Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 17.04.2015
+ W.P.(C) 3677/2015
PES INSTALLATIONS PVT. LTD. AND ANR .... Petitioners
versus
UNION OF INDIA AND ANOTHER .... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr Sanjeev Behl with Ms Eklavya Behl and Mr Nitin Raj
For the Respondent No.1 : Mr Vikram Jetly with Ms Bharti Raju and Mr Ankur
Chhiber
For the Respondent No.2 : Mr Ratan K. Singh with Mr Shashi Bhushan, Mr Suraj
Prakash and Mr J. K. Chaudhary for R-2.
CORAM:
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
CM 6557/2015
The delay in re-filing is condoned.
This application stands disposed of.
CM 6556/2015
Allowed subject to all just exceptions.
WP(C) 3677/2015 & CM 6555/2015
1. In this writ petition, the grievance of the petitioners is that their bid,
which was submitted 12 minutes beyond the bid submission time, has not
WP(C) 3677/2015 Page 1 of 7
been considered. The bid was in respect of a Global Tender Enquiry for
procurement of Modular Operation T (1) and Integration Part for 6 AIIMS.
2. The tender was floated initially on 03.03.2014. The tender had gone
through various amendments and finally the bid submission date and time
were specified as 16.01.2015 at 2 pm. On 16.01.2015, at 11:53 am, the
petitioners sent an e-mail to the respondents informing them that the bank
guarantee is under preparation with their bankers and the same would be
ready and would be given to them by 1:30 pm. They made a request for
extending the time for submission of the bids, at least by 1-1/2 hours, that is,
up to 3:30 pm. In response to the said request, the respondents extended the
bid submission time to 3 pm (15:00 hours) on 16.01.2015. The petitioners
did not submit their bid by 15:00 hours, but submitted it late by 12 minutes
at 15:12 hours.
3. The learned counsel for the petitioners submits that the bid submission
time ought to have been extended up to 3:30 pm (i.e., 15:30 hours), as
requested, and not only to 3 pm (15:00 hours). He further submitted that the
petitioners had full intention to submit the bid and had tried their level best
to submit the same within the stipulated period, but were only able to arrive
WP(C) 3677/2015 Page 2 of 7
at the place for the submission of the bid at 3:12 pm. The learned counsel
for the petitioners referred to a decision of the Bombay High Court in
Infrastructure Leasing & Finance Services Limited v. State of
Maharashtra: WP(C) 1454/2009 decided on 20.08.2009. He submitted that
in that case also, there was a delay in submitting the bid by two minutes and
the High Court permitted the said bid to be considered. He placed reliance
on paragraph 28 of the said decision, which reads as under:-
“28. This entire problem can even be viewed from another
angle. Does any of the parties including the Respondent
particularly would suffer from any prejudice if the tender of
the Petitioners is also permitted to be considered? Obvious
answer would be in the negative. It is a tender of huge amount
and it will be in the interest of the State on the one hand to
have a wider choice out of the lowest bidders and on the other
hand, it would serve the public interest. It can hardly serve any
public purpose and public interest if fair competition is
suppressed at this juncture. We are told that there are only
three tenderers including the Petitioners.
Nothing substantial has happened as yet. In our view, no
prejudice will be caused to any of the parties including the
Respondent who will get wider zone of consideration by
offering greater competition which will always be in the public
interest. Obviously, the Petitioners would not gain anything as
all the bids are in a sealed cover and it is for the State to take
appropriate decision depending upon the clear technical bids
and financial bids offered by the tenderers in accordance with
the terms and conditions of the tender document.”
(underlining added)
WP(C) 3677/2015 Page 3 of 7
Consequently, he submitted that the petitioners’ bid also ought to be
considered in the same light.
4. The learned counsel appearing on behalf of the respondents, on
advance notice, submitted that the petitioners’ bid cannot be taken into
account for various reasons. First of all, the bid submission date was
16.01.2015 and a lot of water has flown since then. The writ petition was
filed around 10.02.2015 and, thereafter, the objections have only been
removed recently, which is why the petition is listed before us today, for the
first time. According to the learned counsel for the respondents, this delay
would itself disentitle the petitioners from any relief in the petition.
Secondly, it is submitted by the learned counsel for the respondents that the
delay in submitting the bid cannot be condoned as that would be altering the
condition of the bid itself. Thirdly, it was submitted that there were eight
bids which were received and the technical bids had been processed and are
at the stage of opening of the price bids. Fourthly, it was submitted that in
case the bank guarantee was taking some time, the petitioners could have
submitted a banker’s cheque which does not take much time.
WP(C) 3677/2015 Page 4 of 7
5. Having considered the submissions made by the learned counsel for
the parties, we are in agreement with the submissions made by the learned
counsel for the respondents. Once a bid submission date and time has been
fixed, the bids have to be submitted before that time, unless amended by the
employer with notice to all concerned. In this case, a request had, inter alia ,
been received from the petitioners and on that request, the bid submission
time had, in fact, been extended to 15:00 hours. The petitioners cannot
contend that the respondents were duty bound to extend the bid submission
time to 15:30 hours, as requested by the petitioners. In any event, the
petitioners were originally aware that the bids have to be submitted by 2 pm
on 16.01.2015. If eight other bidders were able to submit their bids along
with bank guarantees within the stipulated time then, there was nothing
preventing the petitioners from being completely ready for submitting the
bid on or before 2 pm on 16.01.2015.
6. Furthermore, the petitioners have approached this Court at a belated
stage and had not even bothered to remove the objections in a timely
manner. Today, when we are hearing the writ petition, three months have
elapsed from the due time for bid submission on 16.01.2015. In that period
of three months, several things have happened. Technical bids of the eight
WP(C) 3677/2015 Page 5 of 7
bidders have been opened and processed and are now at the stage of opening
of the financial bids. For this reason also, we refrain from interfering with
the tender process at the behest of the petitioners.
7. Insofar as the decision of the Division Bench of the Bombay High
Court is concerned, that is clearly distinguishable. In that case, there were
only three bidders, including the petitioner and, if the petitioners’ bid was
not taken into account, then, only two bidders would be left in the field. This
is not the case in this matter. Here, there are eight bidders whose bids are
being processed. Thus, the argument of wider participation, which may have
been relevant in the case before the Bombay High Court, cannot be raised in
the present petition.
8. Furthermore, in paragraph 28 of the said decision itself, it has been
noted that :-
“Nothing substantial has happened as yet.”
In the present case several things have happened. Technical bids of eight
bidders have been opened and processed and, therefore, for this reason also
the present case is completely distinguishable from the decision of the
Bombay High Court. This is apart from the fact that this Court is not bound
WP(C) 3677/2015 Page 6 of 7
by the decision of the Bombay High Court, cited by the learned counsel for
the petitioner. There are other distinguishable facts which we need not
allude to in the backdrop of the view which we have already taken.
9. We may also point out that it was a specific condition of the tender, as
indicated in clauses 20.2 and 23.1, that if a bid was not received within due
date and time, then it would be ignored/ rejected. So, the respondents in not
considering the bid of the petitioners, which, admittedly, was beyond the bid
due time, have not committed any wrong and have not acted in an arbitrary
fashion. They have complied with the tender conditions.
10. For all these reasons, there is no merit in the writ petition. The same
is dismissed.
BADAR DURREZ AHMED, J
APRIL 17, 2015 SANJEEV SACHDEVA, J
SR
WP(C) 3677/2015 Page 7 of 7