IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.12.2011 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN W.P.No.27019 of 2011 And M.P.Nos.1 to 3 of 2011 M/s.Daishan Haizhou Shipyard Company Limited, Represented by it's agent Mr.Kuldeep Kumar Saxena ... Petitioner Vs 1.Poompuhar Shipping Corporation Limited, Represented by it's Chairman cum Managing Director. 692, Anna Salai, 4th Floor, Nandanam, Chennai - 35 2.General Manager (Technical), Poompuhar Shipping Corporation Limited. 692, Anna Salai, 4th Floor, Nandanam, Chennai - 35 ... Respondents Prayer: Writ petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus or any other appropriate writ, order or direction in the nature of writ directing the respondents herein to open the price bid of the petitioner Company and evaluate the price bid along with the other short listed tenders in respect to the tender issued by the respondents for V Special Survey/ Dry Docking and Repairing of 'M.V.TAMIL KAMARAJ', for the purpose of awarding the contract. For Petitioner : M/s.G.Arul Murugan For Respondents: Mr.V.V.Giridhar ORDER The petitioner has come before this Court seeking Mandamus directing the respondents to open their finance bid (price bid) and evaluate their price bid along with the other short listed tenders. https://hcservices.ecourts.gov.in/hcservices/ 2.The facts of the case are as follows: The respondent Corporation invited global tenders for dry docking and repairs and also for procurement of Marine paints in connection with V Special Survey/ Dry Docking and Repairing of 'M.V.TAMIL KAMARAJ'. The tender notification was issued on 09.10.2011. The petitioner submitted their bid on 02.11.2011 along with the required documents. However, the petitioner was disqualified in the technical bid on certain reasons. As the respondent Corporation is trying to open and finalize the financial bid without considering petitioner's bid, the petitioner is before this Court seeking mandamus. 3.Mr.G.Arul Murugan, learned counsel for the petitioner submitted that the petitioner Company is having much experience for dry docking and for repairs and infact it participated in the earlier tenders floated by the respondent Corporation. Without considering the petitioner's bid intoto, the respondent Corporation is trying to award the contract to some other interested parties rejecting their bid on un-realistic grounds. He pointed out that along with the technical bid, they annexed profile of the company, audited balance- sheet, experience certificate and all other technical requirements. He referred the Annexure 3 of Tender document, viz., the Check list to show that the petitioner complied with all formalities by producing the required documents. 4.Even if certain documents are not filed by inadvertence, the petitioner can be permitted to file those documents and in that regard he relied upon the judgment of the Hon'ble Supreme Court reported in (1990) 2 SCC 488 in the case of G.J.Fernandez versus State of Karnataka and others, (2006) 11 SCC 548 in the case of B.S.N.Joshi & Sons Ltd., versus Nair Coal Services Ltd. and others, and sought for direction as prayed for. 5.Mr.V.V.Giridhar, learned counsel for the respondents submitted the following contention: i)On evaluation, it was found that they did not produce the required documents as per the tender conditions, therefore, their technical bid was not considered. ii)There are variations in the tender documents submitted by the petitioner Company differing from official format. 6.The learned counsel specifically pointed out from the official format of the tender document and the tender document filed by the petitioner that it varied on various clauses. If the varied format is accepted, it would result in financial loss to the respondent Corporation. He relied upon the Judgment of the Hon'ble Supreme Court in Glodyne Technoserve Limited versus State of Madhya Pradesh and others reported in (2011) 5 SCC 103, in Air India Ltd. Versus Cochin International Airport Ltd. reported in 2000 (1) CTC 594 , and the judgment of this Court in ION Exchange Waterleau Ltd. having its https://hcservices.ecourts.gov.in/hcservices/ registered office at Tiecicon House, Dr.E.Moses Road, Mahalaxmi, Mumbai versus The Commissioner, Madurai Municipal Corporations, Madurai-625 002 reported in 2008 (3) CTC 675 and submitted non- compliance of eligibility criteria would result in rejection only. 7.Heard the parties and perused the record. 8.Eligibility criteria is given in clause 1 of the tender document, namely, Bid qualification requirement which is extracted as follows: "The following are the minimum requirement for qualifying the yards technically. a)Dry dock facilities for accommodating the vessel of 60000 DWT or more b)One (1) No. of Graving yard / Dry Dock or Floating Dock c)Two (2) numbers of lay-up berths and each berth should have minimm 235M length and 7M draft. d)Experience in handling minimum 5 Nos. similar vessels in the past 2 year ending March, 2011. e)The lay up-berth allotment and commencement of repair to the vessel on arrival at the yard space. f)Minimum 2 Nos cranes (fitted on wharf and/ or floating) of capacity 25MT each g)The space/yard slot vacant by December 2011 – March 2012." 9.The documents which are required to be submitted for technical bid is given in clause 2.3 of the tender document which reads as follows: "2.3 Technical Bid (Part I): Documents to be submitted for Technical Bid. a)Profile of the company. b)Audited Balance sheet / Annual Report for the last three years ending 31.03.2011. If the Tenderer is not in a position to furnish the above due to Tenderer country's rules/regulations at least a statement to this effect from the Tenderer duly signed. c)Experience: Details of similar ships (minimum 5 ships) for which Dry Dock repair works carried out with in a period of last 2 years (Ending March 2011) indicating DWT. Quantum of steel renewals carried out by the yard for the above ships. https://hcservices.ecourts.gov.in/hcservices/ Period of completion of Dry Dock repairs. d)Dry Docking/ Floating Dry Dock capacity. e)Availability of the repair berths/Dry dock space during December 2011 – March 2012 f)Maximum steel renewal capacity per day. g)Tender document technical Bid (Part-I) shall be duly signed & stamped in all pages by tenderer. h)Check list given in annexure – III of Technical Bid to be duly signed and stamped in all pages by Tenderer. i)Bar Chart mentioning all major works. j)The Temperature and weather conditions during December 2011 to March 2012." The above clauses would make it very clear that the bidder should produce certain documents for consideration of the tender and they are essential. Without those documents, the experience and the capability of the bidder cannot be assessed. One such document which is required to be filed is profile of the company. According to the petitioner, as per check list, the petitioner already attached the profile of the Company along with tender document. Whereas, according to the respondent Corporation, the profile of the petitioner Company was not annexed with the petitioner's bid which has been stated in para 20 of the counter affidavit and the same has been extracted as follows: "20.I submit that the petitioner had failed to provide the basic details and there also failed to follow the terms and conditions of the tender. Thus he was not qualified for participating further in the tender. The Respondent / Petitioner has not given the basic details which includes the Profile of the company, Dry docking/floating capacity, Maximum steel renewal capacity per day by the yard and Bar chart indicating the no. of days required to complete the scope of major works. As per clause 1 of the bid qualification requirement, it was specifically mentioned that in the event of the tenderer not having the facilities as prescribed under the bid qualification requirement, that tenderer is not technically qualified to participate in the tender as it is the basic requirement for participation in the tender. It was also mentioned that on the basis of evaluation of the part I of the tender, technically qualified bids alone will become eligible for Price bid opening." The original file was summoned and it is seen that no such document is available with the petitioner's bid. However, the check list of https://hcservices.ecourts.gov.in/hcservices/ the petitioner's tender would make it clear that it attached the said document along with the tender. 10.As per clause 2.5 of the tender document, the bids would be opened in the respondent Corporation on 09.11.2011 at 15.00 hours IST in the presence of bidders or their authorized representatives. The said clause makes it very clear that even if none of the bidders are present, the bids would be opened on the specified day. It is admitted by the petitioner that their representatives were not present on that day. The purpose of the presence of the authorized representative/ bidder is to make sure that the bids of the respective parties are considered properly. However, in this case, neither the petitioner nor their representative was present at the time of opening of the bid. In those circumstances, when the respondent Corporation vehemently contends that the profile of the document was not annexed with the petitioner's bid, it has to be accepted. If the petitioner was not present at the time of opening the bid, it is their own invitation. If the petitioner wanted to take part in the bid process seriously, it would have ensured that their representatives were present at that time of opening the bid. In any event it is a disputed question of fact and this Court cannot venture into the roving enquiry under Article 226 especially when there is a fault on the part of the petitioner. 11.Mr.G.Arul Murugan, learned counsel for the petitioner argued that the petitioner already took part in the earlier tenders floated by the respondent Corporation by annexing the profile, and this Court is also of the impression that petitioner Company would not have given its bid without the required basic documents. However, from records produced, it is very clear that the profile of the petitioner company is not available with the petitioner's bid. In that event, the respondent Corporation cannot consider the petitioner's bid. The Hon'ble Apex Court in Laxmi Sales Corporation Vs. M/s.Bolangir Trading Co. and others reported in AIR 2005 SC 1962 held that production of supporting documents in compliance of terms of the tender are mandatory requirement. In view of the above facts, it is not possible for this Court to issue direction as prayed for. 12.Though the learned counsel for the petitioner submitted the required document can be got subsequently from the petitioner, it has been held by the Hon'ble Supreme Court in its recent judgment in Glodyne Technoserve Limited Versus State of Madhya Pradesh and others reported in (2011) 5 SCC 103 that it is only for the authority to accept the explanation for not having filed the required document. Paragraph 46 and 47 in the said judgment reads as follows: "46.The above provision obliges a tenderer to produce along with the bid document a copy of the quality certificate which is valid and active on the date of submission of the bid and it does not https://hcservices.ecourts.gov.in/hcservices/ enable a bidder to withhold the copy of such quality certificate. Where the quality certificate will be expiring shortly and is due for renewal, the bidder is also obliged to produce the renewed certificate at the time of signing of the contract. The appellant claimed to have a valid and active ISO 9001:2000 certificate at the time of submission of the bid, bud did not produce a copy of the said certificate along with the bid document. 47.The submissions made on behalf of the appellant proceeds on the basis that it was entitled, almost as a matter of right, not to submit the documents required to be submitted along with the bid documents on the supposition that, even if such documents were valid and active, they could be submitted at the time of signing of the memorandum of understanding. The appellant had a valid and active ISO 9001:2000 certification which it did not submit along with the bid documents, may be due to inadvertence, but whether such explanation was to be accepted or not lay within the discretionary powers of the authority inviting the bids. The decision taken to reject the technical bid of the appellant cannot be said to be perverse or arbitrary. We need not refer to the decisions cited by the learned Attorney General or the appellant in this regard, as the principles enunciated therein are well established." [Emphasis Supplied] Therefore, there cannot be any direction to the respondent Corporation to accept the profile of the petitioner's Company and to consider the petitioner's bid. Even as per the judgment of the Hon'ble Supreme Court produced by the learned counsel for the petitioner in B.S.N.Joshi & Sons Ltd., versus Nair Coal Services Ltd. and others reported in (2006) 11 SCC 548, it has been stated in paragraph 69 as follows: "69.While saying so, however, we would like to observe that having regard to the fact that huge public money is involved, a public sector undertaking in view of the principles of good corporate governance may accept such tenders which are economically beneficial to it. It may be true that essential terms of the contract were required to be fulfilled. If a party failed and/or neglected to comply with the requisite conditions which were essential for consideration of its case by the employer, it cannot supply the details at a https://hcservices.ecourts.gov.in/hcservices/ later stage or quote a lower rate upon ascertaining the rate quoted by others. Whether an employer has power or relaxation must be found out not only from the terms of the notice inviting tender but also the general practice prevailing in India. For the said purpose, the court may consider the practice prevailing in the past. Keeping in view a particular object, if in effect and substance it is found that the offer made by one of the bidders substantially satisfies the requirements of the conditions of notice inviting tender, the employer may be said to have a general power or relaxation in that behalf. Once such a power is exercised, one of the questions which would arise for consideration by the superior courts would be as to whether exercise of such power was fair, reasonable and bona fide. If the answer thereto is not in the negative, save and except for sufficient and cogent reasons, the writ courts would be well advised to refrain themselves in exercise of their discretionary jurisdiction." [Emphasis Supplied] From the above, it is clear that if a party failed and neglected to comply with the requisite conditions, it cannot supply the details at a later stage. In this case also, the petitioner cannot give the required document belatedly and want the respondents to consider their claim based on that. 13.That apart, as rightly pointed out by respondent, the petitioner failed to follow the approved format of the tender document and submitted their bids in varied form with deviations. The petitioner attempted to change the conditions like penalty, incentive, payment terms etc. according to their convenience. In view of incorporation of varied terms in the bid submitted by the petitioner, the respondent rightly rejected the bid. 14.For the reasons stated above, the prayer sought for in the writ petition cannot be given. Accordingly, this writ petition is dismissed. No costs. Consequently, the connected miscellaneous petitions are also closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ pri To 1.The Chairman cum Managing Director. Poompuhar Shipping Corporation Limited, 692, Anna Salai, 4th Floor, Nandanam, Chennai - 35 2.The General Manager (Technical), Poompuhar Shipping Corporation Limited. 692, Anna Salai, 4th Floor, Nandanam, Chennai - 35 1 CC to Mr.V.V.Giridhar, Advocate, SR.77717 1 CC to Mr.G.Arulmurugan, Advocate, SR.77915 W.P.No.27019 of 2011 And M.P.Nos.1 to 3 of 2011 GV(CO) SRA(22/12/2011) https://hcservices.ecourts.gov.in/hcservices/