Hon'ble Attau Rahman Masoodi,J.
The petitioner was one of the bidders for the supply of an L.T. Distribution Box for which the tender was floated by the respondent no. 3 Corporation and upon the rejection of his technical bid, and the acceptance of the final bid of the respondent no. 5 that the present writ petition has been filed questioning the decision making process of the respondent Corporation on various grounds.
A prayer to quash the decision of the Committee dated 2nd December, 2015 as also the impugned technical bid evaluation summary dated 5th December, 2015 has been made with a further prayer that a mandamus be issued to consider the petitioner's technical bid in accordance with the tender terms and conditions once again.
The respondent Corporation is represented by Sri J.N. Mathur, learned Senior Counsel who has assisted the court to urge that the said challenge raised does not call for any interference as the decision making process has proceeded on sound evaluation that does not suffer from any infirmity.
We have heard learned counsel for the parties at length and have perused the records of the writ petition as also the document described as Schedule - G as filled up by the petitioner which document has been produced by the respondent Corporation and has not been disputed on behalf of the petitioner.
Sri Kalia, learned Senior Counsel for the petitioner has urged that the petitioner while offering his bid had categorically indicated that the only technical deviation that had been indicated in the offer of the petitioner was about the thickness of the box-ware which was permissible as per the tender terms and conditions and was coupled with a conditional offer that in the event if required the petitioner-company was ready and willing to supply the product as specified in the tender without deviation. For this, he has invited the attention of the Court to the remarks as endorsed in Schedule - G Form that was meant for the said purpose.
He further submits that inspite of the entire material available, the respondent Corporation did not comply with Clause 1.3.4 by raising queries before finally rejecting the technical bid of the petitioner as such the decision is clearly vitiated. He further submits that once the petitioner was willing to supply the specified item, then admittedly the same item that has been purchased by accepting the bid of the respondent no. 5 at almost double the price offered by the petitioner required a consideration. On the other hand the product offered by the petitioner was technically and economically viable for the purpose for which it was being purchased and the petitioner-company had also indicated its supply to other corporations throughout the country. In such circumstances, there was no occasion to reject the product offered by the petitioner on the ground of any deficiency in the technical bid that too even without complying with the procedure as mentioned hereinabove and contained in the tender documents. He submits that the entire procedure for supply of a deviated product had been complied with by the petitioner and if there was any deficiency then under the tender conditions the respondents were bound to extend an opportunity to the petitioner for clarifying the status of its bid which was permissible under the tender conditions itself.
He submits that the decision in order to award the contract to the respondent no. 5 was also vitiated, inasmuch as, three firms that were shortlisted finally alongwith respondent no. 5, two of them admittedly appeared to be proxy firms with no document of supply of any such items and the result was, that with their elimination, the respondent no. 5 was the sole bidder left whose bid has been accepted that too even on much higher rates as indicated above. This has also resulted in loss to the public exchequer and therefore interference is called for in order to rectify the aforesaid deficiencies as pointed out hereinabove.
Sri J.N. Mathur, learned Senior Counsel for the Corporation contends that admittedly the petitioner offered a deviated sample which was not in accordance with the technical specifications as advertised, particularly the specific requirement of the thickness of the box.
He further submits that the impugned evaluation decision categorically records that the sample offered by the petitioner during inspection was found to have been manufactured with a less than 3mm thickness sheet and the box was smaller in size with a deficiency in the depth of the box. It further records that the Bus Bars were not arranged with requisite clearance for its operation and therefore the product was not in accordance with the specification, hence the technical bid of the petitioner was being rejected.
Sri Mathur, therefore, contends that this specific requirement as prescribed, was the minimum required, and formed part of the guaranteed technical particulars. The essence of his submission is that the same was neither negotiable nor it could have been deviated from. The petitioner even otherwise had not offered any sample of the specific requirement that could have been compared or tested as against the deficient sample offered by the petitioner for the purpose of any consideration of deviation. He also points out that no information was provided as required under Schedule- G as detailed in accordance with Clauses 1.13.1, 1.13.3 and 1.14. He contends that there is no material on record to indicate that the tender documents of the petitioner had mentioned the deviated specifications so as to satisfy the test of utility, performance and efficiency or to secure overall economy for supply of such product. In the absence of any such material, there was no occasion for any such assessment as the Corporation did not have either the sample as specified before it or the explanation of the petitioner as required under the aforesaid clauses for the acceptance of the deviated sample. Thus there was no fault in the decision making process and the respondent corporation therefore could not have raised any query as there was no product before it either as a sample or as a viable offer for conducting any enquiry as per Clause 1.3.4 on which heavy reliance has been placed by the learned counsel for the petitioner.
In rejoinder, Sri Kalia has reiterated his submissions and he contends that had the opportunity upon scrutiny been provided to the petitioner as required under Clause 1.3.4 the entire information could have been tendered and the petitioner could have also furnished the sample as originally required under the tender for the satisfaction of the corporation. By denying such opportunity, the entire process of considering and accepting any deviation as per the tender conditions of the respondent stood frustrated thereby rendering the decision making process unlawful and which violates Article 14 of the Constitution of India.
Having considered the rival submissions, we find that the impugned decision rests on rejection of the bid of the petitioner due to shortcomings in the technical specifications of the product that was required to be supplied, particularly with regard to the thickness of the sheet of the walls of the transmission box that was the subject matter of supply under the impugned tender. We may point out that the Pre Qualifying Condition for tender contained in the Special Instructions contains an important note which is as follows:-
"IMPORTANT : The tenderers shall submit one sample along with the tender mandatory. A copy of test certificates of all tests viz. Type tests routine tests and acceptance tests performed for those samples shall also be submitted along with the sample. Tender Bid-Part-II (Price Bid) of only those tenderers shall be opened whose samples shall be found in accordance with the technical specifications."
The same requires the furnishing of the sample alongwith tender which is a mandatory condition. The sample which was submitted by the petitioner was not of the original specification, rather, the only sample offered was of the deviated specifications as per the petitioner himself which indicates that one of the walls described as load bearer had a thickness of 3mm whereas the other walls were of the thickness of 2mm. No sample with the uniform thickness of 3mm was attached alongwith tender by the petitioner. Thus admittedly the sample of the specified product had not been offered by the petitioner for either inspection or comparative consideration.
Coming to Clause 1.3.2.3 of the tender conditions, a tenderer had to submit seventeen documents which also enlists a document described as Schedule - G meant for description of deviation from technical specification. The said Schedule - G as filled up by the petitioner in the deviation column, recites a remark that "if required the petitioner will provide with 3mm before the supply". It is this offer which Sri Kalia submits was sufficient to seek any further clarification if required as per Clause 1.3.4.
At this Stage, we may refer to the provisions of Clause 1.13.3.1, 1.13.3 and 1.14 for the purpose of assessing the aforesaid argument on behalf of the petitioner. The said clauses are extracted hereinunder:-
"1.13. STANDARD 1.13.1. Except as modified by this tender specification, all materials and equipment shall conform to the requirement of the latest editions of relevant ISS/IEC.
1.13.3. Should the Tenderer wish to depart from the provisions of the specifications, either on account of manufacturing practices or for any other reason, he shall clearly mention the departure and submit complete justification supported by information, drawings etc. as will enable to assess the suitability of equipment(s) offered.
In the event of the Tenderer's specifications, drawing, forms and tables etc. being found to disagree with the requirement of this specification at any stage, these specifications shall be binding unless the departures have been duly approved in writing by the Purchaser.
1.14. DEVIATION FROM SPECIFICATION:
This specification is mainly for the guidance of the Tenderer/manufacturer. These requirements of necessity included same specific elements of construction and materials but are not intended to preclude ingenuinity or improvement.
If the Tenderer proposes any deviation from this specification these will be considered provided they are necessary either to improve the utility, performance and efficiency or to secure overall economy. This will be clearly and explicitly explained in the tender. Such deviations shall also be brought out clause in the prescribed schedule."
A Perusal of these clauses would clearly indicate that if a tenderer wishes to depart from the provisions of the specification for any reason then the tenderer will be required to clearly mention as to how the deviated product would improve the utility, performance, efficiency or secure overall economy if installed in place of the original specified product. The request for deviation would be considered provided such explanation is clearly stated in the prescribed schedule.
We have carefully examined Schedule - G with the assistance of the learned counsel for the petitioner, and the learned counsel could not point out any statement given by the petitioner in its tender documents, particularly in Schedule - G about any explanation as to how the deviated product offered by the petitioner would be of utility without compromising with performance or efficiency and as to how it will secure an overall economy. It is thus clear that the petitioner had not complied with the aforesaid condition by mentioning any of those requirements with an appropriate explanation for consideration of its deviated product to enable the purchaser to assess the suitability of the equipment.
In relation to the terms and conditions of the specifications, it would be appropriate to refer to the definition of the word specification as contained in Form-B of the tender documents where the word specification has been defined to mean the specification annexed to the general conditions and the schedule thereto. The technical specifications for the L.T. Distribution Box which is subject matter of supply has been given under the general requirements of specification that has been filed on record. The material and the dimensions coupled with the design of the box are mentioned at Page 95 and 96 of the paper book. The thickness of the box shall be 3mm, is a clear recital therein. Under the column of specific requirement, the thickness of the box has been described as 3mm (min). Thus it is the minimum requirement of 3mm thickness of the wall that has been mentioned in the technical specifications. This has also been mentioned in the designs that are appended to the tender documents. A combined reading of all the provisions as extracted hereinabove would therefore demonstrate that firstly the tenderer has to offer the specified product alongwith its sample. It can also opt for any permissible deviation alongwith the deviated sample with the reasons as per clauses referred to hereinabove.
In the instant case, what the petitioner has done is that it has only offered a deviated sample and without the explanations that were required to be clearly mentioned in Schedule - G. In our opinion, the mention of remarks in the deviation column does not comply with the terms and conditions of the tender. To the contrary, it only mentions that if required the petitioner will provide the product with 3mm thickness before supply. No other explanation as to how the deviated product would be a substitute of the specified product was never made known to the respondent - corporation inspite of it being a mandatory part of the tender documents. Secondly the sample of the originally required product was also not furnished by the petitioner.
Thus there was no material on the basis whereof any query could have been raised by the respondent-corporation. Had the petitioner complied with the aforesaid conditions, and then the corporation without considering the same had proceeded with the matter, then something could have been argued about the decision making process being defective, but here the situation being entirely different the aforesaid argument on the strength of clause 1.3.4 cannot be advanced. To understand it further, Clause 1.3.4 is extracted hereinunder:-
1.3.4. Procedure for opening and processing of Tenders:
Part-I: "Earnest Money', validity & Technical/Commercial Pre-qualifying conditions of the offer shall be publicly opened first on the due date as specified/notified. Part-I of the tenders accompanied with the required earnest money & validity shall be scrutinised and processed in this office to ensure whether the same are conforming to the technical requirements of the specification. Queries as raised by the purchaser on the technical matters as may be necessary shall be referred to the tenderers to give them a chance to clarify only technical details furnished or any wanting information, in order to ensure whether the Tenderer can supply the equipment strictly in accordance with the technical specification. Such queries when raised from this office should be replied in triplicate within the time stipulated from the date of dispatch of such letters from this office failing which, tenders shall be finalised on the basis of the information as may be available. It shall be, therefore, in the best interest of the tenderers to give complete and comprehensive technical particulars description and details of the equipment offered by them conforming to the technical requirement. However, in case, it becomes necessary for the Tenderer to make any addition or subtractions in their original price as listed in Part-II of the tender on account of technical clarifications on deviations etc. against the queries raised by the purchaser to bring the equipment in line with the requirement of the specification, such adjustment should be sent separately along with the technical clarifications in sealed cover. Envelope containing prices of such adjustment should be marked as 'Supplementary price bid' against specification No.____________ which shall be opened along with main price bid part-II. Tenderers are specifically requested to ensure that corresponding price details of the equipment should be sent in separated sealed cover in the same envelope containing technical details otherwise such tenders are liable to be summarily rejected without assigning any reason. After the scrutiny of technical and commercial terms and condition, the date of opening of the price part shall be intimated later on."
A closure scrutiny of the above would indicate that the scrutiny would be carried out to find out as to whether the product offered conforms to the technical requirements of the specification. If any query is to be made then the tenderer will be given a chance to clarify only technical details furnished or any wanting information in order to ensure that the tenderer can supply the equipments strictly in accordance with the technical specification. Thus the scrutiny is for fulfilment of strict compliance of technical specification. It is only thereafter that the tenderer can be given an opportunity for any addition, subtraction in the price bid after the product is technically cleared.
As indicated above, in the instant case, the original specified product was never offered as a sample for the availing of any opportunity of technical assessment. It appears that the petitioner did not have the said product available with it and was attempting to negotiate the contract, that in the event it is able to succeed, it might make an arrangement in future to supply the product of the same thickness as specified in the tender documents. The petitioner had therefore shrewdly and calculatively tailored its offer without furnishing the information in Schedule-G for assessment of its technical bid as observed hereinabove. This was clearly a stealthy and guarded option exercised by the petitioner that is not contemplated under the tender conditions. The petitioner therefore could not have offered a design of the product that suited his profit making venture. The petitioner appears to have intended to negotiate a deviated product but at the same time wanted to keep its option open to keep its bid alive in future. Such trading of terms and conditions in the manner aforesaid does not appear to be compatible to any of the terms and conditions of the tender. It is to be remembered that prescription of the conditions in the tender document lies in the domain of the employer and an offer made by the tenderer has to strictly conform to the tender conditions. Any uncertainty in the offered product does not entitle a tenderer to mould the conditions of tender in a manner so as to suit his interest. Thus the petitioner having adopted an impermissible course of negotiation cannot complain of the decision making process being vitiated. Consequently, the Tender Evaluation Committee, therefore, rightly proceeded not to open the technical bid of the petitioner for any further consideration.
So far as the product being supplied by the respondent no. 5 is concerned, it is obvious that the specifications as originally mentioned are not alleged to have been deviated from and secondly no personal malafides of any surreptitious deal has been raised against any of the officials of the respondent corporation. A product with a specification with more thickness and dimensionally different and with thicker dimensions from that offered by the petitioner would obviously be valued higher than a product of a deviated quality. It is not for this Court to sit in a comparative judgment over the price bid when admittedly the product offered by the petitioner was of a deviated quality with no explanation in the tender documents that were submitted for evaluation. We therefore do not find any merit in the writ petition. It is accordingly dismissed.
Order Date :- 10.2.2016 sahu