IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE A S BOPANNA WRIT PETITION No.35893/2017 (GM-TEN) BETWEEN:
SANDER GEOPHYSICS LIMITED A COMPANY INCORPORATED UNDER THE LAWS OF CANADA, HAVING ITS HEAD OFFICE AT 260 HUNT CLUB ROAD, OTTAWA, ONTARIO CANADA K1VC1 REP. BY ITS AUTHORISED SIGNATORY, MR NARESH AGARWAL (ADULT) (BY SRI SRINIVASA RAGHAVAN, ADV. FOR SRI PRADEEP NAYAK, ADV.) ... PETITIONER AND:
1. THE DEPUTY DIRECTOR GENERAL & HOD REMOTE SENSING & AERIAL SURVEYS GEOLOGICAL SURVEY OF INDIA VASUDHA BHAVAN, KUMARASWAMY LAYOUT BENGALURU 560111 2. TENDER ADVISORY COMMITTEE GEOLOGICAL SURVEY OF INDIA, VASUDHA BHAVAN, KUMARASWAMY LAYOUT BENGALURU 560111 ... RESPONDENTS (BY SRI PRABHULING NAVADAGI, Addl.SG. ALONG WITH SRI C SHASHIKANTHA, CGC. FOR R1 & 2) THIS PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH AND SET ASIDE THE IMPUGNED RECOMMENDATION AND FINANCIAL BID SUMMARY DATED 03.08.2017 (ERRONEOUSLY DATED 03.08.2018) ISSUED BY R-1 WHICH WAS ISSUED BY HIM ON THE BASIS OF RECOMMENDATIONS MADE TO HIM BY R-2 HEREIN, AND WHICH HAS BEEN PRODUCED AT ANNEX-A ON THE GROUND THAT IT IS ILLEGAL, ARBITRARY, UNREASONABLE, DISPROPORTIONATE, HYPER-TECHNICAL, ABSURD AND UNCONSTITUTIONAL AND ETC.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Though the petition is listed for considering IA- 2/2017 for vacating stay, keeping in view the observations made by this Court through the order dated 09.08.2017 while granting the interim order and on noticing that the entire issue lies in a narrow compass, I have heard the learned counsel for the petitioner as also the learned Additional Solicitor General with regard to the contentions as urged in this petition on merits and in that view I am of the opinion that the writ petition itself is to be disposed of through this order.
2. The petitioner has participated in the Global Tender issued by the respondent inviting for engaging Aero-Geophysical Survey Providers through the notice dated 07.07.2017. The petitioner is one among the Survey Providers who had participated in the said tender process. While taking note of Item Rate BoQ submitted by the petitioner, the respondents had found that the rate as quoted therein if actually considered as a quote in INR (Indian Rupee), the same would have been impracticable considering the nature of survey that was required to be made. In that light, the respondents had issued the communication dated 31.07.2017 (Annexure-R.1) to the petitioner. The petitioner through their reply dated 31.07.2017 have clarified the position that the quote as made by them is factually by quoting in US Dollar and the converted rate INR is required to be taken for the purpose of financial bid evaluation. The respondents had not considered such an explanation as putforth by the petitioner and it was indicated that their bid is not accepted. It is in that view the petitioner is before this Court in this petition seeking that the recommendation and the Financial Bid Summary be quashed and a direction be issued to the respondents to reconsider the financial bids of the petitioner by treating the values quoted by the petitioner in its price bid submission.
3. Learned counsel for the petitioner while seeking that the prayer made in the petition be granted in their favour would contend that the format as provided for quoting the Item Rate contains the column shown in INR against which the rate was to be indicated. The same appeared by default and there was no provision to alter the same. The tender document provided that the prices may be quoted in US dollars or in Indian Rupees. It indicated that the evaluation of price bids will be done uniformly in terms of INR with conversion rate to be used at RBI reference rates. In that light, it is contended that since the format by default provided INR and there was no option to change the same to US dollars, the price in dollars though indicated by the petitioner, the conversion could not have been made by them. It is in that light contended that even as per the tender document the respondents on taking note of the same ought to have taken the conversion value in INR for the purpose of evaluation. It is contended that the very fact that the respondents had addressed the letter dated 31.07.2017 indicating that the price at the rate quoted in INR would be impracticable would point to the fact that if the same was converted by considering it as US Dollars, the appropriate price could have been taken note by the respondents and a consideration could have been made.
4. The learned Additional Solicitor General would however refer to the objection statement filed on behalf of the respondents and the documents produced thereto. Insofar as the communication dated 31.07.2017 being addressed by the respondents, in fact it is relied on by the learned Additional Solicitor General to indicate that the price as quoted could not be taken into consideration and it is in that view the same was communicated. It is further pointed out that in the Item Rate BoQ (Annexure-R3) the column indicates that it is shown as ‘INR-16’ and the conversion as made is also in Indian Rupees. Therefore, it is contended that the quote as made by the petitioner was to be taken note by the respondents and no alteration in that regard would be permitted.
5. Reference is made to the General Financial Rules, 2017 to point out that the same provides that the bidder should not be permitted to alter or modify their bids after expiry of the deadline for receipt of bids. In that view, it is contended that in a situation where the consideration of all the bids have already been made and the bid of the petitioner has not been accepted while the bids of the four other bidders have been accepted, a consideration at this stage would not arise.
6. In the light of the rival contentions, the only point for consideration before this Court is as to whether in the present facts and circumstances, the conversion if permitted from the rate as quoted by the petitioner, if taken as in US Dollar the same would amount to the alteration of the bids and whether the Financial Rules relied on by the respondents would be a bar from considering the request of the petitioner.
7. In this regard, as noticed, the bid document provides the option of quoting either in ‘US Dollars’ or in ‘Indian Rupees’. It further provides that the evaluation of the price bids will be done uniformly in INR with conversion rates to be used as RBI reference rate even if the rate is quoted in US Dollars. The very nature of the survey that is required to be made if kept in view, though in the Form it is indicated as INR, from the very communication dated 31.07.2017, it will disclose that the rate if taken as INR would be impracticable which obviously would relate to US Dollars. This aspect of the matter would indicate that even before the bids were analysed, the respondents were aware of the fact that the price as quoted if considered as INR would be impracticable and cannot be taken note of. The petitioner herein on the very same day has clarified that the rate quoted is in US Dollars and the same is required to be converted. Presently, there is no dispute with regard to the factual position that as against the rate as quoted by the other bidders, if the rate as quoted by the petitioner is taken into consideration as a quotation made in US dollars, if converted would be a competitive price and is less than the rate which has been quoted by the other bidders.
8. If that be the position, except for the fact that the petitioner was unable to change the format by changing it as US dollars in the Item Rate BoQ as it was set in default in the format, the entire process would disclose that the quotation as made by the petitioners was in US Dollars. Since the tender document provides that it could be converted by the respondents themselves while analyzing the financial bids, such process could have been adopted by the respondents when the clarification was issued by the petitioner through their reply dated 31.07.2017 (Annexure-R2). In this regard, having taken note of the General Financial Rules referred at Rule No.173(xiii) relied by the Additional Solicitor General, it reads as hereunder:
“Bidders should not be permitted to alter or modify their bids after expiry of the deadline for receipt of bids.”
9. If the said Rule is taken note, in the instant case the conversion which is sought to be made by the petitioner cannot be taken as an alteration or a modification of the Rate quoted by them, but is only a clarification of the currency which has been referred to as the quote. In the instant case, when the tender documents itself provides for conversion of the quote as made alternatively either in the Indian Rupees or in US Dollars depending on the quote that has been made by the Survey Providers, the conversion if made would not violate the said Rule, that too when it was clarified by the petitioner at the earliest point in time before all the financial bids were analysed.
10. Therefore in a circumstance where the entire issue relates to the quote of the petitioner and when the conversion is permissible, rejection of the bids submitted by the petitioner on the said ground would not be justified. In any event, even before analyzing the bids of all the other bidders when this aspect of the matter had been clarified, merely because the Financial Bid Summary dated 03.08.2017 had been prepared by the respondents the same cannot be a basis to reject the claim of the petitioner. In that view if the conversion as made is taken into consideration and since the rate as quoted by the petitioner would be lower than the quote as made by the other Survey Providers, it would also be in public interest to direct the respondents to take note of the bid submitted by the petitioner and analyse the same along with the other bidders.
11. In that view, the respondents are directed to take note of the bid submitted by the petitioner by considering it as a quote made in US Dollars, convert the same into Indian Rupees and analyse the same along with the bids submitted by the other Survey Providers and arrive at a final conclusion thereon and if in that light any alteration is required to the Final Bid Summary dated 03.08.2017, the same shall be made and fresh orders be issued in accordance with law.
Accordingly, the petition and IA No.2/2017 stand disposed of.
Sd/- JUDGE akc/bms