(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. We have heard Mr. Mihir Joshi, learned senior counsel, assisted by Mr. Amar N. Bhatt for the petitioners, Mr. Prashant G. Desai, learned senior counsel, assisted by Mr. Kaushal D. Pandya for respondent No. 1 and Mr. Kamal B. Trivedi, learned Advocate General, assisted by Mr. Ajay S. Jagirdar for respondent No. 2.
2. The Surat Municipal Corporation ('SMC' for short) issued a notice inviting tenders through etendering i.e. online at website named www.nprocure.com on 21/07/2012 for construction, operation and maintenance of 14 Foot Over Bridges within Surat City limit on Design, Built, Operate and Transfer (DBOT) basis. The tenders could be downloaded between 24/07/2012 and 09/08/2012 and the tenders were required to be submitted online on 09/08/2012. Prebid conference was fixed for 30/07/2012, which was to be held through email address provided in the tender notice. The entire procedure was to be conducted online.
3. The petitioners downloaded the tender form and along with tender, they submitted Certificate dated 29/02/2012, issued by National Small Industries Corporation Limited ('NSICL' for short). The petitioners did not deposit earnest money and on 30/07/2012, as fairly stated by the learned senior counsel for the petitioners, no email was sent to the respondents raising queries at prebid conference, as required under the tender notice. However, the petitioners served a letter dated 30/07/2012 on the Executive Engineer, Traffic Cell, SMC, which is clear from Annexure 'B' to the writ petition. This letter, though was served on the Executive Engineer, Traffic Cell and was considered by the respondents but since under the policy of the respondents, they were not accepting such Certificate, they did not give any reply to the letter served on 30/07/2012 by the petitioners by hand to the Despatch Clerk of Executive Engineer, Traffic Cell.
4. In this petition, the learned senior counsel for the petitioners has urged that in view of the Certificate issued by the NSICL, the petitioners were not required to deposit any earnest money, which was a precondition for participating in the tender. It is relevant to notice that this Certificate was valid for the purchase programme scheme for participation in tenders in the Central Government Stores, as mentioned in the Certificate. The relevant part of the Certificate dated 29/02/2012 is extracted below:
5. We have carefully examined this Certificate. This Certificate was with regard to Hoardings, Glow Signboards, Signboards, Neon Boards, Kiosks, LED Signboards, Flex Mounting on hoardings boards. For the purpose of installing these hoardings / kiosks etc., erection and fabrication was required to be carried out by the petitioners for which, there was exemption from deposit of earnest money. The etenders were invited by the respondents for construction of Foot Over Bridges on the road and after the Foot Over Bridges were constructed, the contractor was to be permitted to install Hoardings / Kiosks on them. The petitioners' Certificate was not valid so far as construction of Foot Over Bridges was concerned. Therefore, the Certificate dated 29/02/2012, issued by the NSICL was not applicable and could not exempt the petitioners from depositing the earnest money. Since the petitioners have not deposited the earnest money, their tender was not considered by the respondents.
6. The second argument of learned senior counsel for the petitioners is that there was no prebid meeting and only queries were to be made, which were to be answered by the respondents. It is not disputed by the petitioners that at 11:00 a.m. on 30/07/2012, they have not sent any email on the email address given in the tender notice. On the contrary, they got a manually written letter served on the Depatch Clerk of Executive Engineer, Traffic Cell. This was contrary to the terms of tender notice. If a thing is required to be done in a manner prescribed under the tender notice, it has to be done in the same manner and in no other manner. Since, the petitioners were required to send their query by email, which would have compelled the respondents to reply as to their query, but since, no email was sent by the petitioners on 30/07/2012, no reply was given by the respondents. The letter dated 30/07/2012, manually written by the petitioners was of no consequence and was though taken into consideration by the respondents, was not replied to on the ground that in view of the policy decision of the respondents, without earnest money, no bid could be accepted.
7. Mr. Mihir Joshi, learned senior counsel has further urged that mode of sending a query was not an essential condition. We are not in agreement with learned senior counsel in view of the fact that in etendering, everything has to be done online. Therefore, if any query was required to be made, it could only online and not manually.
8. The scope of judicial review with the terms and conditions of tender notice is limited. The Apex Court in M/s. Michigan Rubber (India) Ltd. Vs. The State of Karnataka and Others, reported in 2012 (7) SCALE 414, in Para 31 has held as under:
“As observed earlier, the Court would not normally interfere with the policy decision and in matters challenging the award of contract by the State or public authorities. In view of the above, the appellant has failed to establish that the same was contrary to public interest and beyond the pale of discrimination or unreasonable.................. As noted in various decisions, the Government and their undertakings must have a free hand in setting terms of the tender and only if it is arbitrary, discriminatory, mala fide or actuated by bias, the Courts would interfere. The Court cannot interfere with the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical.”
8.1 The principle laid down by the Apex Court is applicable to the facts of the case in hand.
9. For the aforesaid reasons, we do not find any merits in the writ petition. This writ petition fails and is accordingly dismissed. Interim relief already granted shall stand discharged. Notice is discharged.
[ V. M. Sahai, J. ] [ G. B. Shah, J. ] hiren