Hon'ble Mahesh Chandra Tripathi,J.
Petitioners before this Court are engaged in the business of transportation of LPG Indane Cylinders. Indian Oil Corporation Ltd. invited tenders for the work of transportation of LPG Indane Cylinders in vertical position on unit rate basis Ex Haldwani Bottling Plant. Petitioners in their turn proceeded to offer their bid by the method of e-tendering according to which the bids were to be submitted/offered online through the IOCL-E-Tendering Website Https:11iocletenders.gov.in. Petitioners claim that they submitted/uploaded their bids and their further submission is that the bid has been submitted as per the terms of the tendered document contained at page 4 under the heading of CREDENTIAL BID (A), wherein the bidders are required to submit nineteen documents and at serial No. 13 of the same there is a mention of copy of latest Income Tax Return. The description of document mentioned at serial no. 13 for ready reference is being reproduce below;
"13. Copy of latest Income Tax clearance certificate, in absence of which an acknowledged copy of latest Income Tax Return filed/copy of PAN card of proprietor in case of proprietorship firm/copy of PAN card in the name of the firm in case of any other firm/limited company (a copy of the partnership deed should accompany the tender if the tenderer is a partnership firm)".
At this juncture we also proceed to take note of the fact mentioned at page 6 of the tender document under the heading of PRE QUALIFICATION CRITERIA FOR QUALIFYING TENDERER at clause 6 wherein it is mentioned that tenderers have to submit proof of submission of Income Tax Return of the past three financial years. The clause 6 for ready reference is reproduced below;
"6. Tenderers have to submit proof of submission of Income Tax Return of the past 3 Financial Years. Acknowledged copy of IT Return to be enclosed. The IT return should be either in the name of Firm or Proprietor of the Firm participating in the tender."
At page 16 of the tender document in clause 5.0 there is mention of evaluation criteria of tender. Clause 5.1 provides that the tender is being floated in two bid systems i.e. credential bid and price bid. It further provides that credential bid will be first opened and will be evaluated and the bidders who will qualify in credential bid shall be eligible for the price bids. The clause 5.0 and 5.1 being relevant are reproduced below;
"5.0 EVALUATION OF CRITERIA OF TENDER:
5.1. This tender is floated in two-bid systems i.e. credential bid and price bid. Credential bid will be first opened on scheduled date and will be evaluated. Price bids of the tenderers, who have qualified in credential bid based on our evaluation, will be opened on subsequently notified date."
According to the tender document contained in annexure the date of opening of credential bid was 2.1.2015 at 15.30 hrs. and as per the Note, contained at page 2 of the tender document, the tenderers were advised to bring original of all the documents for credential bid verification as per credentials bid check list. The said Note for ready reference is extracted below;
"NOTE:
1. Credential Bid Verification: Same will start at 11.00 hrs on 15.12.2014. Allthe bids were to be submitted/offered online through the IOCL-E-Tendering Website Https:11 iocletenders.gov.in. tenderers are advised to bring Originals of all the documents (wherever copies are enclosed) attached in the tender as per Credential Bid Check List for physical verification at the address mentioned below;
Chief Manager (LPG-O), UPSO-II INDIAN OIL CORPORATION LIMITED (Marketing Division) UP State Office-II Address: E-8, Sector 1, Noida-201 301"
Petitioners have proceeded to mention that they came to know that the respondents were inclined to insist upon submission of Income Tax Return of past three financial years as required in clause 6 for being qualified for price bid and, accordingly, were advised to submit the same. The petitioners, therefore, submitted the true copy of Income Tax Return of past three years alognwith a letter dated 1.4.2015 to the respondents with a request to take the same on record and therein they submitted that the petitioners were prevented from submitting the past three years return due to the different wordings used in the tender document in this regard as referred to above.
Petitioners submit that tender of petitioners have been rejected for want of Income Tax Return of past three financial years and petitioners in this background are before this Court by submitting that petitioners have been grossly discriminated by the respondents, inasmuch as, the respondents have accepted the tender of other bidder Bharadwaj Transport (respondent no. 3) which have submitted only the PAN Card and not even the copy of latest Income Tax Return. Similarly the respondents have also accepted the tender of another bidder namely Sidhbali Corporation (respondent no. 4) which submitted the latest Income Tax Return of assessment year 2014-15 only. Petitioners have further proceeded to mention that the respondents themselves are responsible for such a situation as the bids were to be submitted/offered online through the IOCL-E-Tendering Website Https:11 iocletenders.gov.in. and admittedly there has been mistake in the tender documents, inasmuch as, in the subsequent tender they have mentioned the list of documents to be submitted for qualifying in the credential bid, the requirement of submitting the copy of Income Tax Return of past three years whereas in the tender document under consideration, it was mentioned at item no. 13 that copy of latest Income Tax Return be filed.
Petitioners have submitted that their request vide letter dated 1.4.2015 which was submitted much before the finalization of tender was not given any heed and the contract in question has been settled in favour of M/s. Bharadwaj Transport (respondent no. 3) and Sidhbali Corporation (respondent no. 4) and in this background petitioners are before this Court.
The claim made by the petitioners has been resisted by filing counter affidavit and mentioning therein that petitioners have not at all fulfilled the pre-qualification criteria for qualifying the tender and aforesaid pre-qualification criteria was based on guidelines framed by the Corporation making rules of tenders for the concerned year i.e. 2014, therefore, so far as the point no. 6 of the pre-qualification criteria is concerned it was applicable/attracted only in respect of old transporters who have their working experience/registration of more than three years and they were required to submit their Income Tax Returns of past three years and in absence whereof they were required to submit the acknowledgement as proof of submission of Income Tax Returns. Mention has been made that by means of positive interpretation of aforesaid clause, it is very clear that those transporters who have registration within past one or two years cannot submit the Income Tax Returns for the last three consecutive years therefore, they were permitted to file their Income Tax Returns after the registration of their firms. It may be 2 years, 1 year or 'nil' year, as may be applicable upon them. Allegations of discrimination has been rebutted and further mention has been made that as far as point no. 3 of check list is concerned, it was merely a reminder to check documents annexed alongwith the application form and same cannot be a substitute of pre-qualification criteria framed by the Corporation. Mention has also been made that a categorical stand has been taken that prior to submission of application form "go through the Rule of Tender perfectly then only submit the form" and, in this backdrop, it has been contended that rightful decision has been taken in the present matter.
Counter affidavit has been filed on behalf of respondent no. 4 wherein the action, so taken, has been sought to be justified.
Rejoinder affidavit has been filed to the counter affidavit filed on behalf of respondent nos. 1 and 2 and as supplementary affidavit has also been filed after pleadings, mentioned above, have been exchanged, writ petition no. 22920 of 2015 has been taken as leading writ petition with the consent of parties and it has been agreed upon that the judgement delivered therein bind the other two petitions numbered as writ petition no. 22921 of 2015 and writ petition no. 22922 of 2015.
Sri Ravi Kiran Jain, Senior Advocate, appearing for the petitioners submitted with vehemence that in the present case the Indian Oil Corporation Limited has not at all acted fairly and merely because Income Tax Return of past three years have not at all filed alongwith the bid, the credential bid of the petitioners ought not to have been rejected rather opportunity ought to have been provided to the petitioners to do away the said defect as submission of Income Tax Return of past three years was not at all an essential term of the contract and, in view of this, disqualification of petitioners' company on said ground is wholly unjustifiable and especially when the said submission of Income Tax Return has got no nexus with the financial capacity of transporter concerned.
Smt. Archana Singh, learned counsel appearing for the Indian Oil Corporation Ltd., contended that the terms and conditions of the tender document are clear and categorical and petitioners were obligated to read the terms and conditions of tender carefully and as here accepted position is that petitioners have not at all complied with the terms and conditions of the tender in question, in view of this, rightful decision has been taken in the matter and no interference is required by this Court and especially when contract period is already over and only extended period is on.
Sri Satyendra Nath Tiwari, Advocate, has toed the same lines as has been toed by the counsel of Indian Oil Corporation Ltd.
After respective arguments have been advanced the factual situation, that is so emerging, is that tender has been invited for the work of transportation of LPG Indane Cylinders in vertical position on unit rate basis Ex Haldwani Bottling Plant and in the said tender, the bids were directed to be offered by the method of e-tendering according to which the bids were to be submitted/offered online through the IOCL-E-Tendering Website Https:1 1 iocletenders.gov.in. Accepted position is that petitioners have submitted their bid on 26.12.2014 and it is also accepted position that as per terms and conditions of the tender document contained at page 4 of the tender document under the heading of CREDENTIAL BID (A). The parties were required to submit 19 documents and at serial no. 13 there is a mention of copy of latest Income Tax Return. Further under the heading of PRE-QUALIFICATION CRITERIA FOR QUALIFYING TENDERER, Clause 6 it was clearly mentioned that tenderers have to submit proof of submission of Income Tax Return of the past three financial years. This is also accepted position that tender was floated in two bid systems i.e. credential bid and price bid and it also contains a condition that credential bid will be first opened and will be evaluated and the bidders who will qualify in credential bid shall be eligible for the price bids. As per the tender document contained in annexure the date of opening of credential bid was 2.1.2015 at 15.30 hrs and as the entire process was undertaken by way of e-tendering and petitioners have not proceeded to submit the proof of submission of Income Tax Return of past three financial years the software in question that was so prepared did not entertain the application of petitioners and, accordingly, same being e-tendering process the price bid of petitioners was system barred from opening. The software in question has been designed in such a manner that there was least human interference in all these matters and the factual situation is that at the said point of time the software in question has not at all entertained the credential bid of petitioners and, accordingly, price bid of petitioners has not at all been opened.
It is true that at item no. 13 of credential bid in the check list it has been mentioned that copy of latest Income Tax clearance certificate, in absence of which an acknowledged copy of latest Income Tax Return filed/copy of PAN card of proprietor in case of proprietorship firm/copy of PAN card in the name of the firm in case of any other firm/limited company (a copy of the partnership deed should accompany the tender if the tenderer is a partnership firm) directed to be filed. It is also equally true that Pre-qualification Criteria for Qualifying Tenderers, clearly provided at page no. 6 of the tender document, that tenderers have to submit proof of submission of Income Tax Return of the past 3 Financial Years and acknowledged copy of Income Tax Return was to be enclosed and same was required to be either in the name of Firm or Proprietor of the Firm participating in the tender. It is accepted position that pre-qualification criteria in the shape of filing of Income Tax Return of past three years has not at all been fulfilled by the petitioners.
The issue before us is as to whether it was an essential condition of the contract in question or some leniency could have been shown and an opportunity could have been provided to the petitioners for rectifying the said mistake in question.
A Division Bench of this Court in the case of Ganapati Goods Carrier through its Proprietor Subhash Kumar Vs. Union of India through its Secretary & another (Writ-C No. 42457 of 2015), in identical set of circumstances, has proceeded to take the following view;
"1. Heard Vanashri Dubey, learned counsel for the petitioner and Archana Singh, Advocate alongwith Himkanya Srivastava, Advocate for the respondents.
2. It is admitted position that on 14.05.2015, which was last date of submission of tender form. The petitioner had submitted tender but past three financial years income tax returns were not submitted alongwith the form. The pre qualification criteria for qualifying tenderer are on record at page-22 of the writ petition. Condition No.6 reads as under:-
"6. Tenderers have to submit proof of submission of Income Tax Return of the past 3 Financial Years. Acknowledged copy of IT Return to be enclosed. The IT Return should be either in the name of Firm or Proprietor of the Firm participating in the tender."
3. It is also admitted from the record that past three financial years income tax returns were submitted by the petitioner in June, 2015. Therefore, by cut of date i.e. 14.05.2015 the same were not submitted. It was clearly prescribed that conditional or incomplete tenders were liable to be rejected. Clause 1.4 of the Condition reads as under:-
"1.4 All entries should be made in ink and any correction should be attested by signatures of tenderer over the firm's seal. Over-writing/whitening/erasing out will not be accepted. Incorrect words/figures should be crossed and correct figures rewritten. Conditional and/or incomplete tenders are liable to be rejected. Use of correcting fluid (white) is banned and tender will be summarily rejected for usage of the same."
4. Admittedly, three years income tax returns have not been submitted alongwith tender form, which was incomplete and was not in-compliance with the guidelines as prescribed by the respondents. Hence, the candidature of the petitioner has rightly been rejected.
5. We find no force in the writ petition. Accordingly, the same is dismissed."
At this juncture we proceed to take note of the judgment of the Apex Court in the case of Rashmi Metaliks Limited & another Vs. Kolkata Metropolitan Development Authority & others, 2013 (10) SCC 95, wherein there were two terms of the subject "Invitation to Tender" and the term relevant for the purposes of present case was clause "J" which reads as follows;
"(J) Valid PAN No., VAT No., copy of acknowledgement of latest income tax return and professional tax return."
In the said case company's tender has been rejected on the premises that its bid in question has been disqualified as company has not submitted its latest Income Tax Return alongwith its bid and reference of clause (j) of the notice inviting e-tender Apex Court has concluded that the said clause is not at all an essential element or ingredient or concomitant of the subject NIT. A further mention has been made that the Income Tax Return would have assumed the character of an essential term if one of the qualifications was either the gross income or the net income on which tax was attracted. Relevant extract of the aforementioned judgement i.e. paragraph nos. 17, 18 and 19 are extracted below for ready reference;
"17. So far as clause (j) of the detailed notice inviting E-tender No.01/KMDA/MAT/CE/2013-2014 dated 10.5.2013 emanating from the office of the Chief Engineer is concerned, it seems to us that contrary to the conclusion in the impugned judgment, the clause is not an essential element or ingredient or concomitant of the subject NIT. In the course of hearing, the Income Tax Return has been filed by the Appellant-company and scrutinized by us. For the Assessment Year 2011-2012, the gross income of the Appellant-company was Rs.15,34,05,627, although, for the succeeding Assessment Year 2012- 2013, the income tax was NIL, but substantial tax had been deposited.
18. We think that the Income Tax Return would have assumed the character of an essential term if one of the qualifications was either the gross income or the net income on which tax was attracted. In many cases this is a salutary stipulation, since it is indicative of the commercial standing and reliability of the tendering entity. This feature being absent, we think that the filing of the latest Income Tax Return was a collateral term, and accordingly the Tendering Authority ought to have brought this discrepancy to the notice of the Appellant-company and if even thereafter no rectification had been carried out, the position may have been appreciably different. It has been asserted on behalf of the Appellant-company, and not denied by the learned counsel for the Respondent-Authority, that the financial bid of the Appellant-company is substantially lower than that of the others, and, therefore, pecuniarily preferable.
19. In this analysis, we find that the Appeal is well founded and is allowed. The impugned judgment is accordingly set aside. The disqualification of the Appellant-company on the ground of it having failed to submit its latest Income Tax Return along with its bid is not sufficient reason for disregarding its offer/bid. The Respondents are directed, therefore, to proceed further in the matter on this predication. The parties shall bear their respective costs."
On the parameters that have been settled by the Apex Court the terms and conditions of the notice inviting e-tender has been examined by us in the present case and what we find that filing of the Income Tax Return for last three financial years, in the present case also, cannot be assumed of having character of an essential term as merely Income Tax Return of past three years have been called for and at no point of time there has been any mention that it has any co-relation with the gross income or the net income on which tax was attracted. Here, in the present case, there is an additional ground for not accepting the same as essential term or condition of the contract for the simple reason that only in reference of old contractors said condition was required to be fulfilled whereas in reference of new entrant or who has been carrying business for a year or two it was not at all required.
The reason for which the bids of respondent nos. 3 and 4 have been accepted has been disclosed before us that new firm formed in the financial year 2014-15 will not be able to submit any Income Tax Returns for any assessment year and similarly firm formed in the financial year 2013-14 will be able to submit Income Tax Return for assessment year 2014-15 but would not be able to submit Income Tax Return for the assessment year 2013-14 and before. Firm formed in the financial year 2012-13 will be able to submit Income Tax Return for the assessment year 2013-14 and assessment year 2014-15 but would not be able to submit Income Tax Return for assessment year 2012-13 and before. Firm formed in the financial year 2012 or before should be in a position to submit three Income Tax Returns i.e. for the assessment year 2012-13, assessment year 2013-14 and assessment year 2014-15.
All these facts clearly indicate and stipulate that filing of Income Tax Return for last three years was not at all one of the essential terms as otherwise it was not having any impact on the tender, in view of this, as this aspect of matter has not at all been considered by the Division Bench of this Court and neither same has been raised in Writ Petition No. 42457 of 2015, thus, we take the view that the filing of Income Tax Return for last three years was not at all an essential term of the contract and an opportunity could have been provided to the petitioners to rectify the same and specially in the backdrop that serial no. 13 of the list of documents that were required to accompany the tender document had the tendency of creating confusion vis.a.vis. Clause 6 of Pre-qualification Criteria for Qualifying Tenderers and respondent Indian Oil Corporation has also been conscious of the fact and, accordingly, in the following year rectification has been carried out in reference of requirement at serial no. 13.
It may be true that tendering process is by e-mode wherein no human interference is warranted but at the end of the day we learn from our mistakes/experience and here we cannot impute any motive to Indian Oil Corporation, as the software in question has been designed in such a fashion and as petitioners' firm was not at all fulfilling the condition no. 6 of Pre-qualification Criteria for Qualifying Tenderers, the software has proceeded to act accordingly. The ultimate object of tendering is that the incumbent who has submitted the lowest bid and fulfills all the pre-requisite qualifications should be given opportunity for having contract in his favour. This is one of the reasons that has found favour of the Apex Court in the case of Rashmi Metaliks Ltd. (supra) as therein financial bid of the appellant-company was substantially lower than that of the others, and, therefore, pecuniarily preferably. In the present case the factual situation is that the period of contract is one year and further liable to be extended for two years and one year period has already expired and it is true that contract in question has been extended by the Indian Oil Corporation Ltd. and, as such, what was the offer made by the petitioners' company also assumed significance, in view of this, we proceeded to put specific query to produce the offer that has been rendered by the petitioners and to the said specific query, that has been made by us, the Indian Oil Corporation Ltd. has returned back with the response that as credential bid of petitioners has been turned down, the software has not at all proceeded to open the price bid of petitioners but petitioners in their turn proceeded to produce before us copy of the financial bid, that has been offered by them and this much is accepted position that the financial bid that was required to be offered ought to have been within (+/-) 10% of the estimated transportation rates given in the tender. Tenderers quoting beyond (+/-) 10% of the estimated rates were to be disqualified and their tender has to be rejected. Petitioners have accepted before this Court that the rate, that has been quoted by them was (+/-) 10% of the estimated transportation rates and is equal to the rates, that have been offered by the respondent nos. 3 and 4.
Once such factual situation has been admitted by the petitioners before us and we find that the financial bid of the petitioners' company as per own case of the petitioners is not lower than that of the others, and, therefore, pecuniarily preferable, then, in our considered opinion, on this admitted position, it may be true that filing of Income Tax Return for last three years may not be an essential term of the contract but in the case of Rashmi Metaliks Ltd. (supra) one of the principal reason that prompted the Apex Court to intervene in the matter was that the financial bid of appellant-company was substantially lower than that of the others, and, therefore, pecuniarily preferable and, here, in the present case, the said condition is missing, in view of this, at this stage no relief or reprieve can be given to petitioners by us.
Writ petitions are dismissed, accordingly.