Civil Writ Petition No.18725 of 2011 -1- *** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** Civil Writ Petition No.18725 of 2011 Date of decision: 30.11.2011 Utsav Safety Systems Pvt. Ltd. ...Petitioner Versus State of Haryana and others ...Respondents CORAM: HON'BLE MR.JUSTICE HEMANT GUPTA HON'BLE MR.JUSTICE G.S.SANDHAWALIA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. Puneet Bali, Advocate for the petitioner. Mr. Vinod S.Bhardwaj, Addl. Advocate General, Haryana with Mr. Narender Singh, Deputy Advocate General, Haryana for respondents no.1 and 2. Mr. Ashish Chopra, Advocate for respondent No.3. **** G.S.SANDHAWALIA, J. 1. The petitioner in the present case has approached this Court seeking a writ in the nature of mandmaus directing the official respondents not to issue a letter of intent in favour of respondent no.3 for the project of High Security Registration Plates (for short “HSRP”) in Haryana and for declaration in the Civil Writ Petition No.18725 of 2011 -2- *** nature of Certiorari against respondent no.3 being declared as L- 1 and further writ in the nature of mandamus directing the respondent to award the said tender in favour of the petitioner and issue a letter of intent in its favour. 2. The case of the petitioner is that it as a lead member of consortium had given the bid for the project of HSRP in Haryana in pursuance of the application invited from interested parties by respondents No.1 and 2. The last date of submission of bids form was 21.7.2007 and the petitioner had submitted its tender on 5.7.2007 and was declared successful in the pre- qualification bid along with other parties. Even in the technical bids which were opened on 11.8.2011, the petitioner and respondent no.3 along with six others were found eligible and declared successful and accordingly, on 14.9.2011, the financial bids were opened and respondent no.3 was declared as L-1 in utter contravention and disregard to the mandatory conditions of the tender document issued by the official respondents. 3. In brief, the case of the petitioner was that the financial bid was to be submitted in two forms i.e. Financial Bid Form I and Financial Bid Form II and as per clause 2.9.2 which was also amended, the bidder was to fill the rates and prices both in figures and words in financial bid. Both the original clause and amended clause read as follows:- Civil Writ Petition No.18725 of 2011 -3- *** Original Clause Amended Clause The bidder shall fill in rates and prices both in figures and words in Financial bid. The bidder shall quote rates in Financial Bid Form I for supply and fixing complete set of Registration Plates, including 3rd Registration Plate (where required) and snap lock, for each category of vehicles. Item wise details of rates shall be given in Financial Bid Form-II for the purpose of Individual Registration plate. The sum total of Financial Bid Form-II should not be more than the rate quoted Form-I. The rates quoted by the Bidder shall be fixed and which can be charged from a vehicle owner for each category of vehicles and shall be inclusive of all duties and taxes except the local taxes, VAT etc. which may be charged extra, as applicable in the State. The Bidder shall fill in rates and prices both in figures and words in Financial bid. The bidder shall quote rates in Financial Bid Form I for supply and fixing complete set of Registration Plates, including 3rd Registration Plate (where required) and snap lock, for each category of vehicles. Item wise details of rates shall be given in Financial Bid Form-II for the purpose of meeting with the piece- meal requirement of Individual Registration plate. The sum total of different items of a complete set of Registration Plate in Financial Bid Form-II should not be more than the rate quoted in Form-I for a complete set for different categories of vehicles. The bidder shall quote the base price of the HSRP and all the taxes, duties and levies separately. 4. Thus the case of the petitioner is that the sum total of Civil Writ Petition No.18725 of 2011 -4- *** different items of the complete set of registration plate in Financial Bid Form II should not be more than the rate quoted in Financial Bid Form I for a complete set for different categories of vehicles and that respondent no.3 had violated this condition in the financial bid and, therefore, could not have been declared as L-1. Against this violation, the petitioner had represented on 20.9.2011 and prayed that declaration of respondent no.3 as a successful bidder was not correct and it was liable to be declared as a successful bidder for L-1. On not getting any response from the official respondents, the petitioner approached this Court and placed Annexures P-4 and P-5 on the record, which is the comparative chart of respondent No.3 and the petitioner in Financial Bid Form I and in Financial Bid Form II to show that there was a violation of the clause on the basis of which the State and the private respondent were called upon to file their replies. 5. The respondent-State has filed a detailed reply giving the background of the tender proceedings and submitted that 9 bidders who had submitted the bids had qualified at the pre- qualification stage but in the technical evaluation one bidder was not found to be qualified and eventually 8 bidders were left in the race. It was the case of the State that the State Government was to select a bidder for supplying and fixing HSRP on the vehicles in the State and a Committee was constituted by the State Government under the chairmanship of the Transport Commissioner with the Director Supplies and Disposal, Additional Civil Writ Petition No.18725 of 2011 -5- *** Transport Commissioner, Joint State Transport Controller (Tech.) and Sh.A.P. Bahadur, ADB, PPP Expert as members to evaluate the bids. That aluminum plates of four different sizes are to be supplied by the selected bidders with one sticker and one pair of snap locks and the lowest bidder has to be selected on the basis of sum total of weighted rates arrived at after multiplying the prices quoted for different types of vehicles with weights i.e. Approximate percentage of vehicles registered during 2009-10 attached to these categories. It was the further case of the State that at the time of opening of the Financial Bids on 14.9.2011, the bidders themselves apprised the Evaluation Committee that the taxes/duties mentioned in Form-I by different bidders may vary and the amount of taxes/duties mentioned by the bidders in their bids may not be supported with documents and, therefore, their correctness may be questioned. The bidders stated that the base price including excise duty may be considered for calculation of the sum total amount to give equal and fair opportunity to all the bidders instead of the price including all taxes/duties. Keeping in view this request, the Committee decided to evaluate the bids on the basis of base price plus excise duty. It was further pleaded by the State that on opening of the financial bids it was found that some of the bidders had not filled up Financial Bid Form I and Financial Bid Form II properly and there were minor deviations and as per the request for proposal document, the bidders were required to mention the price of Civil Writ Petition No.18725 of 2011 -6- *** complete set of registration plates/items for four different categories of vehicles, namely, two wheelers, three wheelers, Light Motor Vehicles/Passenger Cars and Medium/Heavy Commercial Vehicles showing the base price and all the taxes/duties separately. The prices quoted for the individual plates/items in Financial Bid Form II, when added, were to match with the price of the complete set mentioned in the Financial Bid Form I. The purpose of obtaining the bids in Financial Bid Form I was to select the lowest bidder, based on the prices of the complete set of registration plates/items quoted by the bidders and the weights (approximately percentage of vehicles registered during 2009-10) attached to the four different categories of vehicles. The rates to be charged from vehicle owners was, thus, to be arrived at based on the individual plates/items supplied to them. 6. The State in its reply has further clarified that while evaluating the financial bids, it was noticed that respondent no.3 had quoted Rs.214.00 per piece for the plate size of 340 X 200 mm in form II, whereas in form I the price of complete set of plates including the third plate sticker and snap lock had been quoted as Rs.298.53 in respect of category IV vehicles i.e. Medium/Heavy Commercial Vehicles. In Form-II, the said bidder had mentioned the prices inclusive of all taxes/duties whereas in the relevant column of the Form it had been written that the prices was inclusive of excise duty and exclusive of VAT and Civil Writ Petition No.18725 of 2011 -7- *** service tax and after taking into consideration even with taking the higher price quoted in Form-II, the sum total of respondent no.3 on the basis of base price + taxes/duties also showed that respondent no.3 was the lowest bidder. After applying the formula as laid down in Annexure Y of the tender document, the sum total of price of respondent no.3 came to Rs.18415.84, whereas the sum total price of the petitioner came to Rs.26206.60 when calculated on the basis of base price + excise duty. Even while calculating the higher price for plate size 340 X 200 mm, the sum total in case of respondent no.3 was Rs.19812.34. Similarly, the sum total price in respect of respondent no.3 when calculated on the basis of base price + all taxes/duties came to Rs.22311.65, whereas in case of petitioner it came to Rs.29482.43. While taking into consideration the higher price of Rs.214/- for the plate size 340 X 200 mm, the sum total price in case of respondent no.3 again came to Rs.23940.12 and, thus, it was pleaded that respondent no.3 had rightly been declared as L-1 and there was substantial difference between the petitioner who was L-1 and the minor deviations in filling up the financial bids have no material effect. It was also pleaded that clarification had been sought from respondent no.3 regarding price of one plate for medium/heavy commercial vehicles and the said bidder had clarified that the complete plate set would work out at Rs.457.25 in respect of 4th category. In the written statement, the table was also prepared by the State Civil Writ Petition No.18725 of 2011 -8- *** to show the difference in the rates between the petitioner and respondent no.3 and the percentage of the difference which varied from 10.47% to 85.23% and it was stressed that it was the public which was to pay for these registration plates, therefore, it was the duty of the State to select such a bidder who supplies the registration plates to the public at the lowest possible price. Reference was also made to the direction passed by the Hon'ble Apex Court in IA No.10 in Writ Petition (Civil) No.510 of 2005, whereby Government of Haryana had been directed to implement the scheme of the High Security Registration Plates within eight weeks from the date of order i.e. 13.10.2011. 7. In the written statement filed by respondent no.3, stress was laid upon the consent taken by all the eight successful bidders who had crossed the hurdle of the technical bid wherein they had agreed that the weighted price should be calculated on the basis of base price which will include excise duty. It was also mentioned that under Form I, the first category of vehicles two wheelers were mentioned but scooter and motor cycle had number plate of different dimensions. Stress was also laid that Form II did not even form part of the evaluation of the commercial bid criteria for award of contract and that it would have no bearing on the final award of contract since it has been agreed by all the qualified bidders before opening of the financial bids. Civil Writ Petition No.18725 of 2011 -9- *** 8. Replication was also filed to the written statement wherein it was alleged that since there was violation of Clause 2.9.2, the respondent no.3 could not have been declared as L-1 and that he has unfairly been given a chance to reconcile the price and had the petitioner been given similar opportunity it could have also reduced the price. 9. Learned counsel for the petitioner has stressed vehemently since there was a violation of Clause 2.9.2 and as per Clause 2.8.1, the rates to be offered in the financial bid shall be without any assumption and without any condition, qualification or reservation or any variation, both in respect of form and content. Similarly under Clause 2.18.1 price given in the bid form was not to be revealed and if there was a price change due to technical clarification then as per Clause 2.18.2 in such eventuality revised financial bid from all the qualified bidders in separate sealed cover was to be accepted and no modification was permissible as per Clause 2.19.1. The correction of errors was permissible under Clause 2.27.1 but this was only for arithmetic errors and where there was a discrepancy between the amount in figures and in words, the amount in words will govern. The counsel for petitioner also stressed that since there was an admission in the written statement itself that there were deviations in the bid Form I and Form II, therefore, in view of the above Clauses, respondent no.3 could not have been declared as L-1 and his bid was liable to be rejected straightway. In support Civil Writ Petition No.18725 of 2011 -10- *** of his submissions, the petitioner relied upon Ramana Dayaram Shetty Vs. International Airport Authority of India and others (1979) 3 Supreme Court Cases 489, Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation and others (2000) 5 Supreme Court Cases 287, W.B. State Electricity Board Vs. Patel Engineering Co. Ltd. and others (2001) 2 Supreme Court Cases 451, B.S.N. Joshi and sons Ltd. Vs. Nair Coal Services Ltd. and others (2006) 11 Supreme Court Cases 548, Reliance Energy Ltd. and another Vs. Maharashtra State Road Development Corporation Ltd. and others (2007) 8 Supreme Court Cases 1, Siemens Public Communication Networks Private Limited and another Vs. Union of India and others (2008) 16 Supreme Court Cases 215 and Larsen and Toubro Limited and another Vs. Union of India and others (2011) 5 Supreme Court Cases 430. The stress on the change of rules after game had begun and its impermissibility was sought to be driven home by placing reliance upon the judgments quoted above and by arguing that once the stage of financial bids had been reached then if there was any essential condition in the terms of the tender, the same had to be adhered to. It was argued that sum total of the Form II rates could not be more than the rate quoted in Form I for complete set of number plates in different categories of vehicles, therefore, once there was such a difference, the State had no option but to Civil Writ Petition No.18725 of 2011 -11- *** reject the bid of respondent no.3. 10. The State in defence argued that Clause 2.1 was the evaluation process and each bidder had to qualify each stage according to the tender condition to be eligible for evaluation in the next stage and there was a right to seek clarification if required from the bidder while evaluating their bids. It is also argued that a preliminary examination of the bids and determination of responsiveness under Clause 2.26.2 had to be undertaken by the Government and if a bid was not substantially responsive, it was liable to be rejected. Under Clause 2.30, the decision to award contract by the High Power Purchase Committee was to be determined by a substantially responsive bidder to the bid document and having been found eligible for opening of the bid price and criteria for evaluation of the offer received was to be on the basis of lowest sum total of the weighted rate received in the financial bid form calculated by multiplying the weight attached + base price per vehicle and the sum total in Column No.6 was to be considered and stress was laid on the calculation sheet Annexure R-1 wherein a table has been prepared by taking into consideration the price offered by the bidders which has been multiplied with weight attached and the total of the said has been correspondingly matched to declare respondent no.3 as the successful bidder. 11. After hearing rival submissions, we are of the opinion that the present writ petition is liable to be dismissed in view of Civil Writ Petition No.18725 of 2011 -12- *** the peculiar facts and circumstances of the case. The present tender process had been long delayed though the Government of India had issued notification dated 16.10.2001 to introduce the High Security Registration Plates in India for all types of motor vehicles in the States. The Hon'ble Apex Court in Civil Writ Petition (Civil ) No.510 of 2005 vide order dated 13.10.2011 has noticed that the States are not implementing the said scheme which had been introduced keeping in view the safety and security of the citizens and detailed order has been passed on 30.8.2011 whereby the defaulting States have been classified into different categories. Last category was of the States which had been persisting defaulters and had not taken any effective steps to comply with the direction of the Apex Court. Accordingly, the Secretary of Transport and the Commissioner, State Transport Authority of the State of Haryana had been issued notices as why for 7 long years, the State of Haryana had taken no steps to comply with the statutory scheme under the provisions of Rule 50 of the Central Motor Vehicles Rules,1989. In pursuance of the said notices, it was held that the State officials have been guilty of willful disobedience and non compliance of the orders of this Court and exemplary costs had been imposed on them and the State Government had been directed to positively comply with the order and implement the scheme within 8 weeks from the date of order i.e. 13.10.2011. Thus, it would be clear that the State of Haryana was Civil Writ Petition No.18725 of 2011 -13- *** implementing the direction of the Hon'ble Supreme Court and had invited the tenders in pursuance of the said direction. 12. A perusal of the tender document would go to show that the annual registration of all classes of new motor vehicles in the State of Haryana had come to a figure of 4.68 lacs (based on approximation) for the year 2009-10 as per Annexure XV of the bid document as per statistical data. As per terms and conditions in Section 4, the said contract is to be for a period of 10 years. As per the tender notice three sets of plates have to be supplied which include one sticker which is to be affixed on the wind screen and which is not applicable to the two wheelers. The said plates were to be accompanied with snap locks and in Column No.3, the weight was attached, which was based on the number of vehicles which were being registered. Accordingly, the maximum weight i.e. 63.95 has been given to scooters, motor- cycles and mopeds as their grand total sale during the year 2009-10 was 2,99,458, correspondingly the weight attached to the three wheelers is only 2.22 as only 10,393 three wheelers were registered in the year 2009-10 whereas weight attached to Light Motor Vehicle/Passenger Cars is 23.57 as 1,10,356 cars were registered. The weight attached to medium commercial vehicles and heavy commercial vehicles was 10.26 as 48,048 vehicles were registered. This data would be clear from Annexure XV attached with the bid document. The modified financial Form I and II are reproduced below:- Civil Writ Petition No.18725 of 2011 -14- *** ANNEXURE -Y SECTION VI FINANCIAL BID FORM -I HIGH SECURITY REGISTRATION PLATE SCHEME 1. NAME OF THE FIRM 2. ADDRESS 3. TENDERED PRICE Sr. No. Item Weight attached Unit Base Price per vehicle in figure in words Value of tax/duty 1 @___% Value of tax/duty 2 @___% Value of tax/duty 3 @___% Value of tax/duty 4 @___% Price Inclusive of taxes duties (5+6+7+ 8+9) Total (3X10) Identify the applic- able tax/duty ______ Identify the applic- able tax/duty ______ Identify the applic- able tax/duty ______ Identify the applic- able tax/duty ______ 1 2 3 4 5 6 7 8 9 10 11 1. Complete set of Registration plates inclusive of snap lock and fixing for 2 wheelers- scooters, motor cycles, mopeds. 63.95 Set 2. Complete set of Registration plates inclusive of snap lock, 3rd registration plate and fixing for 3 wheelers and invalid carriage. 2.22 Set 3. Complete set of Registration plates inclusive of snap lock, 3rd registration plate and fixing for light Motor vehicles/Passengers cars. 23.57 Set 4. Complete set of Registration plates inclusive of snap lock, 3rd registration plate and fixing for Medium Vehicles/Trailer/ combination/others. 10.26 Set 5. Total No. of Vehicles (in ratios) 100 Sum Total amount. Note: 1. The above prices are chargeable from vehicles owners and are for providing and fixing High Security Plate on the vehicles. Civil Writ Petition No.18725 of 2011 -15- *** 2. The base prices quoted in column 5 above shall be exclusive of all taxes, duties and levies. 3. The bidder will show the tax/duties in column No.6 to 9 one tax/duty in a column each, identifying each and every tax/duty in the space provided in these columns. The columns may be increased depending upon the number of taxes duties. 4. Weights attached have been arrived at by the department on the basis of approximate percentage of types of vehicles registered in the State during 2009-10. AUTHORISED SIGNATORY. ANNEXURE -Z FINANCIAL BID FORM-II HIGH SECURITY REGISTRATION PLATE SCHEME PROVISION FOR SUPPLY OF INDIVIDUAL ITEMS AS REPLACEMENT. 1. NAME OF THE BIDDER 2. ADDRESS 3. BID PRICE Civil Writ Petition No.18725 of 2011 -16- *** Sr.No . Item Unit Base price per unit for providing & affixing the High Security Registration Plate: In Figures In words. 1. 2 3 4 1. Registration Plate size 500 X 120 mm Pc 2. Registration Plate size 340 X 200 mm Pc 3. Registration Plate size 200 X 100 mm Pc 4. Registration Plate size 285 X 45 mm Pc 5. 3rd Registration Plate sticker inclusive of printing Pc 6. Snap Locks Pair Note: 1. The bidder should quote separate rate for each size of plate to cater replacement market, considering that a premium of 20% on the above rates can be charged from the vehicle owner. 2. The above prices are chargeable from vehicle owners and are for providing and affixing High Security Registration Plate on the vehicles. The bidder should quote separate rate for each size of plate/snap lock to cater to the market for piece meal requirement of individual registration plates as different from the requirement of complete sets, considering that a premium of 20% on the above rates can be charged Civil Writ Petition No.18725 of 2011 -17- *** from vehicle owner for piece meal requirement. 3. The base price in column 4 shall be exclusive of all taxes, duties and levies. 13. The Form I and Form II filled by the petitioner and respondent no.3 are reproduced below:- Form-I Respondent No.3 Petitioner Complete set of plates JKSDD HSLP (JV) Utsav Safety Systems 2 Wheeler 135.69 229.50 3 Wheeler 180.48 256.50 LMV/Car 431.51 414.00 M/HCV 298.53 436.50 Form -II Respondent No.3 Petitioner Complete set of plates JKSDD HSLP (JV) Utsav Safety Systems Plate 500 X