Manmohan Sarin, J.@mdashPetitioner by this writ petition seeks quashing of the decision taken by respondent no. 1-Delhi Transport Corporation to award the contract of supply of 500 Non A.C. and 125 A.C. Low Floor buses to Tata Motors Ltd-respondent no. 2. Further a writ of mandamus is sought by the petitioner directing respondent no. 1 to award the contract in its favour. Respondent no. 1-Delhi Transport Corporation and invited bids for the supply of 500 Non A.C. and 125 A.C. Low Floor CNG buses. Global Bid No. DCGM-(MS-1)C&BP/820/2006 was issued vide Bid Invitation Notice dated September, 2006. Petitioner, respondent no. 2-Tata Motors Ltd and respondent no. 3-King Long had submitted their bids. Petitioner is a leading manufacturer of commercial vehicles, buses, trucks and special vehicles. Petitioner claims that it has a distinction of having put half a million vehicles on Indian roads. It has the latest ISO/TS corporate certificates. It has obtained certification no. 16949 of July, 2006 which is specific to auto Industry. In other words, it claims impeccable credentials as an auto manufacturer of repute. Petitioner had submitted its tender in response to the global bid. It was found to be responsive and so declared by respondent no. 1-D.T.C.
2. Tata Motors Ltd.-respondent no. 2 herein is also in the business inter alia of manufacture and sale of C.N.G. buses. Petitioner contends that respondent no. 2''s bid was ex facie non responsive. In terms of did document, it was liable to be mandatorily and summarily rejected. Petitioner avers that in these circumstances, it is of no consequence that respondent no. 2 is found to be L-1. Respondent no. 3-King Long has been impleaded as a proforma party inasmuch as it has been declared to be L-3 and petitioner being declared as L-2.
3. Before we consider the specific grounds taken by the petitioner in assailing the award of contract to respondent no. 2, Mr. Rajiv Nayar, learned senior counsel appearing on behalf of the petitioner made a prayer in the alternative that if for some reason, court was of the opinion that defects and infirmities in the bid of respondent no. 2 could be condoned, then the award of contract should be split between the petitioner and respondent no. 2. Petitioner was willing to supply at the same rates as quoted by respondent no. 2-Tata Motors.
4. Let us consider the case as set up by the petitioner.
Mr. Rajiv Nayar, learned senior counsel submitted that initially DTC had invited bids in November, 2005 for supply of CNG buses. In response to the said bid, petitioner along with others had applied. Petitioner happened to be the lowest bidder. However, respondent no. 1-DTC for reasons best known to it, annulled the said tender on 12th September, 2006. Petitioner says that the said cancellation and the present action of respondent no. 1-DTC in awarding the contract to respondent no. 2-Tata Motors Ltd are manifestation of its bias against the petitioner and the determination to somehow exclude the petitioner.
5. Coming to the plea of respondent no. 2 being ineligible, Mr. Nayar urged that being a global tender, all the documents contained detailed instructions and conditions for submission of bids from prospective bidders. The bids were put in two parts i.e. Techno Commercial and Price Bid. Pre Bid Conference was held on 10th October, 2006 with prospective bidders who had purchased the bid documents for the purpose of holding technical and commercial discussion and providing clarifications, as needed. Respondent no. 1-DTC was to answer the queries of prospective bidders and clarify variations, deviations, alternative proposals etc to be discussed in the Pre Bid Conference. In terms of clause 4.5., after incorporating amendments acceptable to respondent no. 1, bid documents were to be frozen w.e.f. 21st October, 2006.
6. Mr. Nayar submits that the provision relating to furnishing of the bid security and earnest money deposit were important and sacrosanct terms. In terms of the bid documents, validity of the bid was for 240 days and the bank guarantee was to be valid for 120 days beyond the validity i.e for 360 days. These were put in a separate envelope. Clause 15.2 provided:-
Any bid not accompanied with EMD in the acceptable form will be summarily rejected by Purchaser as being non responsive.
7. Respondent no. 2 had submitted a bank guarantee which was valid upto 31st March, 2007. The bank guarantee was required to be for a minimum period of 360 days i.e. upto 15th November, 2007. In these circumstances, respondent no. 1-D.T.C. was obliged to summarily reject the bid of Tata Motors Ltd but instead it scrutinized and evaluated the same. Mr. Nayar urges that there was no provision to condone this non compliance and this could not have been treated as a mere deviation. Thus respondent no. 2 is liable to be eliminated from the tender process. The extension of the bid subsequently upto 30th November, 2007 by respondent no. 2 would be of no avail.
8. Mr. Nayar, at this stage, also sought to explain the alleged shortcomings in petitioner''s own tender and bid. He submitted that mentioning of the validity period in the covering letters is upto 21st May, 2007 was of no consequence. He submitted that bid documents as furnished by the petitioner which constituted the bid, clearly stipulated in clause 6 which reads as under:-
We agree to abide by this Bid for a minimum period of 240 days from the date of opening and it shall remain binding upon us and may be accepted at any time before the expiration of that period or any extended period mutually agreed to.
He submits that in view of the above clause, the validity period mentioned in the covering letter confining the bid validity upto 21st May, 2007 was liable to be ignored. We may notice at this stage that the covering letter also contained a stipulation that it was an integral part of the bid. Hence the same does introduce an ambiguity regarding the validity of the bid.
9. Learned counsel for the petitioner relied on
10. Mr. Parag Tripathi, learned senior counsel appearing on behalf of respondent no. 1-DTC produced the original record relating to the tender and evaluation of the same. He submitted that the entire tender opening process had even been video-graphed to ensure transparency and fairness. The Techno Commercial bids were opened in the presence of the authorised representatives of the parties without any objection from them. This was subsequent to the Pre Bid Conference. He submits that at the time of opening of Techno Commercial Bids, the issues regarding the date of validity of the petitioner''s bid as also respondent no. 1''s bid not having the bank guarantee for the requisite period were duly noticed.
11. Mr. Tripathi, senior counsel for respondent no.1-DTC as well as Mr. Mukul Rohtagi, senior counsel for respondent no. 2 submitted that a consensus had been arrived at between all the bidders as well as with the DTC for proceeding further with the opening of the Pricing Bid. It is for this reason that no objection, protest or any reservation was made by any of the parties till the opening of the Pricing Bid. In keeping with the decision to proceed with the opening of the Pricing Bid, petitioner''s infirmity with regard to validity period and number of other material deviations were also condoned and accepted. Similarly respondent no. 2 was permitted to extend the date of validity of the bank guarantee. Learned counsel have drawn our attention to the letter dated 22nd January, 2007 appearing at page 96 of the paper book. By the said letter, petitioner stated as follows:-
(1). We confirm our compliance with the terms & conditions and specifications with the requirements of the Bid documents & submit unconditional confirmation of compliance/acceptance of the terms & conditions and specifications of all the Bid Documents.
(2) We agree to withdraw any or all the terms & conditions, specifications not in accordance with requirement of Bid Document including the deviations given in Annexure 7 & Annexure C of the Bid.
(3) We submit unconditional confirmation of acceptance of all terms & conditions and specifications of Bid Documents without any financial implications.
12. Apart from the confirmation for compliance with regard to deviations and acceptance of terms as given above by the petitioner, after the opening of the price bid, it was noticed that petitioner''s bid was having certain unacceptable terms with regard to payment conditions. There were again withdrawn by the petitioner vide its letter of 15th February, 2007.
13. We find considerable merit in the above submission of respondents. It appears that parties were at ad idem with regard to removal of the defects and infirmities and condonation thereof in the bid of the petitioner as well as that of respondent no. 2. Respondent no. 1-DTC accordingly proceeded to condone the deviations and infirmities in petitioner''s bid as well as in respondent no. 2''s bid with regard to bank guarantee and thereafter the pricing bids were opened. The minutes recorded at the time of opening of the price bids also bears testimony to the fact that the process of opening of the price bid was carried out without any protest, reservations or objection from any of the parties. Based on this, learned counsel for respondents rightly contend that it is no longer open to the petitioner to raise any objection or questioning the eligibility of respondent no. 2. Any such right stands waived. In fact, petitioner itself has had the benefit to having objections to the validity period to its bid and other deviations being condoned and rectified. Petitioner cannot now be permitted to raise the plea for excluding respondent no. 2 who is declared as L-1 and lowest bidder.
14. Reference is invited to the decision of the Supreme Court in
It is true that in submitting its tender accompanied by a cheque of the Union Bank of India and not of the State Bank clause 6 of the tender notice was not obeyed literally, but the question is as to whether the said non compliance deprived the Diesel Locomotive Works of the authority to accept the bid. As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or so significance. The requirements in a tender notice can be classified into two categories-those which lay down the essential conditions of eligibility and the others who are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases.
In the present case the certified cheque of the Union Bank of India drawn on its own branch must be treated as sufficient for the purpose of achieving the object of the condition and the Tender Committee took the abundant caution by a further verification from the bank. In this situation, it is not correct to hold that the Diesel Locomotive Works had no authority to waive the technical literal compliance of clause 6, specially when it was in its interest not to reject the said bid which was the highest.
In the present case, respondent No. 2 had furnished a valid guarantee for the required amount but inadvertently it happened to be less than of 360 days, as required. Respondent No. 2 got the same extended well in advance. As regards the petitioner, there was ambiguity in the validity period of the bid due to a different period being mentioned in the covering letter than that in the bid document. As noticed earlier, the above defects were treated as irregularities and condoned and rectified with the consent of all affected parties and the price bid was evaluated on merits.
15. We may also notice that there is a substantial difference running in crores in the rates offered by the petitioner as against the bid of respondent no. 2. Consideration of public interest and revenue would also be subserved in the award of the contract to respondent no. 2 who is the lowest bidder. In these circumstances, decision taken to condone and permit the removal of defects and infirmities either in the bid period of the petitioner and period of bank guarantee of respondent no. 2 which has been made applicable to both of them has subserved the interest of revenue without prejudicing either of the parties who have been both had the equal opportunity of having their bids evaluated on merits on the basis of price quoted. We may also notice that there is no merit in the petitioner''s plea that respondent no. 2 had misused the confidential information with regard to the prices of the petitioner which became available to respondent no. 2-Tata Motors at the time of tender submitted in November, 2005 to know the pricing and costing structure of the petitioner and the same enabled them to under quote the petitioner. It goes without saying that petitioner also had the opportunity of seeing the price structure of respondent no. 2 and accordingly, there was no unfair advantage which respondent no. 2. It is simply a case where the petitioner has been outwitted in the bidding process. It has simply missed the bus. However, the same cannot be converted into a plea for questioning the award of contract to respondent no. 2.
In view of the foregoing discussion, we find no merit in the writ petition and the same is dismissed.
