Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
nd
% Judgment Reserved on: 2 March, 2015
th
Judgment Delivered on: 26 March, 2015
+ WP(C) 1344/2015 and CM Nos. 2358/2015 & 2907/2015
M/S OPAQUE INFRASTRUCTURE PVT LTD ...Petitioner
versus
UNION OF INDIA & ANR. ....Respondents
Advocates who appeared in this case:
For the Appellants: Mr C. Mukund and Mr Abilash Attri, Advocates
For the Respondent: Mr Sanjeev Narula and Mr Ravindra Gill,
Advocates for R-1
Mr M.M.Kalra with Mr Kunal Kalra, Adv for R-2.
CORAM:-
HON’BLE MR JUSTICE BADAR DURREZ AHMED
HON’BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J.
1. The petitioner has filed the present petition seeking a writ in the
nature of mandamus directing the respondent to accept the National
Small Industries Corporation (NSIC) certificate submitted by the
Petitioner in furtherance of the tender as valid and eligible for
exemption from payment of earnest money and for further directing
the respondent to open the price bid of the petitioner.
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W.P. (C)1344/2015 Page 1 of 9
2. On 29.07.2014, the respondent No.2 Indian Oil Corporation
Limited floated four separate Notices inviting e-tender (NIT) for
supply and installation of High Mast Signage work including design
manufacturing, supply, transportation, installation and Commissioning
at various retail outlets of Indian Oil Corporation. The tender was a
two bid system, i.e., the technical bid and the price bid.
3. On 04.08.2014, the petitioner submitted both the technical as
well as the price bids. The petitioner claimed itself to be a Micro,
Small and Medium Enterprise (MSME).
4. As per the petitioner, the petitioner was eligible for exemption
from submitting earnest money deposit. As per the petitioner
certificate dated 06.06.2014 issued by NSIC was submitted with the
bid document.
5. On 11.11.2014, the Indian Oil Corporation Limited is stated to
have informed the petitioner that the technical bid of the petitioner
had been rejected. It is contended that the reasons for rejection were
not communicated. However, subsequently on a demand, the reason
communicated was that the petitioner did not meet the pre-qualifying
condition of the NIT. As per the petitioner, the alleged ground of
rejection is the invalidity of the NSIC certificate.
6. The petitioner contended that since the petitioner was an
MSME, the petitioner was entitled to an exemption from payment of
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W.P. (C)1344/2015 Page 2 of 9
Earnest Money Deposit and as such the respondents could not have
rejected the petitioner’s technical bid. Impugning the rejection of the
technical bid by the respondents, the petitioner has filed the present
petition.
7. On 10.02.2015, notice in the petition was issued and it was
directed that in the meantime, the petitioner shall deposit the entire
Earnest Money Deposit as required from those bidders who do not
qualify for any exemption and the price bid of the petitioner shall be
opened and the result shall be handed over to this Court within one
week from today.
8. An application was filed by the respondent No.2 seeking
vacation of the interim order and the matter was, accordingly, taken
up on the said application and was finally heard.
9. As per the respondents, it was a tender condition that the
Earnest Money Deposit instrument had to be uploaded on the e-tender
website as a PDF document and all tenderers, who claimed exemption
from Earnest Money Deposit, should upload the valid exemption
NSIC certificate. All documents and Earnest Money Deposit
instruments were to be uploaded with the technical/commercial bid. It
is contended that the petitioner, having accepted the tender condition
and having submitted his bid without any demur or objection, cannot
be permitted to impugn the tender condition and in case, the petitioner
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W.P. (C)1344/2015 Page 3 of 9
desired to avail of any exemption in accordance with the terms of the
tender condition, then the petitioner had to strictly comply with the
same. It is contended that the petitioner applied in the MSME
category seeking exemption from deposit of EMD, the petitioner
should have ensured that the certificate submitted by the petitioner
was in conformity with the tender conditions and entitled the
petitioner for an exemption. It is submitted that the exemption from
submission of EMD was only available to the parties as per MSME
Act 2006. It is contended that as per the tender, for a certificate to be
valid, it should be valid on the date of the opening of the bid and also
cover the items tendered. It is submitted that it was a condition of the
tender that, in case, EMD was not furnished, the bid shall be rejected.
10. It is submitted that the tenders were invited for supply and
installation of High Mast Signage and as such the petitioner was
required to submit a Certificate covering the said item/type of work.
It is contended that the certificate submitted by the petitioner was
covering three items, i.e., (i) Civil Engineering Services (ii) Set
Design Building/Architectural Planning Services/Electrical
Designing/Fabrication Services and (iii) Technical consultancy
Services, which were not items covered by the subject tender, i.e.,
High Mast Signage or similar works. It is contended that other
participants, who had claimed exemption, had submitted NSIC
certificates covering the items of work covered by the subject tender.
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11. It is contended that out of 15 participants, 12 participants were
NSIC registered out of which 10 were qualified as their certificates
covered the tender work. It is submitted that since the petitioner did
not have the required certificate as per the terms of the tender, he was
not eligible for exemption from payment of Earnest Money Deposit
and further as the petitioner had not deposited the earnest money, the
bid of the petitioner had been rejected.
12. We find merit in the contention of the Respondents.
13. The subject tender is for the following work:
Sub: Supply & Installation of HMS, work includes design,
manufacturing, supply, transportation, Installation and
commissioning of the complete High Mast Signage,
display panels, including civil foundation works, earthing
& lightning protection system etc 'at Indian Oil Retail
Outlets under Northern Region comprising of Delhi State
Office, Punjab State Office, Rajasthan State Office, Uttar
Pradesh State Office-I & Uttar Pradesh State Office- II
14. Clause 15 of the tender defines similar work as under:
'Similar Works' shall mean Supply / Supply & installation
of either High Mast Signage or High Mast Lighting
system or Monopoles in Petroleum / Power / Telecom
sector or Stadium Lighting of minimum height 17 mts,
fabricated from steel plates, having hot dipped
galvanization as metal protection.
OR
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W.P. (C)1344/2015 Page 5 of 9
Supplying and installation of RVI elements viz. Monoliths
/ Totems / Fascia / Signages / Building Cladding /
Column cladding involving primarily use of (ACM)
Aluminium Composite Material
15. Clause 6 dealing with the Earnest Money Deposit lays down the
following condition for exemption from the condition of EMD as
under:
EMD Rs 6.30 Lacs
(DD/ BANKERS' CHEQUE/ BG)
Exemption from submission of EMD:
a. Parties as per MSME act, 2006 (erstwhile NSIC
registered parties). In such cases, the certificate to be
submitted by the MSME parties shall be valid on the date
of tender opening and must cover the items tendered . -
b. PSUs (Central & State) and JVs of IOCL.
(Emphasis Supplied)
16. A perusal of the tender document shows that the bidder had to
submit the Earnest Money Deposit or in the alternative if the bidder
was claiming exemption, then the certificate to be submitted by the
MSME party should be valid on the date of the tender opening and
must cover the items tendered.
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W.P. (C)1344/2015 Page 6 of 9
17. The item in the subject tender is complete High Mast Signage,
Display Panels including civil foundation works, earthing and lighting
protection system. The similar works as defined in the tender
documents means supplying and installation of either High Mast
Signage or High Mast Lighting system or monopoles in Petroleum,
Power Telecom sector or Stadium Lighting of minimum Height 17
mts fabricated from steel plates having hot dipped galvanization or
metal protection or supplying and installation of RVI elements viz
Monoliths/ totems/ Fascia/ Signage/ Building Cladding/ Column
Cladding involving primarily use of Aluminum Composite Material.
18. The certificate submitted by the petitioner issued by the NSIC
covered the following three items.
S.No. Store(s)/ Service(s)
Specification(s) Qualitative
Qualitative
Capacity
(P.M.)
1 Civil Engineering
Services
Name
. Capacity
As per
Customer's
Specification
As per
Customer's
Requirement
Rs.39 Lakh
(On
Combined
Basis (From
S.No.1 to 3
2 Set Design Building/
Architectural
Planning Services/
Electrical Designing/
Fabrication Services
As per
Customer's
Specification
As per
Customer's
Requirement
3 Technical/
Consultancy
Services
As per
Customer's
Specification
As per
Customer's
Requirement
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19. A comparison between the item covered by the tender and the
items covered by the certificate clearly shows that the items covered
by the certificate are not the items for which the subject tender was
issued. Though part of the item covered by the certificate includes
civil foundation work, however, that is not the main item for which
the tender has been issued and that is only ancillary to the main tender
item i.e. supply and installation of High Mast Signage. The tender has
been issued for High Mast Signage and none of the three items as
specified in the certificate submitted by the petitioner qualify as High
Mast Signage or similar work as defined in the tender document.
20. The petitioner submitted the bid being aware of the tender
conditions and as such the petitioner should have ensured that if the
petitioner was claiming exemption from payment of Earnest Money
Deposit then the certificate submitted by it should conform to the
tender conditions. The petitioner, having not submitted either the
Earnest Money Deposit or a valid certificate qualifying for an
exemption, cannot be permitted raise to a grievance of rejection of the
bid.
21. There is no merit in the contention of the counsel for the
petitioner that the respondents could not have qualified the NSIC
certificate by making it restricted to the items covered by the tender
and NSIC certificate should have been treated as valid for all items.
The tender document itself stipulated that the certificate must cover
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W.P. (C)1344/2015 Page 8 of 9
the items tendered. The petitioner, being aware of the said tender
conditions participated in the tender and having participated in the
tender, cannot challenge or impugn the tender condition. The
petitioner having participated in the tender process can only expect
equality and fair treatment in the matter of evaluation of competitive
bids. The petitioner cannot be permitted to challenge the terms and
conditions of the tender after he had participated in the same.
22. Since the petitioner neither submitted the EMD nor a valid
certificate as required by the tender conditions, the bid of the
petitioner was clearly non-responsive. The respondent No.2, in our
view, has rightly rejected the technical bid of the petitioner.
23. In view of the above, we find no merit in the petition. The writ
petition is, accordingly, dismissed leaving the parties to bear their own
costs. The interim order dated 10.02.2015 is vacated.
SANJEEV SACHDEVA, J.
MARCH 26, 2015 BADAR DURREZ AHMED, J.
sv
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