Jasbir Singh & Ors. v. Delhi Jal Board

1. The Stamp paper in lieu of affidavit submitted by you while verification of documents on dated. 13.09.2021, 14.09.2021and 17.03.2021, it is observed that stamp paper was not purchase for DJB tender purpose and also not attested by notary.

2. As per NIT conditions, the backup letter from the only vehicle manufacturer should be submitted with technical bid. But you have submitted letter issued from the manufacturer dealer in support of vehicle backup letter.

3. Training certificate submitted by you is not from the approved trainer from Skill Council for green jobs.

4. You have not submitted any financial support for the purchase of vehicles/machine. Please provide your financial capability with proper documents for supply the machine.

3. Ms. Bharti submits that on the e-procurement portal, the reasons for rejection of the technical bids of each of the petitioners have been disclosed. However, the document is not on record. She informs that bids of 67 bidders were rejected out of 275 whereas 208 bidders have qualified for the financial bids. The respondent is directed to file their counter affidavit within 10 days. Along with the counter affidavit the respondent should place on record the documents produced by at least 10 of the qualified bidders which, according to the respondent, have not been produced by the petitioners. Till the next date we direct that in case the respondent opens the financial bids of the technically qualified bidders, the financial bids of the petitioners would also be opened separately without prejudice to the rights and contentions of the parties. Since the respondent is proposing to appoint 150 contractors, in case any of the petitioners figure in the 150 lowest bidders, they shall not be awarded the contract till the next date. However, sufficient number of vacancy shall be maintained to accommodate the petitioners in case they succeed in the writ petition. The result of the said financial bid opening shall also be placed before the Court on the next date.

4. List on 18.11.2021.‖

14. The said order was challenged by the respondent by filing SLP(C) No 17199/2021 which was dismissed by the Supreme Court on 08.11.2021.

15. Pursuant to our dated 12.10.2021, the respondent Delhi Jal Board has filed a counter affidavit as well as the documents sought by us with regard to other bidders. The reason for the rejection of the bids of the petitioner is primarily three-fold and has been reproduced below (as was provided in the counter affidavit): " ….B) The Bid is rejected due to the following reasons:-

1. The bidder has not submitted EMD declaration form which is not accepted as per terms and conditions of NIT, D) The Bid is rejected due to the following reasons:-

1. The bidders have not attended physical documents verification and hence treated as non-responsive bidder.......... ….. J) The Bid is rejected due to the following reasons:- 1............ 2............

3. The bidder has submitted training certificate from Abhinav Institute of Technology & Management. The same has been verified from the skill council vide email dtd. 4/9/2021 and it is found that the trainer's certificate has been expired in May 2021. So, the training certificate of the bidder is not valid therefore bid not accepted as per NIT terms & conditions.

4. As per clause 2. 6. of NIT bidder shall provide the backup letters from vehicle manufacturer. However, bidder has submitted backup letter from the dealers. The back-up letter reply submitted physically on 01.10.2021 is not as per eligibility of tender document therefore bid is not accepted as per NIT terms & conditions.

5. The Bidder has not submitted the reply of email dtd.28/09/2021 in which the Bidder has to submit ―No Deviation Certificate‖ on letter head within 3 days. But the Bidder has not submitted the same. "

16. The petitioner has filed a rejoinder to the counter affidavit of the respondent denying the averments of the counter and reiterating the contents of the petition.

17. We have heard learned Senior Counsel, Sourabh Kirpal appearing for the petitioner and Mr. Rahul Mehra, learned senior counsel appearing for the respondent. ANALYSIS:

18. Clause 2.[5] and 2.[6] of the tender condition reads as under: - ‗2.[5] The bidder must possess a certificate as trained on "Operation and safety of mechanized septage cleaning" issued by an agency authorized by Central Govt. under the Ministry of Skill Development, GOI, or any other competent authority. 2.[6] The bidder shall provide the backup letter from the vehicle manufacturer/OEM of Machine manufacturer confirming warranty of vehicle for the period of 12 months after supply of vehicle components along with after sales service support regarding availability of spare parts for the period of 05 years which can be further extended as per requirement of Delhi Jal Board.‘

19. This was a mandatory condition of the tender and the purpose for obtaining the said certificate have been elaborated by a respondent in his counter affidavit to state: ―12. That the Petitioners failed to meet the requirements under Clause 2.[6] of NIT which mandated that ―The bidder shall provide the backup letter from the vehicle manufacturer/OEM of Machine manufacturer confirming warranty of vehicle for the period of 12 months after supply of vehicle components along with after sales service support regarding availability of spare parts for the period of 05 years which can be further extended as per requirement of Delhi Jal Board.

13. That the said mandatory condition was not met by the Petitioners as they failed to provide the certificates from the manufacturer and had suo motu provided the certificates from dealers which was contrary to the term and conditions of the NIT, as dealers may shut shop at any time during the subsistence of the project which would be detrimental as after sales support was vital during the 7 year period of implementation of the project.‖

20. One of the sample certificates from the authorized dealer initially filed by the petitioner initially was as under: Triumph Auto (CV) Private Limited TATA MOTORS Commercial Vehicle Dealer Chassis Manufacturers Authorization Certificate To, Executive Engineer (SDW)-VI Delhi Jal Board West Sewage Treatment Plan Outer Ring Road, New Delhi- 110018 Subject: Authorization Letter for Supply and After Sales Support for Chassis This is reference to the tender called upon by Delhi Jal Board (NIT No. 06 (2021-2022) EE (SDW) VI dated 30.07.2021, We hereby also confirm that we shall supply the chassis of Make: TATA Motors – 407g Gold SFC CNG/Suitable Model Confirming tender specifications to Mr. Jasbir Singh (UID: 6671 6676 4760) having addressed: R-Z-7, Shankar Park, Near Post Office, New Delhi, West Sagar Pur, South West Delhi, Delhi-110046 We also confirm the warrantee for the chassis for period of 12 months and also shall provide after sales service support & support regarding availability of spares parts for period of 08 years. Thanking You Manufacturer‘s Name Signature”

21. After the pre bid meeting, the certificates produced by the petitioners from OEM read as under: “ TATA To, The Executive Engineer Delhi Jal Board Sub: Tata Authorized dealers M/s Triumph auto (cv) Pvt Ltd, M/s Cargo Motors (Delhi) Pvt Ltd, M/s Pascos, Delhi and M/s Johar automobiles. Dear Sir, We wish to inform you that below mentioned are our authorized dealers and competent to offer our products to customers on our behalf:

1. M/s Triumph Auto (CV) Pvt. Ltd, AG-90, Sanjay Gandhi Transport Nagar, New Delhi

2. M/s Cargo Motors (Delhi) Pvt Ltd, 219/220, Village Budhpur, G. T Kamal Road, Delhi

3. M/s Pascos, B 1/ 1 3 Mohan Cooperative Industrial Area, New Delhi

4. M/s Johar automobiles, 44/1, Main Mathura Road, Seekri, Ballabhgarh,Faridabad Regards Authorized Signatory”

22. We are afraid that neither of the two certificates (pre-bid meeting and post-bid meeting) complies with the mandatory condition of Clause 2.[6] of the tender condition. All other successful bidders have provided certificates from the vehicle manufacturers, such as, EICHER, TATA, Ashok Leyland. The respondent, being a public body, could not have made an exception for the petitioners by accepting certificates from dealers or manufacturers not in strict compliance with the tender condition. The certificates produced by other successful bidderssamples of which are annexed by the respondent with its counter affidavit, read as under: ―ASHOK LEYLAND 25th Aug 2021 To whom so ever it may concern Subject: NIT NO 06 (2021-2022) EE(SDW)VI invited by Delhi Jal Board. To, DULHARIYA ENTERPRISES CHANDER PRAKASH H NO 67-A NAI BASTI DEVIL VILLAGE SOUTH DELHI Ashok Leyland ltd. as vehicle manufacturer confirms the warranty of the model ―Ashok Leyland DOST CNG BSVI Cabin and Chassis ―for the period of 12 months from the date of supply. We further confirm to provide the after sales service support regarding availability of the spare part for the period of 7 years on SOS basis. Yours Faithfully For Ashok Leyland Ltd. (LCV Division) Sd/- Authorized Signatory ***** EICHER TRUCKS AND BUSES BACKUP/MANUFACTURER AUTHORIZATION LETTER Subject: Delhi Jal Board Tender NIT NO. 06 (2021-2022) EE(SDW)VI To, M/s DULHARIYA ENTERPRISES CHANDRA PRAKASH HNO 67-A STREET NO 4 NAI BASTI DEVLI VILLAGE SOUTH DELHI 110062 VE Commercial Vehicles Limited as vehicles Manufacturer confirms the Warranty of model ―PRO 2050 CNG BS[6] cabin and chassis‖ for the period of 12 months from the date of supply. We further confirm to provide after sales support regarding availability of spare parts for the period of 7 years on SOS basis. Yours faithfully VE Commercial Vehicles Limited Sd/- Authorized Signatory ***** TATA TML/DJB/0821/609g/30 Date: 8/23/2021 BACK UP/MANUFACTURER AUTHORISATION LETTER Sub:- NIT NO, 06(2021-2022) EE(SDW)VI invited by Delhi Jal Board To, Mr.

RITIK KANDERA RK ASSOCIATES H.NO-162, MCD SCHOOL HIRANKI NORTH WEST, DELHI- 110036 9289637302 Tata Motors Ltd, as vehicle manufacturer confirm thewarranty‘ of the model ―609g SEC DCR33CBC 85B6M5‖ for the period of 36 months/ 3 lakh Km (whichever is earlier) from the date of supply. We further confirm to provide the after-sales service support regarding availability of spare parts for the period of 7 years on SOS basis. Yours Faithfully For the Tata Motors Ltd. Sd/- Authorized Signatory.

23. Mr. Mehra, learned Senior Counsel appearing for the respondent has made a statement before us that there are 208 successful bidders, out of which, tender is to be awarded to 150 bidders, as per Clause 2.[1] being the present criteria. All 208 successful bidders have filed certificates from the manufacturers as detailed by us above.

24. In this view of the matter, we are afraid that the petitioners having failed to fulfil material condition of the tender, cannot succeed in the present writ petition. Mr. Kirpal has argued before us that in terms of the judgment of the Supreme Court in Poddar Steel Corporation v. Ganesh Engineering Works and Others[1] substantial compliance of tender condition was sufficient, and, hence, the financial bid of the petitioner must be opened. Relevant portion of Poddar Steel reads as under: “6. It is true that in submitting its tender accompanied by a cheque of the Union Bank of India and not of the State Bank clause 6 of the tender notice was not obeyed literally, but the question is as to whether the said non-compliance deprived the Diesel Locomotive Works of the authority to accept the bid. As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories — those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases. This aspect was examined by this Court in C.J. Fernandez v. State of Karnataka [(1990) 2 SCC 488] a case dealing with tenders. Although not in an entirely identical situation as the present one, the observations in the judgment support our view. The High Court has, in the impugned decision, relied upon Ramana Dayaram Shetty v. International Airport Authority of India [(1979) 3 SCC 489] but has failed to appreciate that the reported case belonged to the first category where the strict compliance of the condition could be insisted upon. The authority in that case, by not insisting upon the requirement in the tender notice which was an essential condition of eligibility, bestowed a favour on one of the bidders, which amounted to illegal discrimination. The judgment indicates that the court closely examined the nature of the condition which had been relaxed and its impact before answering the question whether it could have validly condoned the shortcoming in the tender in question. This part of the judgment demonstrates the difference between the two categories of the conditions discussed above. However it remains to be seen as to which of the two clauses, the present case belongs.‖

25. We are afraid that the Judgment of Poddar Steel (Supra) is not of assistance to the petitioners. Clause 2.[6] enumerated above is an essential condition of the tender for the reasons as stated above in para19.

26. The petitioner having participated in the tender with open eyes, cannot now challenge the tender condition as being onerous. The petitioner has chosen not to challenge the condition 2.[6] before participating. If we were to relax the rigors of Clause 2.6, the same would upset the level playing field and also be violative of Privilege of Participation as per the principles of law as observed in Central Coalfields Ltd. v. SLL-ML (Joint Venture Consortium)2. The above judgment though did not overrule Poddar Steel (Supra) but struck a dissenting view. The relevant paragraphs are reproduced herein: “39.Poddar Steel [Poddar Steel Corpn. v. Ganesh Engg. Works, (1991) 3 SCC 273] was a rather interesting case and added a new dimension to the discourse. The decision of the Allahabad High Court records that the relevant clause in NIT gave the bidder the option of depositing the earnest money in cash or by a ―demand draft drawn on DLW Branch of SBI in favour of Assistant Chief Cashier, DLW Varanasi‖ [Ganesh Engg. Works v. Union of India, 1990 All LJ 1140: 1990 SCC OnLine All 628]. As many as 21 parties had responded to NIT, but 8 of them had not deposited any earnest money at all and the remaining 13 bidders had ―deposited the earnest money by one mode or the other but not necessarily in the manner provided in NIT except perhaps a few‖. The Tender Committee deviated from the terms of NIT and considered the bids of these 13 bidders and accepted the bid of Poddar Steel, who had given the earnest money not by cash or a demand draft but by ―a loose cheque drawn on its C/D account in Union Bank of India, Sonarpura, Varanasi‖. On the issue of discriminatory treatment, the contention of the employer was that since all the 13 bidders who had made the earnest money deposit were treated equally, there was no issue of any discriminatory treatment.

40. However, the High Court took the view, following Ramana Dayaram Shetty [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489] and the privilege-ofparticipation principle, that it was possible that if those who did not deposit any earnest money had known that a crossed cheque (drawn on a bank other than SBI) towards earnest money was acceptable to the employer, they too could have been in the fray. Under these circumstances, the High Court held that excluding them from competition, through this unannounced deviation affecting bidders and potential bidders alike, rendered the bidding process unfair. The High Court introduced an ―essential term‖ concept and held that the clause in NIT relating to deposit of earnest money was an essential term thereof and could not be deviated from. The Allahabad High Court held: (Ganesh Engg. Works case [Ganesh Engg. Works v. Union of India, 1990 All LJ 1140: 1990 SCC OnLine All 628], SCC OnLine All para 24) ―24. The mere fact that all the tenderers who had deposited the earnest money, whether in terms of Clause 6 or not had been treated alike cannot make any difference. It is quite possible to visualise that the parties who had failed to deposit the earnest money may also have been in the fray had they known that earnest money through cheque was also acceptable. Thus, they have obviously been deprived from competing with others and this makes the action of Respondents 1 to 5 unfair when Condition 6 of NIT so specifically points out that deposit of earnest money in any other mode except in cash or by demand draft would not be acceptable. It leads us to think that this was an essential precondition for submitting tenders and the respondents were not entitled to deviate from this. All tenders which were not accompanied by deposit of earnest money strictly in the manner indicated in NIT deserved to be rejected. We reject the contention of the respondents that the earnest money could be accepted even when it was deposited by some mode other than those in NIT. We also hold that Clause 6 of NIT is not merely ancillary or subordinate condition but in view of the language in which it is couched the same was a crucial and essential term of the tender which could not be deviated from.‖

41. In appeal, this Court in Poddar Steel [Poddar Steel Corpn. v. Ganesh Engg. Works, (1991) 3 SCC 273] accepted the theory of essential and non-essential or ancillary or subsidiary terms of an NIT. It was held that the cheque of Union Bank of India issued by Poddar Steel (though a deviation from the terms of NIT) was sufficient for meeting the conditions of NIT, the condition being ancillary or subsidiary to the main object to be achieved by the condition and that the employer could waive the ―technical literal compliance‖ of the earnest money clause of NIT ―specially when it was in its interest not to reject the said bid which was the highest‖. In other words, this Court concluded that an essential term of the tender document could not be deviated from but an ancillary or subsidiary or non-essential term could be deviated from, and that the deviation could be without any reference to potential bidders.

42. Unfortunately, this Court in Poddar Steel [Poddar Steel Corpn. v. Ganesh Engg. Works, (1991) 3 SCC 273] did not at all advert to the privilege-of-participation principle laid down in Ramana Dayaram Shetty [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489] and accepted in G.J. Fernandez [G.J. Fernandez v. State of Karnataka, (1990) 2 SCC 488]. In other words, this Court did not consider whether, as a result of the deviation, others could also have become eligible to participate in the bidding process. This principle was ignored in Poddar Steel [Poddar Steel Corpn. v. Ganesh Engg. Works, (1991) 3 SCC 273.‖.

27. Additionally, in Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd[3], the Supreme Court has observed that, “the words used in the tender documents cannot be ignored or treated as redundant or superfluous — they must be given meaning and their necessary significance.”

28. Even though there are pleadings of violation of Clause 2.[5] of the NIT, the same was neither pressed nor argued before us and hence, we need not advert to the same. In this view of the matter, we need not go any further or deal with any other contentions of the petitioner as they have failed to cross the first hurdle of meeting the eligibility condition of Clause 2.[6] of the NIT.

29. For the reasons stated above, the writ petition is dismissed, and the interim directions issued on 12.10.2021 are vacated.

JASMEET SINGH, J. VIPIN SANGHI, J. NOVEMBER 18, 2021/ „dm‟