Dismissed

M/s. Jmc Constructions Private Ltd. v. The Union of India

Telangana HC18 Feb 2019WP/2895/2019

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the rejection of a late tender bid by three minutes. Upholding the tender authority's strict adherence to time limits, the court held it lacked discretion to accept belated submissions or alter tender conditions.

What did the court decide?

Dismissed the writ petition; rejected the prayer for accepting the late bid.

M/s. Jmc Constructions Private Ltd. Vs The… — Public Procurement and Tenders | Telangana HC (2019)

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THE HON'BLE SRI JUSTI CE CHALLA KODANDA RAM W RI T PETI TI ON No.2 8 9 5 of 2 0 1 9

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ORDER :

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The petitioner seeks a Writ of Mandamus declaring the action of the respondents in rejecting its bid in respect of tender for ‘Widening and Strengthening/ Reconstruction of existing pavement to Four lane with paved shoulders including replacement/ widening of culverts and bridges from KM 266.348 to KM 283.000 of NH-167 of Mahabubnagar-Jadcherla road in the State of Telangana’, issued by the 1^st respondent, through 2^nd respondent, vide NIT No.SE(R&B)NH/ HYD/ 21/ 2018-19, dated 15.12.2018, as “late physical bid” as illegal, arbitrary and unreasonable and a consequential direction to the respondents to accept and open the bid of the petitioner for the aforementioned tender dated 15.12.2018 and allow the petitioner to participate in the tender process.

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2 . Heard the submissions of Sri P.Vishnuvardhana Reddy, learned counsel for petitioner, Smt. Anjali Agarwal, learned Standing Counsel for 1^st respondent and perused the record.

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3 . It is the case of the petitioner that when its employee submitted the bid documents physically with a delay of three minutes, the respondent authorities rejected the same. The petitioner, while admitting the delay of three minutes in submitting the bid documents, asserted that mere delay of three minutes ought not to have been taken into consideration by the respondent authorities; as it was prevented by some antisocial elements to submit the bid documents, physically, in time; and that as a matter

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of fact, it also lodged a complaint with Panjagutta Police Station on 07.02.2019 at 06: 15 PM. It further asserted that non submission of the bid documents in time was neither intentional nor deliberate, but on account of tense situation prevailing at that time.

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4 . On the other hand, learned Standing Counsel for 1^st respondent, while drawing the attention of this Court to clause 1.3 of the Tender Notification, which mandates that the last date and time of physical submission of Bid Security/ POA etc., is 30.01.2019 up to 15: 00 hours, would submit that the petitioner and the other intending tenderers were clearly notified, under Clause 2.13 of the Tender Notification, that physical receipt of documents listed at clause 2.11.2 of the RFP after the prescribed date and time shall not be considered and the bid shall be summarily rejected. The learned Standing Counsel would further submit that since no discretion is vested with the tendering authority for reconsideration of the bids, which were submitted belatedly, rejection of the petitioner’s bid cannot be found fault with, in any manner.

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5 . Having considered the above rival submissions and having perused the entire material pertaining to notice inviting tender, this Court is satisfied that no discretion is vested with the tendering authority to accept the bid, which is submitted belatedly. In normal circumstances, an offer, which is not in conformity with the tender notification, is termed as non-responsive. In the instant case, the time stipulated for submission of the physical bid is 15: 00 hours on 30.01.2019. The submission of the learned counsel for the petitioner, in his usual persuasive manner, that mere three minutes delay in filing the bid in physical form by the petitioner does not

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really matter and on account of the same, the petitioner’s bid, which is otherwise eligible, cannot be rejected and that the petitioner needs to be given a fair opportunity to participate in the tender process, on the first hand, appears to be very attractive. However, in the context of the law declared by the Apex Court, in a particular situation where the tending authority themselves have no right/ discretion to entertain any bid submitted belatedly, this Court cannot substitute the terms and conditions of the tender on its own. When the intending bidders were provided sufficient time, i.e., till 03: 00 PM on 30.01.2019 for physical submission of Bid Security/ POA etc., the petitioner need not have waited till the last minute for submitting its bid. There can be number of reasons for an individual or an intending bidder for not adhering to the terms and conditions of a particular bid.

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6 . This Court also had an occasion to deal the similar set of facts in KRANS-TVSR ( Join t Ven t u r e) , Secu n der abad r ep. by it s Lead Par t n er K.Ran ga Rao Vs. Sou t h Cen t r al Railw ay , Secu n der abad, r ep. by it s Gen er al Man ager an d ot h er s¹ , wherein, after referring to various decisions of the Apex Court on this issue, it has been held as follows:

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Aft er a closer scr u t in y of all t h e j u dgm en t s r elied on by t h e r espect ive cou n sel, t h is Cou r t fin ds t h at t h e Su pr em e Cou r t h ad h eld t h at :

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1 ) t h e t en der in g au t h or it y is en t it led t o pr escr ibe t h e cr it er ia an d con dit ion s, w h ich ar e r equ ir ed t o be fu lfilled by an in t en din g bidder for con sider at ion of a bid, eit h er as a pr e-con dit ion or at a lat er st age, as lon g as t h e sam e ar e n ot w h im sical an d ar bit r ar y an d h av e n ex u s t o ach iev e t h e obj ect s;

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2 ) it is open for t h e t en der in g au t h or it y t o specify , in pr ecise t er m s, w h at ar e essen t ial an d n on -essen t ial con dit ion s an d t er m s an d w h ich t er m s can be w aived or oppor t u n it y be giv en t o fu lfil ev en aft er accept an ce of t h e bid;

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1 2017 (6) ALT 587

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3 ) t h e t en der in g au t h or it y can n ot an d sh ou ld n ot dev iat e fr om t h e n ot ified pr ocedu r e. How ever , if a discr et ion in deviat ion is t o be ex er cised, t h e sam e h as t o be don e u n ifor m ly an d it is w it h in t h e ex clu siv e pr er ogat iv e of t h e t en der in g au t h or it y an d a t en der er does n ot h av e r igh t t o in sist t h e t en der in g au t h or it y t o ex er cise su ch discr et ion ;

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4 ) t h e sou n dn ess of t h e decision m ay be qu est ion ed if it is ir r at ion al or m ala fide an d in t en ded t o fav ou r som eon e. I n t h e absen ce of t h e allegat ion of m ala fides or fav ou r it ism , it is n ot open for a par t y t o qu est ion t h e discr et ion ex er cised in decidin g w h at is an essen t ial or n on -essen t ial con dit ion ;

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7 . In view of the above discussion, the tendering authority cannot be found fault with in any manner for rejecting the physical bid submitted by the petitioner belatedly. None of the contentions raised on behalf of the petitioner merits consideration. The Writ Petition is devoid of merit and is liable to be dismissed.

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8 . Accordingly, the writ petition is dismissed. No costs.

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Pending Miscellaneous Petitions, if any, shall stand closed.

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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ CHALLA KODANDA RAM, J 18^th February, 2019 Bvv

M/s. Jmc Constructions Private Ltd. v. The Union of India

Case brief

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M/s. Jmc Constructions Private Ltd. v. The Union of India

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