Case: Shrishri Infrastructure Pvt. Ltd Vs. The State of Maharashtra and Ors

3. The petitioner is a private limited company duly registered under the provisions of the Companies Act, 2013. The petitioner is registered as a contractor with the Zilla Parishad, Jalgaon. The respondent No. 4 published a Public E-tender Notice bearing No.05/2020-21, on 19th November, 2020, inviting online percentage rate tenders from contractors registered with the Zilla Parishad for carrying out construction work of eight Primary Health Centers at various places within the Jalgaon district. As per the tender conditions, the bidders were required to fill up the online tender between 20.11.2020 and 14.12.2020 till 18.00 hours. The technical bid was scheduled to be opened on 16.12.2020. Clause 6 of the tender notice mandated five days gap between the opening of the technical and financial bids.4. It is submitted by the petitioner that on 15.12.2020, the respondent No. 4 issued a Brief Tender Notice (BTN for short) extending the time line for submission of the bids to 17.12.2020 till 18.00 hours. On 17.12.2020 the petitioner submitted the bid for item No. 3 of the tender document i.e. construction of Primary Health Center, Main Building at Lohara, Taluka-Pachora, District- Jalgaon and also deposited a sum of Rs. 3,90,500/- towards the Tender Fee and Earnest Money Deposit. The submission of the said bid online, was confirmed and tender I.D. number was also assigned to the petitioners tender. In the Public E Tender Notice, according to the petitioner, the estimated cost of the work of construction of Primary Health Center, Main Building at Lohara was shown to be Rs. 3,54,78,559/-. The petitioner company quoted a sum of Rs. 3,05,14,387/- which was 13% less than the sum stated in the Public E Tender Notice. As per the chart published, the lowest bidder i.e. respondent No.5 Firm had quoted a sum of Rs. 3,75,25,681.42/- which was higher by Rs. 70,11,294/- as compared to the sum quoted by the petitioner company. As per the BTN, though the technical bids were to be opened on 21.12.2020, these bids were not opened on that day. In fact, these bids were opened on 29.1.2021, and the petitioner was held ineligible for the opening of its financial bid for the reason that the petitioner had not submitted the requisite declaration on his letter-head in the P.D.F. format.5. It is the case of the petitioner that as per clause No. 6 of the tender document, there should have been five days gap between the openings of the technical and financial bids. However, the same was not followed and both the technical and the financial bids were opened on the same day, i. e. on 29.01.2021. Immediately thereafter, on 1.2.2021 the petitioner approached the respondent Nos. 2 to 4 and filed an application, praying to accept the declaration and hold the petitioner company eligible to participate in the financial bid. Again, on 27.2.2021, the petitioner filed an application and repeated his request to accept the declaration and to hold him eligible for the financial bid. Thereafter, the petitioner also issued legal notice to respondent Nos. 2 to 4 calling upon them to accept the declaration and to hold the petitioner eligible for the financial bid. However, nothing was communicated to it.6. After the affidavit-in-reply was filed on behalf of respondent Nos.2 to 4 on 1.5.2021, the petitioner filed a rejoinder affidavit on 3.5.2021 wherein, it was sought to be stated that even if it was presumed that the technical bid was opened on 21.12.2020 and it was held that the petitioner company was not eligible for financial bid on the ground of not submitting the declaration, the said fact was not communicated to it nor the fact of opening of technical bid was uploaded. It was uploaded after opening of the financial bid i.e. on 29.1.2021. The technical bid was not opened in presence of its representative. There was no occasion or cause of action for the petitioner to fill up the lacuna before opening of financial bid. According to the petitioner, the reason for not mentioning the date on the declaration was that the form provided by the respondent authority itself did not provide the field to state the date. The petitioner claims that due to internet/server problem of the concerned Website/Portal, he could not submit/upload the tender, however, on the same day, the petitioner had paid the requisite Earnest Money Deposit and Tender Fee. It is submitted by the petitioner company that on 14/15th December 2020, it had made an application to the respondent authorities and pointed out the difficulties and had requested to extend time to submit/upload the declaration and in view of its request, the respondent No. 4 issued the BTN on 15.12.2020 and extended the timeline to 17.12.2020. The petitioner by his second rejoinder has alleged that the respondent Nos. 2 to 4 are moulding the tender conditions to favour the respondent No. 5 Firm.

Reasoning:
15. In the instant case, the online percentage rate tenders were invited for carrying out construction work of eight primary health centers at various places within the Jalgaon district. The bidders were required to fill up the online tender between 20.11.2020 to 14.12.2020 till 18:00 hours. The technical bid was scheduled to be opened on 16.12.2020. Clause 6 of the tender notice mandated five days gap between the opening of the technical and financial bids. In the petition, initially, petitioner company did not disclose the fact that on its request the last date for submitting the online tender was extended. However, after filing the affidavit in reply by respondent Nos. 2 to 4, the petitioner company in its rejoinder affidavit conceded the fact that it had made an application to the respondent authorities for extension of time to submit/upload the tender document and accordingly, time was extended. As the time was extended, the technical bids were opened on 21.12.2020. It is admitted position that the financial bids were opened on 29.01.2021. There is therefore, no merit in the grievance of the petitioner company that there was no gap as mandated by Clause 6 of the tender notice, between the opening of the technical and financial bids. It is pertinent to note that initially the last date for filling the tender was 14.12.2020, however, on the request of the petitioner company, the same was extended as the petitioner could not upload the declaration, and even after extension of time it failed to upload the same. The petitioner company did not make any grievance to suggest that because of slowness of web portal it could not upload the declaration till opening of the financial bids. On a close scrutiny of the conditions contained in the tender notice, it is evident that all these conditions were to be complied with in letter and spirit and non-compliance of any of these conditions would lead to non-acceptance of the tender submitted by any tenderer. Admittedly, the petitioner had not submitted the declaration as required under the said tender conditions. It is trite that the statement of declaration and signature of the applicant assures that all the data is 100% true to the applicants knowledge and this prevents confusion, misconception and fraud in the process.16. It is quite clear that the tender that was submitted by the petitioner company did not fulfill the requirements of the tender notice, in that the declaration which was mandatory and therefore, an integral part of the tender process, was not submitted within the time stipulated in the said notice or even thereafter.17. The respondent authorities rightly held that the petitioner company did not comply with this condition, namely, submitting/uploading of the declaration within the specified period. It is pertinent that on the request of the petitioner company the last date for filing the tender was extended by 3 days as the petitioner company could not upload the declaration. However during the extended period and thereafter also the petitioner company did not submit/upload the declaration nor made any grievance till opening of the financial bid. The application given by the petitioner to submit declaration is after the opening of the financial bids. The respondent authorities did not consider its claim for financial bid. The said decision cannot be said to be in any manner arbitrary, mala-fide or unreasonable. Despite being aware of the said stipulation, the petitioner company did not submit the required document. The terms and conditions of the tender are required to be adhered to strictly. Contractual terms which define conditions of eligibility must be scrupulously enforced. A relaxation of a contractual term in the case of a particular bidder is liable to render the entire process arbitrary. In the present case, the tender condition of submitting the declaration is clear in its stipulation and therefore, the respondent authorities have rightly held the petitioner company ineligible for opening of its financial bid as it did not meet the conditions of eligibility.19. The precise chronology of events as amply described and pointed out above, however, does not smack of any mala-fides, arbitrariness or unreasonableness in the decision making process adopted by the respondent authorities. On the contrary, the said process clearly appears to be quite transparent at all its stages from the beginning to the end.It appears to be petitioners own perception. In this respect, it is pertinent that as the petitioner company was held ineligible for the opening of its financial bid there was no occasion to open its financial bid. Apart from this, being declared the lowest bidder does not bestow a right upon any entity to the award of the contract. All that participating bidders are entitled to is a fair, equal and nondiscriminatory treatment.21. The claim of the petitioner company in respect of slowness of the web portal is however, denied by the respondents and according to it rightly. Other tenderers successfully filled in the tender. We are therefore, not inclined to upset the process which would only cause further delay and would increase the burden on the exchequer of the Zilla Parishad.