Hon'ble Ajit Kumar,J.
1. Heard Ms. Jyoti Mani Pandey, learned counsel for the petitioner, Sri Santosh Kumar Mishra, learned counsel for the respondents and perused the record.
2. By means of the present writ petition under Article 226 of the Constitution, the petitioner has approached this Court for a writ of mandamus directing the respondent No.- 2 to qualify the tender of the petitioner for technical bid so as to be part of financial bit.
3. The argument advanced by the learned counsel for the petitioner is that on very technical grounds the petitioner's tender application has come to be rejected at the time of opening of technical bid and, accordingly, the petitioner has been wrongly disqualified for next stage of financial bid.
4. Learned counsel for the petitioner has drawn our attention towards the order dated 9th October, 2019, whereby the petitioner has been communicated the reasons for petitioner's disqualification at the time of opening of the technical bid. There are two reasons assigned basically: one is incomplete MTF; and not uploading of document undertaking qua 10% of the additional liability of inexperience tenderer. It is admitted to the petitioner as has come up in the pleadings itself that initial bank guarantee that was uploaded along with tender application was of the year 2018 and was in respect of some other notice inviting tender in which the petitioner had applied by moving appropriate tender application and it is only subsequently that having come to realize, he got a fresh bank guarantee submitted on 16th August, 2019. The technical bid was opened as per schedule and it was found that the petitioner's application accompanied the bank guarantee in respect of the another tender application pursuant to some other tender and, accordingly, the petitioner's tender application was rejected at the stage of technical bid.
5. The argument advanced by the learned counsel for the petitioner is that it was a bona fide mistake and in any view of the matter the bank guarantee undertaking format was submitted well within time and it cannot be said that there was any ulterior motive behind submission of a wrong bank guarantee nor, there was any intention as such. It is also argued that as far as the format provided for the e-tender application qua 10% additional bank guarantee, the petitioner had also signed the document regarding 10% additional guarantee which also shows the bona fide on the part of the petitioner in submitting the tender application. The counsel for the petitioner has also drawn our attention to the relevant clause of the Notice Inviting Tender whereunder it is provided vide sub-clause (ii) (of clause 7) that on the failure of tenderser to deposit bank guarantee as stipulated in clause 7 (i)(b) and (c) within 15 days from the date of acceptance of tender further extension of time can be provided for. It is thus argued that it was not as such any mandatory requirement that at the time of submission of tender application the bank guarantee will also have to be submitted. It is also argued on behalf of the petitioner that another tenderer, namely Irshad Hussain whose tender application has been entertained, whereas his documents were also not uploaded with proper numbering.
6. Per contra, the argument advanced by the learned counsel for the respondent is that every application of tender with all formalities were to be submitted by the last date and no correction or amendment in the application was permissible after the last date got over. He also submits that no submission of 10% additional bank guarantee undertaking by inexperienced tenderer goes to the root of eligibility condition and Technical Bid Committee did not commit any fault in disqualifying the petitioner in the technical bid evaluation.
7. Having heard learned counsel for the parties and their argument advanced across the Bar and having perused the documents as have been brought on record and also the original records that were summoned under our earlier order, the basic question that we need to consider is:
(A) Whether merely because the numbering was not done on various pages, the tender application was liable to be rejected; and (B) Whether the petitioner's subsequent bank guarantee undertaking was liable to be treated as within time and the respondents, therefore, were not justified in rejecting the tender application on such a technical ground at this stage of technical bid.
8. Learned counsel for the petitioner has relied upon the judgment of the Apex Court in the case of Rashmi Metaliks Ltd and another v. Kolkata Metropolitan Development Authority and others (Civil Appeal No. 6772 of 2013 decided on 11th September, 2013) in which vide paragraph 13 the Apex Court has held thus:-
"13. 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. 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."
9. As far as the point No.(A) is concerned, we find that this could be too technical a ground because even if the various documents uploaded along with tender application are not numbered, the documents do carry the details that respondents are to verify for the purposes of the technical bid. In our opinion unless Technical Bid Committee finds that the documents that have been uploaded do not bear the required details and are irrelevant or that the documents are not as per the format provided for, the Technical Bid Committee would not be justified in rejecting the tender application on such ground.
10. We do not find any general proposition laid down by the Apex Court because the technicalities that were involved in the said case were held to be not sufficient to reject of the technical bit. The principle as was laid down in the case of Rashmi Metalike (supra) has come to be reiterated by the Apex Court in the case of Central Coalfieds Ltd and another v SLL- SML (Joint Venture consortium) and others, AIR 2016 SC 3814.
9. Applying the above test as discussed and the exposition of law as has come to emerge from the judgments (supra), we are of the opinion that as far as the ground for not considering documents submitted by the petitioner just only because paging was not done, could not itself be a ground to reject the tender application of the petitioner and to that extent the order is not justified.
10. However, coming to the second aspect of the matter as to whether the petitioner's tender application was rightly rejected for not furnishing the bank guarantee undertaking is now a moot question around which this controversy revolves.
11. For considering this above aspect of the matter, we have carefully examined the pleadings and find two things: one is that the petitioner's own admission is that he got wrongly uploaded a document in the form of bank guarantee undertaking. In such an event, it goes without saying that the petitioner's own stand is that tender application did not accompany the requisite papers and so he failed in furnishing the tender application as per the required norms and format prescribed in the Notice Inviting Tender.
12. So far as the clause 7 (b) is concerned, the petitioner's case cannot be said to be covered by that. For the better appreciation of this question entire clause 7 of NIT is reproduced hereunder:-
7. Security Deposit
(i) The successful Tenderer shall furnish, within fifteen working days of acceptance of his tender, a Security Deposit for the due performance of his obligations under the contract. The Security Deposit shall consist of;
(a) A sum equivalent to 5% of the value of the Contract submitted electronically through NEFT/RTGS/ other electronic means in favour of the General Manager (UP), Food Corporation of India The contractor at his option may deposit 50 (fifty) percent of this amount with in fifteen working days of acceptance of his tender while the balance 50 (fifty) percent may be paid by the contractor by deductions at the rate of 10(ten) percent from the admitted bills. The Security Deposit shall not earn any interest
(b) Another sum equivalent to 10% of the value of contract, in the form of an irrevocable and unconditional Bank Guarantee issued by ''Scheduled Commercial Bank' notified by RBI (excluding all Urban/Rural/State Co-operative banks and Gramin Banks) in the format prescribed in Appendix-IV which shall be enforceable till six months after the expiry of the contract period.
(c) If applicable, an additional sum equivalent to10% of the value of the contract (in addition to a & b above), in terms of an undertaking provided by the tenderer for relaxation of eligibility conditions, in the form of an irrevocable and unconditional Bank Guarantee issued by ''Scheduled Commercial Bank' notified by RBI (excluding all Urban/Rural/State Co-operative banks and Gramin Banks) in the format prescribed in Appendix-V which shall be enforceable till six months after the expiry of the contract period.
(ii) In case of failure of tenderer to deposit the Bank Guarantee as stipulated in clause 7 (i) (b) & (c) within 15 working days of acceptance of his tender, further extension of 15 working days can be given subject to levy of penalty @1 % of the whole amount of the Security Deposit and another 15 working days with levy of penalty @2 % on the whole amount of the Security Deposit by GM (R).
(iii) The Security Deposit furnished by the Tenderer will be subject to the terms and conditions given in the Tender and the Corporation will not be liable for payment of any interest on the Security Deposit.
(iv) In the event of the Tenderer's failure, after the communication of acceptance of the tender by the Corporation, to furnish the requisite Security Deposit under clause 7(i)a by the due date or requisite Security Deposit in the form of Bank Guarantee under 7(i) b & 7(i)c including extension period (applicable to submission of BG only) his Contract shall be summarily terminated besides forfeiture of the Earnest Money and the Corporation shall proceed for appointment of another contractor. Any losses or damages arising out of and incurred by the Corporation by such conduct of the contractor will be recovered from the contractor, without prejudice to any other rights and remedies of the Corporation under the Contract and Law. The contractor will also be debarred from participating in any future tenders of the Corporation for a period of five years. After the completion of prescribed period of five years, the party may be allowed to participate in the future tenders of FCI provided all the recoveries/dues have been effected by the Corporation and there is no dispute pending with the contractor/party.
(v) If the successful tenderer had previously held any contract and furnished security deposit, the same shall not be adjusted against this tender and a fresh security deposit will be required to be furnished."
13. The very first sub-clause (1) says that the successful tenderer shall furnish, within 15 workings days of acceptance of his tender, security deposit for due performance of his application under the contract and then sub-clause (i) (b) of clause 7 says that another some equivalent to 10% to the value of the contract in the form of unequivocal and unconditional bank guarantee issued by a scheduled commercial bank is to be submitted.
14. From a bare reading of these provisions, it is very much clear that after a tenderer becomes successful in the selection of tender application process by the relevant committee set up for that purpose then the question arises of such a tenderer submitting the bank guarantee duly issued by a scheduled commercial bank. A bank guarantee would certainly be a document authoritatively issued by the bank under its seal and signature of an authorized officer. One has to distinguish between the 'bank guarantee undertaking' and the 'bank guarantee'. The bank guarantee undertaking is mere promise to perform a particular act at a future point of time on some contingency occurring whereas the bank guarantee becomes an instrument or a document issued by the financial institution, as we find under the clause, to be submitted physically before the respondent who has floated the tender and has selected the person for entering into the contract. Clause 7, therefore, provides that once a party has come to be selected and agreement has come to be entered the condition precedent is that the such party shall submit the bank guarantee. So the contingency that arises after acceptance of tender applications and before agreement is entered.
15. A conjoint reading of sub-clauses (i) (A), (ii) (B) and (i) (C)- (ii) lead us to the only conclusion that submission of bank guarantee would arise only after a tenderer has been selected and is being invited to enter into an agreement. In the present case such a situation had not arisen and, therefore, the petitioner's case would not come within the ambit and scope of sub-clause (c)-ii of clause 7 and the argument advanced by the learned counsel for the petitioner deserves rejection and is hereby rejected. No other argument has been advanced.
16. We find no merit in the petition and the petition is, accordingly, dismissed.
17. The original records are returned to the learned counsel for the respondent.
Order Date :- 28.11.2019 Atmesh (Ajit Kumar,J.) (Ramesh Sinha,J.)