Dismissed

M/S. Prime Toll and Metal Recoveries Private Limited, through Director, Me. Iqbal Hussain Khan v. City and Industrial Development Corporation of Maharashtra Limited and Anr.

Bombay HC9 Jul 2014WP/168/2014

Case brief

AI extract

What is this about?

A company challenged the disqualification from a public tender for the operation of a pay and park scheme, arguing that a specific undertaking filed on stamp paper was not an essential condition. The High Court dismissed the petition, holding that since the petitioner submitted its bid accepting the condition, it could not approbate and reprobate. The Court found the disqualification based on non-

What did the court decide?

Writ petition dismissed with no order as to costs.

M/S. Prime Toll and Metal Recoveries Private… — Public Procurement and Tenders | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION.

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CIVIL WRIT PETITION No. 168 of 2014

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M/s Prime Toll & Metal Recoveries Pvt Ltd

]

] ..Petitioner.

City & Industrial Development ] Corporation of Maharashtra and Anr ] ..Respondents.

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Dr Birendra Saraf, Advocate a/with Mr Bipin Joshi

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Advocate i/by Joshi Law Associates for the Petitioner. Mr B.B. Sharma, Advocate for the Respondents.

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CORAM : A.S.OKA AND

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A.S.CHANDURKAR, JJ

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DATED : 9^th July,2014.

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ORAL ORDER :(Per A.S.Chandurkar,J)

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By this petition under Article 226 of the Constitution of India, the petitioner-Company seeks to challenge condition No.10 of the tender document floated by Respondent No.1. Similarly, the petitioner has also prayed for setting aside the decision of the Respondent No.1 of disqualifying the petitioner from participating in the tender process. The respondent

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No.1 – CIDCO had invited E-tender for operation of pay and park scheme at Kharghar Railway Station for a period of three years. The petitioner along with four other bidders had submitted its respective bids in terms of the tender notice. Condition No.10 of aforesaid tender notice required the bidder to submit an undertaking form on Rs.100/- Court Fee Stamp in the prescribed format. On 16^th December,2013 the petitioner was informed that its bid had been held to be ineligible. It is in this back ground that the petitioners have filed the present writ petition seeking aforesaid reliefs.

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Shri Birendra Saraf, the learned Counsel appearing for the petitioners submitted that the petitioner's bid has been held to be ineligible without any justifiable cause. Condition No.10 requiring the submission of an Undertaking on stamp paper was not an essential condition of the tender. It was submitted that on being informed about the defect immediately on 17^th December, 2013 the petitioner had sought to rectify the defects in the tender documents and hence their bid also ought to have been considered. Further, it was

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urged that M/s S.S. Enterprises though blacklisted had been permitted to participate in the bids. Under these circumstances, the learned counsel for the petitioner urged that Condition No.10 of the tender notice was required to be quashed and directions ought to be issued to CIDCO to open the financial bid of the petitioner.

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Shri B.B. Sharma, learned Counsel on behalf of the Respondents by relying upon the affidavit of Shri Ravindra S. Ingole, Assistant Transportation Engineer has submitted that the petitioner's bid was rightly held to be ineligible. The Petitioner had not submitted the Undertaking as required by Condition No.10 in the prescribed format. The Tender Committee on 11^th December,2013 had considered all the bids received and had found that in so far as the petitioner was concerned, the undertaking in the prescribed format was not submitted. However, as the tender document fees and EMD in demand draft form was submitted within time, the same was accepted. The tender committee therefore held the petitioner ineligible to participate in the tender process on account of failure to

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submit the undertaking. The learned counsel, therefore, held the petitioner ineligible to participate in the tender process. The learned counsel, therefore, submitted that having participated in the tender process by accepting condition No.10 of the tender notice it was not open for the petitioner to challenge the same after its tender was held to be ineligible and hence sought dismissal of the writ petition.

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The petitioner thereafter has filed an affidavit in Rejoinder dated 4^th March,2014 on record. The petitioner has submitted that the decision taken by the Tender Committee of holding the petitioner ineligible was against the public exchequer and has further reiterated that submitting the undertaking was not an essential condition of the tender.

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We have considered the submissions made by the learned counsel for the parties. We have also considered the documents filed along with writ petition as well as the statements made in the affidavit in reply and the affidavit in rejoinder.

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In so far as the challenge to Condition No.10 is concerned it is to be noted that the petitioner without

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any demur accepted aforesaid condition and responded to the tender notice by submitting its bid. Having accepted aforesaid tender condition and having submitted the tender form thereafter it is not open now for the petitioner to turn around and seek to challenge said condition No.10 of the tender document. Having participated in response to the tender notice, the petitioner cannot be permitted to approbate and reprobate in the said matter. It was open for the petitioner to have challenged aforesaid condition before submitting its bid. It was also open for the petitioner not to submit its bid in the wake of said condition No.10. But having accepted said condition and having submitted its bid it is not open now for the petitioner to seek to lay a challenge to said condition No.10. The submission in that regard cannot be, therefore, accepted.

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In so far as the act of holding the petitioner ineligible on account of failure to comply with condition No.10 is concerned, it has to be noted that as per aforesaid condition the bidder was required to submit an undertaking on stamp of Rs.100/- in the prescribed

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form. Note No.1 appended to the tender notice specifically stipulates that failure to attach necessary documents along with the tender would render the applicant ineligible for bidding without any intimation. The tender committee in its meeting held on 11^th December, 2013 found that the petitioner had not submitted an undertaking in the prescribed format. It however, noted that though the tender document fee and E.M.D. in D.D.form was not uploaded within the stipulated period, a hard copy was submitted within time and hence the same was taken into account. On account of failure to submit an undertaking in the prescribed format the bid of the petitioner was held ineligible. It is to be noted that in paragraph 12 of the affidavit-in-reply dated 5^th February, 2014 the respondents have specifically averred as under :

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“12.(a) I say that upon downloading petitioner's bid documents it was noticed that the Petitioner has not uploaded the following document on the e-portal:-

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(i) undertaking for submission of tender in prescribed format, (which was a breach of

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condition no.10)

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(ii) Scanned copy of the EMD demand draft (which was a breach of condition no.3.6.3)

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(iii) Scanned copy of Tender document fee (which was a breach of condition no.3.2)

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(b) I say that undertaking for submission of tender forms a part of the contract as defined in the tender, and therefore is a mandatory and indispensable document.”

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The petitioner thereafter filed affidavit in rejoinder dated 4^th March,2014. However, the assertions made in paragraph 12 of the affidavit-in-reply have neither been dealt with nor the statements made therein have been denied. It is, therefore, clear that the petitioner's bid has not been considered on account of failure to submit the undertaking in the prescribed format. In effect, the petitioner's tender has been held ineligible in terms of the tender notice itself. The tender committee has taken into account the failure to submit the said undertaking and has therefore held the petitioner ineligible to participate in the bid. It has to be noted that in so far as the other shortcomings in

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relation to scanned copy of the E.M.D. Demand draft and the tender document fee is concerned as the hard copy thereof was submitted the same were duly taken into account by the tender committee. It, therefore, cannot be said that the respondent has acted arbitrarily or in a manner contrary to the conditions of the tender notice while holding the petitioner ineligible to participate in the bid. As the petitioner failed to submit the required undertaking in the prescribed format the bid of the petitioner was held ineligible. There is, therefore, no reason whatsoever to interfere with the aforesaid decision of the respondents and the tender committee of not considering the petitioner's bid.

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We, therefore, find that there is no merit whatsoever in the writ petition. The same is, therefore, dismissed with no order as to costs.

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Ladda (PA)

M/S. Prime Toll and Metal Recoveries Private Limited, through Director, Me. Iqbal Hussain Khan v. City and Industrial Development Corporation of Maharashtra Limited and Anr.

Case brief

What is this about?

What did the court decide?

M/S. Prime Toll and Metal Recoveries Private Limited, through Director, Me. Iqbal Hussain Khan v. City and Industrial Development Corporation of Maharashtra Limited and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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