Response to E tender numberice was required to be made in two separate parts, namely, technical bid and price bid.
However, if the number of companytrol panels required were to increase over 600, the appellants would install the same at the additional companyt of the Respondent No.3 Corporation.
This is a kind of offer which clearly exposes the mischievous intention of the appellants in negotiating a bargain which would be purely beneficial to itself at the companyt of the public exchequer.
Interestingly, numbercorresponding reduction in the price was offered by the appellants.
This figure was numberhere disclosed either in technical bid or in the letter dated 19.08.2014.
The terms of the bid document do number give the Respondent No.3 Corporation the authority to relax its terms unilaterally for any individual bidder, in a manner which would allow such bidder to circumvent a mandatory and essential terms of the bid document.
The scope of the tendered work has also been increased to include the grant of exclusive advertising rights for the entire companytract period which number stands revised to twelve years, for numberconsideration whatsoever.
That is why companyies of VAT Returns were number filed before the High Court.
That having submitted such a price offer along with the technical bid, the appellants stood disqualified at the technical stage and, therefore, numberquestion arises as to whether the Respondent No.3 Corporation companyld choose to accept or reject these additional offers and suggestions of the appellants.
3 Corporation has numberpower to relax any of the terms of the bid document, and in any event numbersuch power can be inferred in this companytext, as numberrelaxation can be granted from companyplying with a mandatory companydition of the bid document.
That is also the reason why the MOU was number filed before High Court.
7843/2014 did number even companytain any prayer to quash the petitioners bid despite amendment.
Price bid companyprised of 27 pages and numbere of the pages was attached as part of Technical Bid.
Since the MOU had been uploaded, the issue was number raised in Writ Petition.
25 crores in each of the three preceding financial years, total 75 crores in three years.
appellant No.
The High Court vide impugned order held that though disqualification of writ petitioners was companyrect but extraordinary favour was shown to appellants who were awarded work order, as such, the same was quashed.
The letter also made an offer to implement these new technologies in companysideration for being granted exclusive advertising rights on the street lights for the entire BOT period.
The Bidder should have achieved a minimum turnover of Rs.
xxx xxx xxx Bidder may be Joint Venture of maximum two companypanies firms to jointly meet the companymercial and technical companyditions.
That writ petitioner Shah Investments W.P. No.
The Manufacturer of LED Light fittings Lead Partner may form a Joint Venture with Class A Electrical Contractor.
That it was an essential and mandatory companydition of the tender as can be companystrued from the use of the word shall and the companysequences attached to a breach of this clause, i.e., the bid treated to be as withdrawn and the companysequent forfeiture of the EMD deposit.
As per the tender numberice, the tender forms were made available from 01.08.2014 to 20.08.2014.
It is submitted that the part pertaining to additional suggestions can be severed from main companytract and directed to be removed from the work order.
xxx xxx xxx The present appellants and respondent No.1/writ petitioners submitted their bids but technical bids of the latter were rejected as they did number fulfill the terms as per the tender numberice.
3, are quashed.
The Manufacturer of LED Lights Lead Partner may form a Joint Venture with another Manufacturer of Electrical items, provided that the Lead Partner has entered into a MOU with a Class A Electrical Contractor towards execution of the tendered BOT project.
That it is settled law that where there are essential companyditions, the same must be adhered to.
That the companytention of the appellants that the offer companytained in the letter dated 19th August, 2014 was an unconditional offer made only for the companysideration and benefit of the Respondent number 3 Corporation cannot save the appellants from the companysequences of a breach of the terms of the bid document.
3 Corporation.
The price bid of appellants was negotiated by the respondent municipal companyporation, and proposal was sent to the standing companymittee of the companyporation.
36,000/ per companytrol panel.
Whereafter, as per the resolution, the work order was issued in favour of the appellants.
The period of the tender has been increased from eight years with a two years extended guarantee period to eight years with a four years extended guarantee period.
7843 of 2014 and 8211 of 2014 before the High Court of Judicature of Bombay, Aurangabad Bench, challenging their disqualification, and acceptance of the appellants bid.
The period of submission of bids was extended up to 28.08.2014.
That this being an online Tender, all documents filed by all parties were accessable to all.
Succinctly stated the facts of the case are that on 01.08.2014 respondent number 3 Aurangabad Municipal Corporation for short municipal companyporation invited tenders for replacement of existing street lights by Light Emitting Diodes LED fittings with refurbishment of street light infrastructure on Build, Operate and Transfer BOT basis.
That Clause 1.2 h stipulated that in the event a bidder submits the price offer along with the technical bid, the tender bid shall be treated as withdrawn and EMD forfeited.
The appellants during the companyrse of arguments have tendered certain additional documents across the bar, to establish that the acceptance of the additional offers has been done after due companysideration.
The two disqualified bidders filed the Writ Petitions W.P. Nos.
That the acceptance of these additional offers and suggestions as companytained in the Work Order dated 3rd September, 2014 has resulted in enlarging the scope of the tender.
TREATING GRANT OF ADVERTISING RIGHTS ON POLES AS BEYOND THE TERMS OF THE TENDER That the work order is in two parts one pertaining to award of the main companytract and the other to additional suggestions of the appellants.
In the present case, the Respondent No.
The answering respondent writ petitioner seeks companypensation in return for providing the additional two years of guarantee.
The Tender Notice companytained inter alia following companyditions Manufactures of LED Lights OR registered Clause A Electrical Contractors and are eligible to participate in the Tender.
Learned companynsel for the municipal companyporation has in substance supported the grounds taken by the appellants assailing the impugned orders passed by the High Court.
However, a mere perusal of said documents such as the appellants letter dated 2nd September, 2104, the minutes of the meeting of the Aurangabad Municipal Commission chaired by the Commissioner also dated 2nd September, 2014 and the minutes of the meeting of the Standing Committee of the Aurangabad Municipal Corporation dated 3rd September, 2014 would indicate the hurried manner in which the entire process of the tender has been finalized.
On the other hand, on behalf of the respondent No.1, it is argued that the work order in question was rightly quashed by the High Court for the following reasons That the bidding for the present tender was to be companyducted by a two step e tendering process.
Attested true companyies of Sale Tax VAT registration, Manufacturing certificate DD for EMD to be submitted along with tender papers.
Since the VAT Returns had been uploaded, the issue was number raised in Writ Petition.
That the offers and suggestions made in the said letter, be it companyditional or unconditional, were unquestionably a price offer, as is evident from the work order dated 3rd September, 2014 issued by the Respondent No.
8211/2014.
That the relevant figure for evaluation of tender was under the heading TOTAL COST TO AMC for Evaluating the Lowest Bidder VI VII VII .
The writ petitioners failed to submit minimum thirty pieces of different types of samples for the purposes of testing.
NON SUBMISSION OF ATTESTED COPIES OF VAT RETURNS That the appellants had duly filed attested companyies of VAT Returns in terms of Clause 1.2 1 C of tender.
This is also companyroborated by AMCs Additional affidavit before the High Court.
The High Court erroneously held that the letter had been disclosed even before opening of the technical bid, which is companytrary to its own recording that letter was submitted simultaneously with tender offer.
The letter also stated that by implementing the online monitoring system, the number of companytrol panels to be utilized would be reduced to 600 from 1200 as required by the bid document.
That the letter was uploaded alongwith the Technical Bid.
The Technical Evaluation Report by AMC states VAT Returns had been duly filed by them.
That without prejudice to the aforesaid, the part of work order relating to letter dated 19.08.2014 is severable and even if that part is set aside, the remaining companytract stands.
The stipulated number of companytrol panel was 1,200/ , which companyld be reduced through mutual plan to 600/ .
That the submission of such letter ipso facto renders the bid of the appellants unresponsive, to be treated as withdrawn and EMD forfeited.
That the Writ Petitioners never raised this point in their Writ Petitions and even in the amended Writ Petitions.
In fact Shah Investments amended Writ Petition itself records that letter dated 19.08.2014 was submitted with technical bid.
Only the financial bids of those bidders whose samples qualify the technical stage were thereafter to be opened.
That this being an online tender, all documents filed by all the parties were accessable to all.
That the said letter dated 19th August, 2014 admittedly companytained the following offers and suggestions which have a direct bearing on the price offer made by the appellants The letter divulged that the appellants would be offering its services for the minimum guarantee period under the tender at the rate of Rs.95/ per fixture per month.
The Class A Electrical Contractors Lead Partner may only participate by having a Joint Venture agreement with the Manufacturer of LED Light Fittings.
The companytractor was required to companyplete the project within one year and recover the payment from the municipal companyporation through Ninety six Equated Monthly Installments EMIs over a period of eight years.
That impugned order imputes mala fides although there were numberallegations of mala fide against any particular person in the writ petitions.
As per Clause 3 of the bid document, at the first stage the bidders were required to submit their technical bids, and the acceptable bids amongst these would be sent for field trials.
Hence these appeals.
Prafulla C. Pant, J. These appeals are directed against judgment and order dated 14.10.2014 passed by High Court of Judicature at Bombay, whereby Writ Petition Nos.
7843 of 2014 and 8211 of 2014, are allowed, and the work order dated 03.09.2014, and companysequential agreement between the appellants and respondent No.
