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Judgment
A.S. Bopanna, J.—The petitioner in W.P. Nos. 22895/2013 and 22896/2013 is before this Court assailing the order dated 16.05.2013 passed in Appeal Nos. 2/2013 and 1/2013 respectively. Since the issue and the contentions urged are similar and since the parties to the proceedings are also the same except that the bid invited is for two different packages, the petitions are taken up for consideration together and disposed of by this common order. For the purpose of narration of facts, the case as pleaded in W.P. No. 22895/2013 is referred to as the lead case. The petitioner is stated to be a Private Company incorporated under the provisions of the Companies Act, 1956. When tenders were invited by the respondent Nos. 1 to 3 relating to the construction of Barrage-cum-pick up across Suvarnamuki River near Heroor Village, Sira Taluk, Tumkur District in a II-Tier System by the tender indent dated 24.08.2012, the petitioner as well as the respondent No. 4 herein among others have responded to the same. The Technical Bid submitted by the respondent No. 4 had been rejected by the Tender Scrutiny Committee. Against such action, the respondent No. 4 was before the Appellate Authority in Appeal No. 2/2013, which is relevant in the instant case. As noticed, a similar appeal in Appeal No. 1/2013 is filed, which relates to the companion petition. The Appellate Authority, by its order dated 16.05.2013 has allowed the appeal and set aside the order of the Tender Scrutiny Committee, which had rejected the Technical Bid of the petitioner. Consequent thereto, the respondents were directed to consider the Technical Bid of the appellant and proceed with the tender process. The petitioner claiming to be aggrieved by the said order is before this Court.
The learned counsel for the petitioner while assailing the order would contend that the Appellate Authority in fact has deviated from the tender conditions which had been indicated in the tender documents, which were required to be complied by the parties. In that regard, to point out the requirement, the learned counsel has referred to Clauses 3.2(c) and 3.3 of the tender conditions relating to which a grievance is putforth. In that regard, it is contended that the minimum work that was required to be performed with regard to the revetment is 2936.00 sqm. and insofar as the availability of the equipment, 50% of the same was to be owned and 50% to be hired. In the instant case, the respondent No. 4 did not possess a Crane with Tripod is the contention and had not carried out revetment work to that extent. In that view, it is contended that the Technical Evaluation Committee did not find that the respondent No. 4 had complied with the said requirement and therefore the Technical Bid had been rightly rejected.
With reference to the order passed by the Appellate Authority, it is contended that the Appellate Authority has subsequently accepted the additional documents which are submitted by the respondent No. 4 and thereafter the technical requirement has been qualified. It is contended that such deviation from the requirements in the tender documents to be made is not permissible and in any event, even if it is taken as a clarification, the respondent No. 4 had not sought such clarification from the Tender Inviting Authority or the Tender Scrutiny Committee and if any other clarification is accepted by the Appellate Authority it would amount to altering the conditions. It is therefore, contended that the Appellate Authority was not justified. To substantiate such contention reference is also made to other papers produced along with the writ petition.
The learned counsel for the respondents, more particularly, the contesting respondent No. 4 would contend that what has been noticed by the Appellate Authority in fact is not any new document that has been produced, but only a clarification with regard to what was already existing, but had been wrongly not taken into consideration by the Tender Evaluation Committee. It is pointed out that the very perusal of the order would indicate that the Appellate Authority has discussed this aspect of the matter and taken note of the fact that the assessment made by the Evaluation Committee had not been properly done. Even with regard to the equipment, appropriate consideration has been made by the Appellate Authority and the order has been passed. In that view, it is contended that the Appellate Authority was justified and the order does not call for interference.
At this stage, it is also necessary to notice that when these petitions were heard at an earlier point of time, certain discrepancy in the original case file was noticed by this Court and it was found that one of the assessment sheet maintained, which had been verified by the Tender Scrutiny Committee was different from the one which had been relied on by the respondent No. 4 along with their objection statement. The learned Government Advocate, was therefore directed to secure instructions in that regard and file an affidavit with regard to the nature of consideration that was made. The affidavit in fact has been filed and taken on record. Further, the contesting respondent No. 4 has also filed an additional affidavit explaining the circumstances and producing the documents thereto. The said documents as well as the contents in the affidavit have also been taken into consideration.
Before adverting to the fact situation in the instant case, it is also necessary to refer to the judgments relied on by the learned counsel for the petitioner. The decision in the case of B.S.N. Joshi and Sons Ltd. Vs. Nair Coal Services Ltd. and Others, is relied on. The gist of the decision is that the condition stipulated by the Tender Inviting Authority would have to be adhered to by the parties and there can be no deviation subsequently. The decision in the case of Siemens Public Communication Networks Pvt. Ltd. and Another Vs. Union of India (UOI) and Others, is relied on with specific reference to paragraph No. 29 onwards, wherein also an issue relating to the conditions stipulated by the Tender Inviting Authority and the same being a commercial transaction, the evaluation of the tenders would have to be scrupulously followed and there is no scope for equality and natural justice is the gist of the said contention. The decision in the case of West Bengal State Electricity Board Vs. Patel Engineering Co. Ltd. and Others, , wherein a reference is made to the pre-bid qualification and the gist of the decision rendered by the Hon''ble Supreme Court is that the Tender Inviting Authority as well as the parties responding to the tender would have to abide by the qualifications indicated therein and the pre-bid qualification would become relevant for the purpose of consideration. The decision in the case of Glodyne Technoserve Ltd. Vs. State of M.P. and Others, is relied on, which is also to the same effect that the pre-bid qualifications would have to be satisfied by the persons offering the bid and therefore the same would be relevant.
Having noticed the decisions rendered by the Hon''ble Supreme Court relied upon by the learned counsel for the petitioner, the position would be clear and that the Tender Inviting Authority would be the authority, who is Competent Authority to fix the pre-bid qualification depending on the nature of the work. The fact that the persons, who respond to the bid would have to satisfy the technical requirements is also clearly indicated therein. The fact that there can be no deviation from the tender documents is also an aspect which has been taken into consideration. Even if the legal position of law as enunciated is kept in view and the present facts are examined, what is necessary to be noticed here is that this Court, at this point is considering the correctness or otherwise of the order passed by the Appellate Authority, which is also a competent authority to look into the correctness or otherwise of the Technical Evaluation which has been made by the Tender Scrutiny Authority. Hence, if this aspect of the matter is borne in mind, what is necessary to be kept in view while examining the order passed by the Appellate Authority is that this Court would not advert to re-assess the technical requirement either assessed by the Tender Scrutiny Committee or the manner in which the Appellate Authority has considered the same, except to come to the conclusion as to whether the order passed by the Appellate Authority smacks of perversity and whether such order passed by the Appellate Authority is so unreasonable so as to call for interference.
Further, what is also to be noticed is as to whether Appellate Authority while taking into consideration the contentions putforth before it has totally altered the pre-qualification/requirement from the conditions which had been indicated in the tender documents and as to whether a new position has been laid by the Appellate Authority. If this aspect of the matter is kept in view, what was necessary to be noticed by the Appellate Authority is as to whether the party before it, viz., the respondent No. 4 herein had in fact complied with the requirement, which had been prescribed and in that regard whether the Tender-Scrutiny Committee had properly assessed the situation or not.
In that direction the first question which had arisen for consideration before the Appellate Authority was with regard to the pre-requirement qualification for having undertaken the revetment work. The case of the respondent No. 4, who was the appellant therein is that the said requirement had been satisfied and the document had also been produced to the said extent. The Appellate Authority, in fact, while taking note of the contention of the respondent has extracted the objection statement filed therein and in that view, having taken note of the document which was available before it was of the view that the extent of the work, which was required to be completed relating to revetment had been complied by the respondent No. 4. Therefore, the said contention was accepted. If the said finding of the Appellate Authority is kept in perspective and even if the decisions cited supra are kept in view, it is not as if the Appellate Authority has modified the pre-qualification condition, but it has appreciated the manner of the consideration made by the Tender Scrutiny Committee and thereafter has come to its own conclusion as to whether the same was justified or not.
Even to appreciate this aspect of the matter having already indicated above that certain doubts had occurred in the mind of this Court earlier when the records relating to Tender Scrutiny Committee proceedings were perused, the affidavit was called for. In that regard, along with the affidavit, the statutory respondents have referred to the statement of the technical bid evaluation, which if perused would indicate that the revetment work noted against the respondent No. 4 was indicated at lesser than the required quantum indicated in the tender document. In order to justify their conclusion they have referred to the Work Done Certificates, which was produced by the respondent No. 4 along with the tender documents. A perusal of the same would indicate that to take note of the extent of the revetment work at 1541.96 sqm., one of the work done certificate dated 09.09.2010 has been relied. However, another document relating to the similar work with reference to agreement dated 09.03.2007 was also available with the Tender Scrutiny Committee. From the document which is available with the affidavit, it is seen that, the endorsement that no work has been done for the year 2007-2008 is recorded and therefore ignored the document. A perusal of the said document would indicate that the revetment work is to the extent of 3460 cubic meters though it is not indicated in square meters and if indicated, it would have been much more.
Firstly, the requirement under the tender document would indicate the period as 2007-2008 onwards as stated therein. The reason for excluding the same appears on the ground that the work was completed prior to period prescribed. If, in the light of the document produced by the respondent No. 4 along with the additional affidavit is kept in view, this position is clarified to indicate that the work is performed during the period as required under the tender documents. If this aspect of the matter is kept in view and the order passed by the Appellate Authority is taken into consideration, it would indicate that the Appellate Authority on taking note of the quantum indicated in cubic meters has taken into consideration the actual extent in square meters and has come to the conclusion that in fact the respondent No. 4 had complied with the requirement, but the Tender Evaluation Committee had not properly assessed the same. In that view, the conclusion on that aspect reached by the Appellate Authority in any event cannot be considered to be perverse.
Further, with regard to the requirement relating to equipments, the Appellate Authority has also taken into consideration the document submitted by the petitioner to indicate that he possessed the Tripod Crane, which compared to the contract was worth only a sum of Rs. 85,000/-. No doubt, the said document is a subsequent document which has been produced by the respondent No. 4. Even if that aspect of the matter is kept in view and the requirement as contemplated in the tender documents at Clause 3.3 is taken into consideration, the requirement of 50% ownership of the equipment and even if the Crane with Tripod, a critical equipment is considered, it cannot be said that the non-possession of such crane alone would vitiate the entire consideration as made by the Appellate Authority since if the total number of equipments listed is taken into consideration the condition would have to be held as satisfied.
In any event, in first of the decision relied on by the learned counsel for the petitioner, the Hon''ble Supreme Court has also indicated with regard to the consideration that would be made with regard to the substantial compliance. Be that as it may, the Appellate Authority also being a competent authority to assess and while re-assessing the evaluation as made by the Tender Evaluation Committee, in any event, has considered all these aspects of the matter and has come to the conclusion that the respondent No. 4 had also satisfied the technical requirements. Therefore, in the present facts, it cannot be said that the Appellate Authority, in fact, has altered the tender condition so as to benefit the respondent No. 4 herein. In fact, the Appellate Authority while re-assessing has taken note of the error committed by the Tender Evaluation Committee and in that regard has rectified the mistakes and come to the conclusion that the rejection of the Technical Bid submitted by the respondent No. 4 was not justified. In view of the nature of conclusion that has been reached by the Appellate Authority based on the discussion made therein, in any event, the said order cannot be said to be perverse so as to call for interference. In that view of the matter, I see no merit in these petitions and they are accordingly dismissed.