[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION W.P.NO.1602 OF 2006 VIS SIM AS ..Petitioner Vs. Oil And Natural Gas Corporation ..Respondents ... Mr.V.A.Thorat Senior Advocate with Ms.M.D’Souza and Mr.S.B.Shetye for Petitioner Mr.Ravi Kadam, Advocate General with Mr.M.Dhru for Respondent No.1 Mr.V.R.Dhond i/b Prakash Punjabi and Co. for Respondent No.3 ... CORAM: F.I.REBELLO AND CORAM: F.I.REBELLO AND CORAM: F.I.REBELLO AND SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. DATE : AUGUST 7,2006 DATE : AUGUST 7,2006 DATE : AUGUST 7,2006 P.C. P.C. P.C. 1. The petitioners are one of the bidders for a Global Bid called by Respondent No.1 for installation of Vessel and Air Traffic Management System. In terms of the bid documents and in terms of the time extended, the last date for submitting the bids was 9.1.2006. The bids had to be in two envelops. The first envelop containing the technical specifications and the second envelop contained the price bid. In the instant case, after the technical bid was opened, the price bid was opened on 19.5.2006. Petitioners [-2-] price bid was not considered as according to Respondent No.1, the Petitioners failed to comply with an essential condition of the tender, namely producing the Solvency Certificate as required. Petitioners came to be aware of the same on 20.5.2006. Petition was filed on 9.6.2006. A Letter of Intent has already been issued in favour of Respondent No.3. 2. On behalf of Petitioners, it is sought to be contended that Solvency Certificate as required, was not produced, as their bankers were not agreeable to give them in the format prescribed by Respondent No.1. The Respondent No.1 was thereafter in communication with the Petitioners. For that purpose, a reference is made to a letter of 17.3.2006. It is then submitted that in fact the document of solvency was produced on 10.4.2006 i.e. before the price bid was opened. Respondent No.1, it is submitted, is a public body. The bid of the Petitioners is much lower than that of Respondent No.3. The object of the Solvency is merely to see that the Petitioner was Solvent which otherwise was supported by various documents on record. [-3-] . Reply has been filed on behalf of Respondent No.1. It is pointed out then that in terms of the tender documents, more particularly in reference to Appendix B-8, which forms part of tender document, each builder is required to submit a Solvency Certificate as per Appendix B-8. The Petitioners informed the Respondents by letter of 1.12.2005 that their bankers had declined to issue a Solvency Certificate as specified in the tender document in Exhibit-B-8. Petitioner also enclosed draft letter proposed to be issued by the Banker i.e. Nordea Bank and enquired of Respondent No.1 as to whether format would be acceptable. It is also set out that by the said letter, they also intimated that they were in the process of making enquiry from other Banks regarding issue of Solvency Certificates, which would be submitted latest by 10.1.2006. It is therefore, submitted that petitioners were well aware that Solvency Certificate in the format had to be furnished as a mandatory requirement. It is also pointed out that in view of the representation of the petitioners, the bid opening date was extended from 23.12.2005 to 9.1.2006. On 1.12.2005, a pre-bid meeting was held of all the bidders. The Respondents issued clarification on 9.12.2005 in respect of the [-4-] clarifications sought for. It was set out therein that the parties were required to submit Solvency Certificate, indicating the amount to which they were solvent along with bid documents. The Petitioners were also informed, that the format of Solvency Certificate which was shown by the petitioners even prior to pre-bid meeting, did not specify that they are Solvent and as such were informed that the said format of Solvency Certificate was not acceptable. The petitioners, it is set out, while submitting the bid in terms of Appendix-A-7 relating to evaluation matrix while dealing with clause B-5.2 wrongly stated that they have complied with the requirements of the tender documents. Respondents by their letter dated 17.3.2006 informed the petitioners that the letter of recommendation dated 5.1.2006 issued by Nordea Bank is not in line with the tender documents and therefore, not acceptable to the respondents. By letter dated 30.3.2006, petitioners have admitted and confirmed that they have not been able to submit a Solvency Certificate as required as per the tender documents and were under the process of submitting one more Solvency Certificate from another bank. The Techno- commercial bids were opened on 9.1.2006. The tender document required [-5-] bidder to submit Solvency Certificate. The petitioners failed to produce the Solvency Certificate and consequently, when the price bids were scheduled to be opened on 19.2.2006, the petitioners were excluded from the same. The Solvency Certificate was produced by the petitioners on 10.4.2006 and the same could not be considered as it amounts to modification of the bid and contrary to the terms and conditions of the tender documents. By letter dated 19.4.2006 the petitioners along with other tenderers were requested to extend the period of bid but the same was required to be kept open till the Letter of Intent was issued. On the process of bid being opened on 19.5.2006, respondent No.3 was declared to be successful and notification award was issued on 16.6.2006. 3. Respondent No.3 has also filed their reply. After the Letter of Intent has been issued. Respondent No.3 has initiated the steps for execution of the contract. They have finalised the performance Bank Guarantee of 10% of the contract value. They have finalised the list of sub-contractors. Any change in NOA would entail HITT being responsible to sub-contractors to claim for work carried out by [-6-] them, pursuant to award of sub-contract by HITT. They have certified that four Engineers for various safety related courses so as to enable them to get passes and applied for import licence with the DG Foreign Trade as also signed Teaming Agreement for HITT and sub-contractor and has taken steps as set out in para 6 of the reply. There has also been, it is submitted, delay on the part of the petitioners in approaching this Court and consequent thereto, the petition ought to be dismissed. 4. We have heard counsel for the Petitioners and Respondents. In our opinion, the requirement of Solvency Certificate was an essential condition. The petitioners were fully aware of the same, considering the clarification at the pre-bid meeting, when it was made clear that submission of Solvency Certificate was essential and a bid without proper Solvency Certificate as per the format could be rejected outright. By the communication of 17.3.2006, the petitioners were once again informed that though the petitioners had set out that compliance of the Clause No.B-5.2 was made, they had noted that the Letter of Recommendation given from the Bank, could not be accepted. Petitioners were, therefore, called upon [-7-] to submit the copy of the Solvency Certificate otherwise the bid would be treated as unsolicited. . It is, therefore, clear that the petitioners were not in a position to comply with the essential condition of the bid namely production of Solvency Certificate in the format which was sought for by the Respondent No.1. That being the case, we cannot say that action of the Respondent No.1 is arbitrary. Respondent No.3 pursuant to the issuance of Letter of Intent has already taken steps. This would therefore, on the facts of the case, be not a fit case for this Court to exercise its extra ordinary jurisdiction. In the light of that, petition dismissed. In the circumstances, there shall be no order as to costs. 5. The learned counsel for the petitioners seeks continuation of the interim order. In our opinion, this is not a fit case where the order should be continued, hence, application is rejected. [ F.I.REBELLO, J.] [-8-] [ SMT.V.K.TAHILRAMANI,J.]