Full Text
HIGH COURT OF DELHI
Date of Decision: 12.08.2021.
ALPEX SOLAR PVT. LTD. ..... Petitioner
Through: Mr. Rohit Rathi, Adv.
Through: Mr. Samdarshi Sanjay, Adv.
HON'BLE MR. JUSTICE JASMEET SINGH
JUDGMENT
1) The writ petition has been filed seeking the following substantive prayer: a. “Quash and set aside the impugned communication dated 20.05.2021 issued by the Respondent No.2 insofar it fails to include the Petitioner in the „Envelop Name: Price Bid; b. Quash and set aside the impugned e-mail communication dated 21.05.2021 issued by Respondent No.2 to the Petitioner. c. xxxxxxxx d. xxxxxxxx e. xxxxxxxxx f. Direct the Respondent to provide reason(s) for rejection of Technical Qualification bid of the Petitioner;” 2) The Petitioner claims to be a significant global player in the manufacture of highly specialized high power photovoltaic modules 2021:DHC:2453-DB and solar systems which are not only world class, but also most cost effective.
3) The Respondent is Energy Efficiency Services Limited (EESL) and is a Super Energy Service Company (ESCO), which enables consumers, industries and governments to effectively manage their energy needs through energy efficient technologies. EESL was founded in 2009, promoted by Ministry of Power, Government of India as a Joint Venture of four reputed public-sector undertakings namely a) NTPC Limited, b) Power Finance Corporation Limited, c) REC Limited and d) POWERGRID Corporation of India Limited.
4) On 14.01.2021, the Respondent issued Detailed Invitation for Bids (IFB) for design, manufacture, supply transport, installation, testing and commissioning of Off Grid Solar Photovoltaic Water Pumping Systems of 1-10 HP in Selected States on PAN India basis, including complete system warranty and its repair and maintenance for 5 Years under MNRE KUSUM scheme Component–B. The e-bids from eligible bidders were invited for the aforesaid work under Singlestage Three-envelope bidding process through E-tendering.
5) Pursuant to the IFB dated 14.01.2021, the Petitioner submitted its Bid with relevant documents vide the E-tendering process, as per the format prescribed by the Respondent. The Respondent issued the Envelope receipt on 17.02.2021 and duly acknowledged the documents.
6) On 03.03.2021, the Technical Qualification bids were opened by the Respondent and there was no prior intimation given to the Petitioner regarding the same. A communication dated 26.03.2021 was addressed by the Respondent to the Petitioner, thereby directing the Petitioner to provide certain clarifications vis-à-vis their bid documents. The aforesaid communication was replied to by the Petitioner, and the requisite documents sought by the Respondent were also provided.
7) Thereafter, the Petitioner‟s bid was rejected, since the Petitioner was not included in the „Envelope Name: Price Bid‟. Vide communication dated 20.05.2021, the Petitioner learnt that his technical bid had been rejected.
8) The Petitioner, on 21.05.2021, addressed a communication seeking the basis of which Petitioner‟s bids was declared „non-responsive for technical evaluation‟. Since no reply was received, the Petitioner has filed the present writ petition.
9) When the matter came up before this Court on 05.07.2021, the Petitioner requested to amend his writ petition, to incorporate the challenge to the reasons for his disqualification, which had been communicated to him during the pendency of proceedings. This Court allowed the same and directed the Respondent to file their counter affidavit.
10) Pursuant to our orders dated 05.07.2021 and 16.07.21, the Respondent has filed a counter-affidavit and the reason for rejection has been stated in Para 4-7, which reads as under: “(4) It is submitted that as per Format 1 Annexure III, the details of Annual Turnover of any 3 of the last four financial years have to be submitted, whereas the Petitioner incorrectly submitted for 4 years. (5) It is however, submitted that Respondent No.2 made the calculation on the basis of Average Annual Turnover of latest 3 years (as per the Balance Sheet) and the average turnover comes to 154.29 Crores (approx.) hence the Bid was rejected. (6) It is pertinent to mention herein, that wherever, Average Annual Turnover of 4 years have been submitted by the bidder‟s, the calculation is based on latest 3 years and this practice has been applied uniformly to all such bidders by Respondent No.2 to avoid any discrimination. (7) It is therefore, submitted that as per the Qualifying Requirement, the Petitioner was not found to be eligible and hence its bid was rejected.”
11) Even though the counter affidavit is cryptic on the detailed reasons for rejection, Learned Counsel for the Respondent during arguments has submitted that the Respondent has taken the annual turnover average for the years 2017-18, 2018-19 and 2019-20. Learned Counsel for the Respondent submits that the average taken for the above 3 years do not cross the required Average Annual Turnover (ATO) – being
154.29 Crores. Hence the rejection.
12) We have heard the learned counsel for the parties and gone through the case of the parties. It will be relevant to reproduce the relevant extract of the qualification requirement contained in Annexure-II which reads as under: “Annexure II QUALIFYING REQUIREMENT(QR) In addition to the satisfactory fulfilment of-requirements stipulated under section ITB, the following shall also apply: Sr. No. (A) Criteria (B) Documents to be submitted (C) Particulars in brief of the Documents submitted by the Bidder on Covering Letter (D) 1...... 2......
3. Bidders should have Average Annual Turnover (ATO) as per Table 2 below for any 3 years out of the last 4 years i.e. 2016-17, 2017-2018, 2018- 2019 and 2019- 2020. Duly authorised copy of audited annual report/ Balance Sheet for any three financial years out of last four years (i.e. 2016-17, 2017-18, 2018-19 and 2019-20) is to be submitted by respondent along with CA certificate. Turnover means operating income. Profitability means: Profit after tax. M/s 2016-17: 2017-18: 2018-19: 2019-20 Refer Format-1 in Annexure-III
13) The document to establish the Turnover criteria in the Qualification Requirement was to be as per Format 1 in Annexure-III, which reads as under: “ANNEXURE-III Format 1 Information on Average Annual Turnover [To be printed on the Letterhead of the bidder including full postal address, telephone, faxes and e-mail address] Annual Turnover Data for the last 3 years Year Net Worth (in INR) Annual Turnover (in INR) 2019-20 2018-19 2017-18 2016-17 Annual Average (This format should be certified by the practicing CA‟s of the Bidder)”
14) Learned Counsel for the Respondent has made a feeble attempt to argue that, since “Annual Turnover Data for the Last 3 Years” has been mentioned in Format 1 of Annexure III, the Petitioner was required to give only, and the Respondent was required to only consider only the Average Annual Turnover for the last 3 years, namely 2019-20, 2018-19 and 2017-
18.
15) As per the certificate issued by the Chartered Accountant of the Petitioner, submitted by the Petitioner with his bid, the Average Annual Turnover of the Petitioner has been certified as under:- 16) As per the said table, if the Average Annual Turnover is taken for the years 2016-17,2017-18 and 2018-19, the Petitioner crosses the threshold limit of 154.29cr.
17) We have had the occasion to deal with the said clauses of the IFB in a similar petition viz. Gautam Solar Pvt. Ltd. v. Energy Efficiency Services Limited, W.P.(C) No. 8076/2021, decided on 12.08.2021, we have rejected the above submission by holding as follows: “16. A bare perusal of the Row 3 of the Table in Annexure II, read in conjunction with Annexure- III, Format 1, clearly demonstrates that the bidder – to be qualified, had to demonstrate the requisite Average Annual Turnover, by taking into consideration the Turnover of “any 3 years out of the last 4 years i.e. 2016-17, 2017-18, 2018-19 and 2019-20”. If the intention of the Respondent was to consider the data of only the last the 3 years i.e. 2017-18, 2018-19 and 2019-20, then there was no need for the Respondent to mention “any 3 years out of the last 4 years i.e. 2016-17, 2017-18, 2018-19 and 2019-20” in Annexure II of the Qualifying Requirements. The substantive provision/clause on Qualifying Requirements is the one contained in Annexure III extracted above. It refers to Format 1 in Annexure III. Therefore, even if there is any conflict or ambiguity between what is stated in the Qualifying Requirements, and what is stated in the Format 1 in Annexure III, it is the Qualifying Requirements, which would rule, and not what is stated in the tabulation in Format 1 in Annexure
III. It is also pertinent to note that even Format 1 in Annexure III permits the Bidders to provide the Annual Turnover data for four years i..e 2016-17, 2017-18, 2018-19 and 2019-20. This is in consonance with the Qualification Requirements contained in Annexure II. The mere use of the words “Annual Turnover Data for the last 3 years” in Format I is neither here, nor there. The same has to be read and understood as referring to the data of three financial years which the bidder seeks to rely upon to claim eligibility in terms of the Qualifying Requirements.
17. Since the Format I in Annexure III, provided four rows to provide the turnover data for the four years aforesaid, no fault can be found with the bidder for providing the turnover data for all the four years. It does not follow that this action of the bidder gives an option, or an opportunity, to the respondent to disqualify the bidder by ignoring the Turnover figures of the year which, if taken into consideration, would qualify the bidder.
18. Had it been the intention of the Respondent to consider the turnover data of the last 3 years only, the word „any‟ would not have been used in the Qualifying Requirements. The year 2016-17 would not have been specifically mentioned either. The said word cannot be rendered redundant. There is absolutely no ambiguity in the relevant clause in the Qualifying Requirements. It clearly permits the bidder to calculate the Average Annual Turnover by considering the Annual Turnover for “any” three years out of the four years specifically mentioned i.e. 2016-17, 2017-18, 2018-19 and 2019-20. The words “any” and the mention of four years, including the year 2016-17 would have to be ignored from the Qualifying Requirements, if the interpretation of the respondents were to be accepted. Even Format 1 in Annexure III provides one row for each 2016-17, 2017-18, 2018-19 and 2019-20. If only the last three years Turnover data were relevant, and if only those figures could be considered, there was no purpose of calling for or providing space in the said tabulation to provide the turnover data for 2016-17. An interpretation which gives meaning to the words used in the Tender Document has to be preferred over one which renders its substantive terms redundant. Where the plain English reading conveys a particular meaning, it is not open to Respondent to ignore the words to convey a different meaning.
19. In Central Coalfields Limited & Anr.
V. SLL-SML (Joint Venture Consortium) & Ors.(2016) 8 SCC 622, the Supreme Court observed:
23. In our view, there is no doubt or ambiguity in the relevant clause discussed hereinabove as contained in the Qualifying Requirements contained in Annexure II. However, even if there was any doubt, we would invoke the Doctrine of „verba chartarum fortius accipiuntur contra proferentem.‟ The Respondent in the present case was the author of the terms and conditions of the tender. If the Respondent had intended to consider the Annual Turnover of only the last three years, it would neither have used the word “any 3 years”, nor specifically mentioned the four years, including 2016-17. The wordings of the Annexures would have been different from those as framed herein.
24. As observed in Industrial Promotion & Investment Corporation of Orissa Ltd. v. New India Assurance Co. Ltd. And Anr, (2016) 15 SCC 315: “10...The Common Law rule of construction “verba chartarum fortius accipiuntur contra proferentem” means that ambiguity in the wording of the policy is to be resolved against the party who prepared it. MacGillivray on Insurance Law deals with the rule of contra proferentem as follows: “The contra proferentem rule of construction arises only where there is a wording employed by those drafting the clause which leaves the court unable to decide by ordinary principles of interpretation which of two meanings is the right one. “One must not use the rule to create the ambiguity – one must find the ambiguity first.” The words should receive their ordinary and natural meaning unless that is displaced by a real ambiguity either appearing on the face of the policy or, possibly, by extrinsic evidence of surrounding circumstances….””
25. The said principle of „verba chartarum fortius accipiuntur contra proferentem‟ has also been applied by the Supreme court in the case of Bank of India and Anr. v. K. Mohandas and Ors, (2009) 5 SCC 313 wherein the court observed thus:
18) In this view of the matter, it is clear that the Respondents have erroneously computed the Average Annual Turnover by taking into consideration only the years 2017-18, 2018-19 and 2019-2020, to arrive at figure of 154.29 Crores (approx.) as Average Annual Turnover for the last 3 years. However, if the Annual Turnover is taken for the years 2016-17, 2017-18 and 2018-19 i.e. 3 out of the last 4 years, the Petitioner will cross the threshold requirement of Average Annual Turnover.
19) Consequently, we quash the communication dated 20.05.2021 declaring the petitioner to be technically disqualified on the aforesaid ground, and direct the respondent to recalculate the Average Annual Turnover of the Petitioner correctly, and assess his responsiveness in Technical Evaluation. In case, the petitioner is found to be Technically Qualified, the respondent shall proceed to open the Financial Bid of the petitioner and proceed in accordance with law.
20) With these observations, the above Writ Petition is allowed.
VIPIN SANGHI, J JASMEET SINGH, J AUGUST 12, 2021