not been disposed of by passing a final order.

If that be the position and the dates as indicated in the rejoinder is taken into consideration, it would clearly establish that the petitioner had not voluntarily sought for return of the bank guarantee but when it was returned in a circumstance where at the first instance the technical bid had been rejected and the appeal was still pending consideration, they had no other option. Hence, the consideration of the case of the petitioner is required to be made after permitting the petitioner to re-submit the bank guarantee and the deposits that were required to be made by the petitioner.

Therefore, to the said extent, the benefit of the consideration of the technical bid submitted by the petitioner, as directed by the Appellate Authority and as presently indicated in this order would be made by respondent No. 3 subject to the petitioner furnishing the bank guarantee and the deposit in the same manner as had been originally furnished, within one week from the date of receipt of a copy of this order. If such bank guarantee and the deposit is furnished by the petitioner in the manner indicated herein, the third respondent shall thereafter reassess the technical bid of the petitioner in the manner as indicated above and also indicated by the order of the Appellate Authority and their financial bid shall be opened thereafter if they qualify.

In terms of the above, the petition stands disposed of.