MONTECARLO LIMITED & ANR. v. NATIONAL HIGH SPEED RAIL CORPORATION LIMITED

14. The Respondent has argued that Stage-1 contemplates the evaluation of administrative requirements and stipulates as under: “1.1. General a) The Stage 1 Evaluation will consist of checking the Bids to confirm whether they are substantially responsive to the administrative requirements of the Bidding Documents. b) The following administrative items will be checked: i) Whether the Technical Bid is in accordance with ITB 11.2. Bid security submitted [Ref ITB 21.11; ii) Whether the power of attorney for the Bid signatory is in the correct form [Ref. ITB 22.[2] and ITB 22.3]; iii) Whether all Bid Forms have been signed by the Authorised Representative [Ref. ITB 22.[2] and ITB 22.3]; iv) Whether all data to be entered by the Bidder has been provided [Ref. ITB 12.1]; v) Whether any alterations are initialled by Authorised Representative [Ref ITB 22.4]; vi) The duly filled Checklist of Submission of Documents for Technical Bid.‖ (emphasis supplied)

15. Learned Senior Counsel for the Respondent has further argued that the tender has mandatorily prescribed that the bid forms – to be submitted by the bidder, should be signed by the bidder. In this regard, Learned Senior Counsel drew the attention of the Court to specific stipulations in Section III of the bidding document, which specifically deals with “Evaluation and Qualification 2021:DHC:2550-DB W.P.(C) 5127/2021 Criteria”. The relevant clauses read as under:

16. Clauses 1.[1] (b) (iii) and 22.[2] of the Bid Document have also been relied upon to submit that they instruct the bidder to sign all Bid forms and to check whether all the Bid forms have been signed.

17. Learned Counsel for the Respondent further argued that Bid Forms are prescribed in Section-IV of the Bid Document. 'Forms CON' deals with Contract Non-Performance, and Litigation. This Form CON has 3 separate forms. Form CON 1.0 is in respect of “History of Non-Performing Contract”; Form CON 2.0 is in respect of “Pending Litigation”, and; Form CON 3.0 in respect of “Litigation History”.

18. Each of the forms clearly indicate the requirement of being signed at the designated place. It is submitted that the requirement to sign on the prescribed bid form is the most basic and mandatory requirement. It is only when the duly signed Bid Form is received, clarification or confirmation may be sought from the bidders, and queries may be raised with regard to the contents of the Bid Form. Without meeting this basic requirement of signing on the prescribed Bid Form, the requirement of Stage-1 is not fulfilled.

19. It is the contention of the Respondent that „signing of all Bid Forms‟ is an essential condition of the Bid Document, which has been the consistent stand of 2021:DHC:2550-DB W.P.(C) 5127/2021 the Respondent. Another bidder had omitted to sign on Form FIR-1, and was also disqualified for the same reason. Learned Senior Counsel for the Respondents submits that the failure to submit the duly signed Bid Form is inherently deliberate, and cannot be condoned. It is inherent mischief if a bidder omits to sign on a relevant Bid Form which requires disclosure of information regarding Pending Litigation and Litigation History. Even though it is not pleaded in the counter affidavit, it is argued that an internet search revealed that the Petitioner is embroiled in multifarious litigations – both Civil and Criminal, as a result of which it was an intentional and deliberate omission on the part of the Petitioner.

20. The submission of the Learned Senior Counsel of the Respondent is that the Respondent has followed a uniform policy, which is fair, transparent and consistent in their evaluation process. The Respondent submits that there are 4 tiers of tender evaluation, namely:

(i) At the level of the Consultant viz, the Japan International Consultants

Consortium(JICC). JICC prepared the Technical Bid Evaluation Report (TBER) in the present case. Appendix 3 C thereof clearly sets out the reasons for the disqualification of certain bidders (including the Petitioner) due to material non-conformities.

(ii) The TBER prepared by JICC is thereafter scrutinized and analysed by a multimember Tender Committee. In the present case, the Tender Committee, after due deliberation and after specifically examining the case of the Petitioner, has approved the TBER prepared by JJCC,

(iii) Thereafter the matter is placed before the concerned ED of NI-ISRCL, who is the "Accepting Authority". In the present case, the "Accepting Authority" has affirmed the decision of the Tender Committee. 2021:DHC:2550-DB W.P.(C) 5127/2021

(iv) Thereafter the matter is sent for the concurrence of JICA (i.e. the Japan

International Cooperation,Funding Agency), which has also accorded no objection to the analysis of technical proposal in the present case.

21. The Respondent has further argued that only 12 forms were required to be filled and signed by the authorised representatives of the bidder. The Petitioner has signed/ initialled all forms, except two, namely, Form CON i.e.

2.0 Pending Litigation and 3.0 Litigation History, and an adverse inference should be drawn against the petitioner for not signing the same.

22. The Respondents state in the counter affidavit that JICC made recommendations in its TBER, which were considered, deliberated and duly accepted by the Tender Committee on 09.04.2021. The observations made by the Tender Committee qua the petitioner are as under: ―Form CON (i.e., 2.0 Pending Litigation & 3.0 Litigation History) have not been signed by the Authorised signatory of the Bidder and stamped. Due to the following material deviation in this bid, it is recommended not to ask for clarifications and that the Bidder be disqualified. The Bidding Forms 2.0 Pending Litigation and 3.0 Litigation History which clearly indicate the need for the signature of the Bidder's Authorised Representative, have not been signed in violation of ITB 22.2. These forms are important for gauging a Bidder's existing legal liabilities and work performance. Without this signature, it is unknown whether it has been submitted with the Bidder's knowledge and approval and therefore cannot be accepted. Therefore, the bid is not substantially responsive to the requirements of the Bidding Documents and considered as rejected as per ITB 33.4.‖ (emphasis supplied)

23. The respondent has also argued that the scope of judicial scrutiny in tender matters is limited, and must be left to the commercial wisdom of the 2021:DHC:2550-DB W.P.(C) 5127/2021 tender floating authority. The constitutional courts should only be concerned with lawfulness of a decision, and not its soundness. The respondents have relied on the following decisions in support of their submission:

(i) Central Coalfield Limited & Anr v SLL-SML (Joint Venture Consortium)

(2016) 8 SCC 622 [paragraphs38, 43,47, 48]

(ii) Municipal Corporation, Ujjain & Anr v BVG Limited & Ors (2018) 5 SCC

(iii) Yogiraj Powertech Pvt Ltd v State of Maharashtra, Through Its Secretary & Ors SCC Online Bom 5800 [paragraph 39]

(iv) Jalgaon Golden Transport Pvt Ltd v Union of India & Ors 2020 SCC Online

24. Learned senior counsel for the Respondent has argued that the party issuing the tender has a right to punctiliously and rigidly enforce the terms of the tender. The Court cannot substitute its view for the employer, who has interpreted the terms of the bid document, and seeks its mandatory compliance. Whether the term of the bid document is essential, or not, is the decision to be taken by the employer which must be respected by the Courts while exercising judicial scrutiny. The Respondents have argued that the scope of judicial scrutiny in tender matters is limited, and must be left to the wisdom of the tender floating authority.

25. Mr Saurabh Kirpal, Learned Senior Counsel appearing for the Petitioner has advanced his submissions in rejoinder. Mr. Kirpal submits that since the reasons for rejection have only been made known to the Petitioner upon filing of the counter-affidavit, he is entitled to deal with the respondents‟ defence in extenso. He argues that undisputedly, Form CON 2.0 and Form CON 3.0 have been duly stamped but, inadvertently, not signed. The entire electronic bid 2021:DHC:2550-DB W.P.(C) 5127/2021 at the time of being uploaded online. The fact that all the Forms have been duly submitted with the knowledge and approval of the Petitioner is evident from the check list and Form ACK, which is part of the bid submitted by the Petitioner. The relevant extract of Form ACK relied upon by the petitioner reads as follows: “Form ACK Acknowledgement of Compliance with Guidelines for Procurement under Japanese ODA Loans A) I, Mitesh Shah, being duly authorized by Montecarlo Limited (hereinafter referred to as the "Bidder") to execute this Acknowledgement of Compliance with the Guidelines for Procurement under Japanese ODA Loans, hereby certify on behalf of the Bidder and myself that: (i)all information provided in the Bid submitted by the Bidder and its subcontractors for the Project for Construction of Mumbai-Ahmedabad High Speed Rail, name of the Contract "Design and Construction of Civil and Building Works for the Depot on Design Build Lump SumPrice Basis for Double Line High Speed Railway involving works for Site Formation, Abutment, Retaining Walls, Roadbed for track, Box Culvert, Roads, Cable Duct, Foundations of OHE Masts, Piping, Drainage, Water Supply, Water Harvesting, Fire Fighting,Landscaping, Boundary Wall, General Inspection Train Shed, Maintenance Depot and other Associated works At Sabarmati between MAHSR Km. 507.599 and MAHSR Km. 509.726 in the State of Gujarat for the Project for Construction of Mumbai-Ahmedabad High Speed Rail‖ [Package No. MAHSR-C-8], and number oflot(s) is one (1), is true, correct and accurate to the best of the Bidder's and my knowledge and belief; and

(ii) the Bidder or any of its subcontractors has not, directly or indirectly, taken any action which is or constitutesa corrupt or fraudulent practice and is not subject to any conflict of interest as stipulated in the relevant section of the Guidelines and the Bidding Document. B) I certify that the Bidder has NOT been debarred by the World Bank Group for more than one year since the date of issuance of Invitation for Bids. C) I certify that the Bidder will not enter into a subcontract with a firm which has 2021:DHC:2550-DB W.P.(C) 5127/2021 been barred by the World Bank Group for a period more than one year, unless on the date of the subcontract at least three (3) years have passed since the date of such debarment decision. D) I certify, on behalf of the Bidder and its subcontractors, that if selected to undertake works and services in connection with the Contract, the Bidder and its subcontractors shall carry out such works and services in continuing compliance with the terms and conditions of the Contract. E) I further certify, on behalf of the Bidder and its subcontractors, that if the Bidder and any of its subcontractors is requested, directly or indirectly, to engage in any corrupt or; fraudulent practice under any applicable law, such as the payment of a rebate, at any time or any stage of a process of procurement such as negotiations, execution or implementation of contract (including amendment thereof), the Bidder shall report all relevant facts regarding such request to the relevant section in JICA (details of which are specified below) in a timely manner. JICA's information desk on fraud and corruption (A report can be made to either of the offices identified below.) (1) JICA Headquarters: Legal Affairs Division, General Affairs Department URL: https://www[2].jica.go.jp/en/odainfo/index.php Tel: +81 (0)3 5226 8850 (2) JICA India Office 16th Floor, Hindustan Times House 18-20, Kasturba Gandhi Marg, New Delhi-110001, India Tel: 011-4909-7000 The Bidder acknowledges and agrees that the reporting obligation stated above shall NOT in any way affect the Bidder's responsibilities, obligations or rights, under relevant laws, regulations, contracts, guidelines or otherwise, to disclose or report such request or other information to any other person(s) including the Employer or to take any other action, required to or allowed to, be taken by the Bidder. The Bidder further acknowledges and agrees that JICA is not involved in or responsible for the procurement process in anyway. F) If any of the statements made herein is subsequently proven to be untrue or incorrect based on facts subsequently determined, or if any of the warranties or covenants made herein is not complied with, the Bidder will accept, comply with, and not object to any remedies taken by the Employer and any sanctions Imposed by or actions taken by JICA. (emphasis supplied) 2021:DHC:2550-DB W.P.(C) 5127/2021

26. It is further submitted by Mr. Kirpal that, in any event, non-signing of Form CON 2.0 and CON 3.0 would not constitute a material deviation as defined under Clause 33 of the ITB. A clarification could very well have been sought from the Petitioner in terms of Clause 29.[1] of ITB, as has been done in the case of several other bidders for more serious and material omissions and deviations. Thus, the respondents have not treated the petitioner fairly and on an even scale. The petitioner also makes out a case of discrimination.

27. The Petitioner further relied upon Clause 34.[1] and 34.[2] of the Instruction to Bidders, highlighting that: where there is a non-material non-conformity, the Respondent could waive the same. Clause 34.[2] enables the Respondent to call for such information or documentation as may be necessary to rectify nonmaterial non-conformity in the Technical Bid related documentation. Relying on the two Clauses, the Respondent could have always called upon the Petitioner to rectify the same, which the respondent failed to do in respect of the petitioner, while invoking the same clauses in favour of other bidders for the reasons best known to them.

28. Mr. Kirpal has submitted that even if the respondent was of the view that the non-signing of Forms CON 2.0 and 3.0 was an omission, the tender conditions contained provisions of seeking clarification and also to permit the bidder to submit the necessary information or documentation within a reasonable period of time, and to rectify non- material non-conformities in the technical bid. In this regard, he has placed reliance on Clauses 29, 33 and 34 of the ITB extracted hereinabove. Clause 29 permits the respondents to seek a clarification of its bid by the bidder to assist the respondents, inter alia, in the 2021:DHC:2550-DB W.P.(C) 5127/2021 examination and evaluation of the technical, as well as the price bids. The only limitation is that while offering the clarification, the bidder cannot make a change in the substance of the technical bid, or the price bid. Had the petitioner been given an opportunity to clarify whether it stands by its declaration made in Forms CON 2.0 and 3.0, the petitioner could have clarified the position and put the matter to rest. The petitioner could have made up the so called deficiency by submitting signed copies of the said two Forms. Such clarification would not have involved any change whatsoever in the content/ substance of the declarations contained in Forms CON 2.0 and 3.0 and, thus, it would have no bearing on the substance of the technical bid, or the price bid. Similarly, the respondents could have had resort to Clause 34 of the ITB, as extracted hereinabove. Pertinently, the respondents have not stated that they have found the technical bid of the petitioner to be non-responsive for any other reason. In fact, the petitioner‟s technical bid has been held to be non-responsive at the very threshold only on the ground that Forms CON 2.0 and 3.0 do not bear the physical signatures of the petitioner. However, if the respondents were to proceed to technically evaluate the petitioner‟s bid on all other relevant parameters, and were to find the same to be substantially responsive (minus the two omissions in physically signing Forms CON 2.0 and 3.0), the respondents could, by resort to Clause 34 of the ITB could have permitted the petitioner to rectify the non-material non-conformities i.e. lack of signatures on the physical copies of the two forms i.e. Forms CON 2.0 and 3.0.

29. To meet the argument that the bid submitted by the petitioner bore digital signature, and that was sufficient compliance of the condition requiring signatures of the condition requiring signatures on Form CON 2.0 & 3.0, 2021:DHC:2550-DB W.P.(C) 5127/2021 learned senior counsel for the Respondent has argued that the digital signatures were only required for the purpose of uploading the 'Bid Documents', and cannot be understood as signature on the prescribed Bid Forms. (DISCUSSION & CONCLUSION)

1) Firstly, we may deal with the justification provided by the respondents for not communicating the reasons for disqualification of the petitioner soon after the said decision was taken. The reliance placed by the respondent on Clause 2 of Option A – Section I Instruction to bidder, is of no avail. Clause 28 under Clause (e) of Option A Section I states that information relating to the evaluation of bids and recommendation of contract award shall not be disclosed to bidders, or any other persons, until information on contract award is communicated to all the bidders in accordance with ITB 42. Clause (f) provides that after notification of award, unsuccessful bidder may request, in writing, to the employer a debriefing seeking explanation on the grounds on which their bids were not selected. The purpose of the clause appears to be to prevent a possible challenge to the multi-stage tendering process mid way.

2) The aforesaid clauses of the tender, in our view, are patently illegal inasmuch, as, they seek to curtail the right of the bidders to challenge the rejection of their bid in a multi-stage bidding process, at the earliest, and before the award of the contract. If such a clause is permitted to be adopted, the respondent would ensure that, even a bidder – who has a justifiable grievance and who may have been illegally ousted from the bidding process, would be left with a fait accompli, and would not be in a position to challenge the rejection of its bid at an appropriate time.

3) In our view, our jurisprudence does not permit this mechanism to be 2021:DHC:2550-DB W.P.(C) 5127/2021 adopted, as every action of the State, inter alia, in relation to the initiation, processing and award of a tender – which is a public largess, is open to judicial scrutiny. In our view, to permit the said mechanism to be adopted in respect of public tenders would tantamount to giving a carte blanch to the tender inviting authority to proceed as per its own whims and prejudices, and it would take away the valuable right of the bidders to question the acts and omissions of the tender inviting authority at an appropriate time, which if permitted, would prevent an illegal, and possible whimsical, arbitrary and biased approach in the matter of initiation, processing and award of the tender. This clause restricts the right of the bidders to seek judicial scrutiny of the tendering process, within the realms it is permitted by law. Scrutiny of State action in the matter of State Largess – within permissible scope and limits, ensures that the process remains free from serious lacunas. The State is obliged to act in a transparent manner while distributing State Largess. Such scrutiny is essential in the Public Interest.

4) We are of the view that the respondent and all other instrumentalities of the State – which invite public tenders, are bound to maintain transparency in their actions at all times, and cannot claim a right to complete the multi-stage process of tendering without keeping all the bidders informed about the status at every stage. Whenever the bid of a bidder is rejected – for whatever reasons, the reasons are bound to be conveyed to the bidder concerned, so that he may avail of his remedies, if he feels aggrieved.

5) We may state that the Courts exercising extraordinary Constitutional writ jurisdiction, while dealing with such challenges, do not interfere with the tendering process for the asking. Only when the petitioner is able to establish that it has approached the Court without any delay or laches, and that he has a 2021:DHC:2550-DB W.P.(C) 5127/2021 strong prima facie case on merits, the writ petition is entertained and such protective relief is granted, so as would not render the petition infructuous, while keeping in mind the balance of convenience. Non-disclosure of the reasons for declaring any bidder/ tenderer as “disqualified”, in fact, proves to be counter–productive, as an aggrieved bidder – when he approaches the Court firstly raises the grievance of not knowing why he has been disqualified and, since he is not aware of the reasons, he is not in a position to place those reasons before the Court. If the reasons were to be communicated at the appropriate stage, the bidder may choose not to challenge the same after evaluating their worth and, even if he chooses to challenge the same, the Court would – even at the stage of preliminary hearing, have those reasons before it to assess whether a case for entertainment of the petition is made out, or not. The Court would also be better placed to assess whether the bidding process needs interference at that stage. On the other hand, in the absence of reasons, the Court would invariably call for the reasons and may have to protect the interests of the petitioner before it, lest the petition becomes infructuous, which may result in obstruction in the tendering process. Thus, we disapprove of the mechanism adopted by the respondent to deny the reasons for disqualification to the bidders at the stage at which the bidder is disqualified. The petitioner should have been communicated the reasons for disqualification soon after the petitioner‟s disqualification.

6) We now proceed to consider the primary issue arising for our consideration in this case. We have heard learned Counsels for the parties and gone through the pleadings and judgments relied upon. The record relating to evaluation/ processing of the Technical Bids of all the bidders produced by the respondents under our directions has also been carefully perused. The moot 2021:DHC:2550-DB W.P.(C) 5127/2021 point for consideration before us, firstly, is whether the respondents are justified in taking the view that the Non-Signing of Form CON: 2.0 Pending Litigation, and 3.0 Litigation History in the physically submitted bid by the authorised representative of the Petitioner, constitutes a material breach to hold the Petitioner‟s bid as Technically Non-Responsive. Secondly, the issue that arises for consideration is whether the respondents have adopted a uniform criteria/ procedure while evaluating the Technical Bids, or whether the Petitioner has been discriminated against.

7) At this stage, it will be relevant to reproduce some relevant instructions to bidders. “29. Clarification of Bids 29.[1] To assist in the examination, evaluation, and comparison of the Technical and Price Bids, and qualification of the Bidders, the Employer may, at its discretion, ask any Bidder for a clarification of its Bid, giving a reasonable time for a response. Any clarification submitted by a Bidder that is not in response to a request by the Employer shall not be considered. The Employer‘s request for clarification and the response shall be in writing. No change in the substance of the Technical Bid or prices in the Price Bid, including any voluntary increase or decrease in the prices, shall be sought, offered, or permitted, except to confirm the correction of arithmetic errors discovered by the Employer in the evaluation of the Bids, in accordance with ITB 36.‖ (emphasis supplied)

8) We are conscious of the fact that judicial scrutiny of evaluation done by the tender floating authority – of compliance of the tender conditions, and the interpretation of tender conditions by the tender floating authority, should be only within permissible limits. The Court cannot question the decision of the tender inviting authority on merits. The Courts concern is only to see that the tender process is fair, reasonable, non-arbitrary and bonafide. The Supreme Court in B.S.N. JOSHI & SONS LTD. Vs.

NAIR COAL SERVICES LTD. AND OTHERS, (2006) 11 SCC 548 has laid down the legal principles 2021:DHC:2550-DB W.P.(C) 5127/2021 applicable to award government contracts/ tenders, which read as under:

2021:DHC:2550-DB W.P.(C) 5127/2021 any of such conditions, ordinarily again a power of relaxation may be held to be existing; iv) The parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance of another part of tender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction.

(v) When a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down,the same may not ordinarily be interfered with.

(vi) The contractors cannot form a cartel. If despite the same, their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given priority.

(vii) Where a decision has been taken purely on public interest, the Court ordinarily should exercise judicial restraint.‖

9) In these proceedings, we are concerned: whether the acts/ omissions of the respondent in the matter of evaluation of the technical bid of the petitioner are violative of Article 14 of the Constitution of India.

10) The omission on the part of the petitioner that we are concerned with, relates to the signatures/ initials not being affixed on two Forms i.e. Form CON

2.0 and Form CON 3.0, in the physically submitted bid document wherein the petitioner was obliged to declare particulars and details of pending litigations and litigation history. As already noticed above, there is no denial of the fact that these Forms have been duly filled and stamped by the petitioner. However, 2021:DHC:2550-DB W.P.(C) 5127/2021 the signatures/ initials have not been affixed on the physically submitted bid– according to the petitioner, due to over sight.

11) Consequently, though the respondents were provided with the requisite information as desired in these Forms; the Forms were also stamped, and; a general declaration was also made by the petitioner with regard to all its statements/ information being true, (in Form ACK) the physically submitted bid lacked the signatures of the authorised signatory only on these two forms. We have extracted herein above the declaration made by the petitioner in Form ACK, which is to the effect that “all information provided in the Bid submitted by the bidder is true, correct and accurate to the best of the Bidders‘ and my knowledge and belief‖. The entire bid submitted by the petitioner electronically

12) Are the respondents, in the above background, even justified in claiming that any part of the bid document – including Form CON 2.0 and 3.0 were not signed by the petitioner? In our view, the view formed by the respondents that Form CON 2.0 and 3.0 were not signed/ initialled cannot be said to be a reasonable view.

13) Despite the respondents having adopted the modern ways of dealing with the tendering process i.e. through the electronic mode – which requires the submission of e-bid electronically with due authentication i.e. with digital signatures, the mindset of the respondents has not progressed and moved on to recognise and accept the effect of the technological advancement which they authentication of each and every document comprising the e-bid document/ electronic record, by the bidder as his submission. After all, the purpose of 2021:DHC:2550-DB W.P.(C) 5127/2021 stipulating the condition that the bid should be signed by the party, is to bind him down to his bid. The signing of the bid, or any form forming part of it, is to fix the ownership of the document to the party signing the same. The digital signatures – like hand subscribed signatures, are unique to the party executing which included Form CON 2.0 and 3.0, the said Forms also stood digitally signed and authenticated. Moreover, the execution of Form ACK also had the effect of the petitioner owning up the information filled in and provided in Forms CON 2.0 and 3.0, and authenticating Form CON 2.0 and 3.0. The further stipulation that the said physically submitted Forms should be signed/ initialled can only be described as a surplussage, and nothing more.

14) The Parliament enacted the Information Technology Act, 2000 with a view to provide legal recognition to transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as “electronic commerce”, which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and in that light to amend the provisions of, inter alia, the Evidence Act.

15) Section 3 is pertinent and it, inter alia, provides that subject to the provisions of the Section, “any subscriber may authenticate an electronic record by affixing his digital signature.” Therefore, the law enables the subscriber to authenticate an electronic record by affixing his digital signature.

16) Section 4 states that where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, 2021:DHC:2550-DB W.P.(C) 5127/2021 notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is rendered or made available in an electronic form; and is accessible so as to be usable for a subsequent reference.

17) Section 5 seeks to carry further the mandate of Section 3 and 4 by providing that where any law provides that information or any other matter shall be authenticated by affixing the signature, or any document shall be signed, or bear the signature of any person, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied, if such information or matter is authenticated by means of digital signature affixed in such manner as may be prescribed by the Central Government.

18) Section 6, inter alia, states:

1. Entails publishing of all tender enquiries, corrigenda thereto and awards of contract thereon on the CPP Portal. Under e-Publishing, the User Organisations will continue to invite bids in paper based format.

1. Covers the complete tendering process starting from online publishing of tender enquiries, online bid submission by the bidders, online bid opening, uploading of bid evaluation results and publication of award of Contract. Under e-Procurement, the complete tendering, including the submission of bids by the bidders, will be online.

2. Under the e-Publishing module, the User Organisations are required to define two roles for their officials authorised to use this module, viz. a. Tender Creator/Procurement Officer Admin - responsible for filling up and uploading the details of a tender enquiry / corrigenda / award of Contract on the CPP Portal. b. Tender Publisher - responsible for publishing the tender enquiry / corrigenda / award of contract created by the Tender Creator on the CPP Portal.

2. Under the e-Procurement module, the User Organisations will be required to define two additional roles apart from the Tender Creator and Tender Publisher as in e-Publishing, viz. a. The role of Bid Opener is Critical for e-Procurement. Bid openers should be identified for each tender at the time of publishing of the tender Enquiry. b. Bid Evaluator - authorised to upload the results of the various stages of bid Evaluation on the CPP Portal. c. Minimum of 4 Bid openers must be configured against each tender to avoid any issues in tender opening d. It is suggested to have minimum

3. All authorised department users, from the User Organisations, can login using a login ID and

3. All authorised department users, from the User Organisations, will be required to 2021:DHC:2550-DB W.P.(C) 5127/2021 password assigned to them, to operate the e-Publishing module of the CPP Portal. They do not need any Additional mode of authentication. have valid Digital Signature Certificates (DSCs),in addition to their user ID and password, to be able to operate the e-Procurement Module.

4. e-Publishing does not require the bidders to enrol on the CPP Portal, since the bids will continue to be submitted in the paper based format.

4. e-Procurement requires the bidders to enrol on the CPP Portal, using a valid Digital Signature Certificate (DSC) and Valid email address. The bidders will be required to submit their bids online on the e-Procurement module. (emphasis supplied)

22) From the above, it is clear that the e-ProcurementModule mandatorily requires, inter alia, the bidders to enrol on the CPP Portal, using valid Digital Signature Certificate (DSC), and valid email address. The bidders are required to submit their bids online on the e-Portal Module – which has been done in the present case.

23) As noticed above, Section 3 of the IT Act gives the right to any subscriber to authenticate an electronic record by affixing his digital signatures. This right of the subscriber is subject only to the provisions contained in the said Section. The right conferred on the subscriber of digital signatures to authenticate an electronic record by affixing his digital signatures is not conditional upon the person/ authority before whom the electronic record is submitted, recognising the digital signatures as an acceptable and valid mode of authentications of the electronic record. Thus, digital signatures on an electronic record have been accorded the same status as the affixation of physical signatures by the concerned person/ subscriber on a physical document/ record, and digital 2021:DHC:2550-DB W.P.(C) 5127/2021 signatures on the electronic record obviate the need to affix the physical signatures by the concerned person/ subscriber in hand, on the physical document. As noticed hereinabove, in the present case, the respondents have themselves stipulated that the electronic record/ bid submitted by the bidder should bear digital signatures. In this regard, we may take note of the relevant instructions for submission of online bid contained in the NIT. The same provides “The Bidders are required to submit soft copies of their bids electronically on the e-procurement portal of NIC (CPP Portal) https://etenders.gov.in/eprocure/app,usingvalid Digital Signature Certificates. The Instructions given below are meant to assist the bidders in registering on the CPP Portal, prepare their bids in accordance with the requirements and submitting theirbids online on the CPP Portal.”. It further provides in ITB 1.[3] under the heading “submission of bids” as follows: a. Bidder should log into the website well in advance for bid submission so that they can upload the bid in time i.e. on or before the bid submission time. Bidder will be responsible for any delay due to other issues. b. The Bidder has to digitally sign and upload the required bid documents one by one as indicated in the bidding document. The Digital signature (DSC) used for uploading of the bid submission should be in the name of the person to whom the power of attorney (POA) have been issued.‖ (emphasis supplied)

24) This is in terms of the requirement laid down under the GFRs read with the General Guidelines for e-Procurement under Central Public Procurement Portal.

25) Though Section 5 of the IT Act opens with the words “Where any law 2021:DHC:2550-DB W.P.(C) 5127/2021 provides…………”, in our view, for the purpose of the said Section, the GFR can be construed as a law, since it is compilation of Executive instructions issued by the Government of India from time to time and, therefore, the respondents are certainly bound by the GFRs.

26) The fact that the electronic bid/ record submitted by the petitioner was affixed with the petitioner‟s digital signature, was sufficient compliance of the requirement of all the Forms forming part of the electronic bid/ record being “signed”, and the mere omission on the part of the petitioner to affix the signatures in hand on the two Forms in question, namely Form CON 2.0 and 3.0 submitted physically as well, could not lead to the conclusion that the said Forms were not “signed” by the bidder.

27) We may also take note of a decision of the Punjab and Haryana High Court in Civil Writ Petition No. 2440 of 2016 (O & M), titled Shree Balaji Tranport Corporation (Regd.)v. Food Corporation of India, Panchkula and others, decided on 18.02.2016.

28) The ground on which the petitioner‟s tender was rejected in this case was that the petitioner had failed to duly sign each page of the annexure, and appendixes of the Model Tender Format, and to sign and upload the same on the e-procurement portal. However, the petitioner had signed the same by way of Digital Signature Card (DSC). The stand of the respondent authority was that the expression “Duly Signed” used in the tender conditions referred only to physical signature, and not to digital signatures with the use of DSC. Like – in the present case, the tender conditions required the bidder to possess DSC for submission of the bid.

29) The Division Bench answered the question: whether the bid documents 2021:DHC:2550-DB W.P.(C) 5127/2021 could be said to be duly signed by the bidder upon use of the DSC, in the affirmative. The Division Bench held that the words “Duly Signed” and “Signed” had not been defined in the tender conditions and, therefore, their meaning should be derived on a reading of the NIT as a whole. The Division Bench held that the bidders were permitted to use DSC for submission of their bids. The instructions to bidders required the bidders to submit soft copies of their bid electronically on the CPP Portal using valid DSC. The bidders were required to digitally sign and upload the documents one by one, as indicated in the tender document. These clauses were a clear indication that the bidders were entitled to digitally sign all the documents. The Division Bench observed “Even assuming that the bidders were entitled to physically sign the documents, it would not make any difference, for, they were, in view of the above clauses, entitled to also sign the documents digitally”. The Division Bench also took note of the definition of “Digital Signature” contained in the IT Act. The Division Bench observed that even if it is assumed that the provisions of the IT Act were not applicable “However, it is reasonable to presume that parties understood the words 'digitalsignatures' to have the same meaning as in the IT Act. The parties have not stated what they took these words in the tender documents to mean. It is not denied that the DSC used by the petitioner falls within the definition of a digital signature in Section 2 (p) and (q) of the IT Act. It is reasonable to presume that what the parties meant by digital signatures was a digital signature as defined in the IT Act. Moreover, in any event, the parties were supplied the Digital Signature Card by respondent No.1 and it is that which has been utilizedby the petitioner to place the digital signatures. ”

30) Consequently, the Division Bench quashed the decision of the 2021:DHC:2550-DB W.P.(C) 5127/2021 respondents rejecting the petitioner‟s bid.

31) We may note that the submission of the petitioner that the entire bid –as submitted electronically, was controverted by the respondents. In fact, on the said aspect, the respondents have not advanced any submission whatsoever.

32) Even if we were to proceed on the basis that the failure on the part of the petitioner – to physically affix signatures on Forms CON 2.0 and 3.0 (which were physically submitted), was an omission on the part of the petitioner, it needs examination whether the respondents were reasonable in their approach in treating the said omission as fatal to the petitioner‟s bid, or, the said omission was a non-material non-conformity in the technical bid of the petitioner. The first of these issues needs examination in the context: whether the respondents have adopted a uniform procedure while dealing with the petitioner‟s bid vis-àvis other bidders.

33) Clause 33.[2] of the Instructions to Bidders states that a substantially responsive technical bid is one that meets the requirements of the bid documents, “without materialdeviation,reservation, or omission”. A material deviation, reservation, or omission is one that, if accepted, would either affect, in any substantial way, the scope, quality, or performance of the works specified in the contract, or limit, in any substantial way – inconsistent with the bidding documents, employers right or the bidder‟s obligation under the proposed contract, or, if rectified, would unfairly affect the competitive position of other bidders presenting substantial responsive bids.

34) Therefore, the question to be asked is that, if the omission of the petitioner in not signing the physically submitted Forms CON 2.0 and 3.0, were 2021:DHC:2550-DB W.P.(C) 5127/2021 to be accepted, (i.e. overlooked, condoned,or the petitioner were to be given an opportunity to clarify the position or make good the deficiency), whether it would lead to any one of the consequences enumerated in Clause 33.[2] of the ITB? The answer to this question, in our view, is a plain “NO”. The respondents could have called for a clarification from the petitioner in terms of Clause 29 of the ITB, which permits the respondents to call for clarifications “to assist in the examination,evaluation, and comparison of the technical and price bids, and qualification of the bidders………”, giving a reasonable time for response. The petitioner could have been asked: if they stand by the declarations made by them in Forms CON 2.0 and 3.0, and their signatures could have been obtained on the said Forms. If the same had been done, the same would have no bearing on “substance of the Technical Bid or prices in the Price Bid”. Thefailure on the part of the petitioner to physically sign these two Forms, even if accepted as an omission for the sake of argument, the acceptance/ waiver of the said omission would have absolutely no effect, much less in a substantial way on the scope, or performance of the works specified in the contract, since the information contained in these Forms does not relate either to the scope, or to the quality, or to the performance of the works specified in the contract. The waiver of the said omission also does not relate, in any way, much less, in a substantial way, the rights of the employer i.e. the respondent, or the obligations of the bidder i.e. the petitioner under the proposed contract. Even if the said omission (for the sake of argument, if it is accepted, is an omission), is rectified, it would not unfairly effect the competitive position of the other bidders presenting substantially responsive bids.

35) The information called for, and furnished by the petitioner in Forms CON 2021:DHC:2550-DB W.P.(C) 5127/2021

2.0 and 3.0 was information in relation to the pending litigation and litigation history, which are historical facts qua the bidder. It is not that the petitioner had hid those facts. The petitioner had filled up Forms CON 2.0 and 3.0, and even stamped them on the physical copy, apart from signing a declaration and Form ACK, and also submitting the electronic bid, including Forms CON 2.0 and 3.0, bearing the digital signatures of the petitioner. The omission on the part of the petitioner to physically sign the said two Forms was a mere omission of no consequence.

36) The tender conditions themselves show that the intent of the respondents could not have been to trap or fault a bidder on a minor oversight which did not materially affect the substance of the technical or commercial bid submitted by the bidder. Clause 34 of the ITB enables the respondent to waive any nonmaterial non-conformity in the bid, that does not constitute a material deviation, reservation, or omission. As aforesaid, the omission attributed to the petitioner, even if there is one, is not a material omission.

37) We may notice a decision of this Court in Siemens Healthcare Private Ltd. & Anr.

V. DGHS, Central Procurement Agency,W.P.(C) No. 3452/2020, decided on 19.01.2021. In this decision, authored by one of us (Vipin Sanghi, J), the Division Bench observed: ―17. In our view, the respondents have resorted to hairsplitting, and taken a hyper technical view of the matter to non-suit the petitioner.The approach of the respondents cannot be described as either fair or reasonable. The respondent cannot sit with a magnifying glass while examining the bid document, with the objective of disqualifying the bidders on some or the other ground, howsoever petty or whimsical it may be. If there is a clear noncompliance of a mandatory condition, the Tender Evaluation Committee would be justified in rejecting the bid. At the same 2021:DHC:2550-DB W.P.(C) 5127/2021 time, it cannot adopt an approach to unreasonably disqualify an otherwise qualified bidder. The purpose of scrutiny of a tender document submitted by a bidder should not be to non-suit the bidder on such hyper technical issues. Such exclusion on hyper technical approach would not be in public interest as it would curtail competition. The whole purpose of procuring goods and services by public authorities through the process of tender/ auction is to get the most competitive bids for the best product offered. Pertinently, in the present case, apart from the bidder, there was only one other tenderer, and exclusion of the petitioner was certainly not in public interest, since the said exclusion was founded upon completely unjustified grounds.‖

38) We may also take note of another decision rendered by a Division Bench of this Court in Macpower Cnc Machines Limited V. Union Of India, Through Development Commissioner Ministry Of Micro Small And Medium Enterprises (MSME), W.P.(C) 3942/2020,decided on 24.12.2020. This Court in this decision held, in relation to public tenders, inter alia, as follows:

2. General Construction Experience, Page 42/55 to 53/55 of 03 Checklist Sr. No.17 to 21 From EXP-1 & Sub-Cl 3.[2] (d)(i), Section III, Part-1 of Bidding Documents In Form EXP-1, the Bidder showsthe ending year of the project "Construction ofROB cumFlyoverat Ranichak" as

2020. Whereas in the Client certificate it is mentioned that an extension is recommended up to 17-02-2021. The Bidder is requested to provide documentary evidence that extension for this work has been granted up to 17-02-2021, which is required to satisfy the criteria for this evaluation Or Bidderto submit the documentary evidence for Form EXP-1 by referring to thosestated ongoing works mentioned in FormFIR-2.

3. Form FIR-1: Financial Resources Page 125 Page 131 From FIR-1: Financial Resources In the column 2 of FormFIR- 1, the Bidder has mentioned the values in “Million INR‟. But the Annual Reports submitted by the Bidder, showsthat the values of Net Worth are in "INR" not in 'Million INR'. Therefore, other values stated in the FormFIR-1 by the Bidderare in 'INR" not in 'Million INR'. Bidder to confirm the 'unit' of values mentioned in the Form FIR-1. 2021:DHC:2550-DB W.P.(C) 5127/2021

42) The above tabulation shows that bidder 3/9 had not even submitted the details of the key personnel in the Organisation Chart for the Head Office and Site Office. The details of duties and responsibilities of the personnel were not provided. Secondly, in the undertaking Form ACK submitted by this bidder, certain words/ letters were missing. The respondent gave an opportunity to the bidder to clarify as follows: ―The Bidder shall confirm that these missing words/letters are inadvertent on his part and that he acknowledges his compliance with the guidelines for procurement under Japanese ODA loans as per the Form ACK in the Bidding Documents.‖ 43) Thirdly, the mobilization and de-mobilization program of key personnel was not provided.

44) The first omission on the part of this bidder is far more serious than the omission attributed to the petitioner. In fact, the Organisation Chart would have a bearing on the establishment cost of the bidder, since employment of more, or higher qualified key personnel, would increase fixed costs and expenditure for the bidder while executing the contract. The failure to provide the said details in the Organisation Chart may tantamount to a material non-conformity i.e. a material omission, and the calling of such like information at a subsequent stage may, in fact, have a bearing, in a substantial way, not only on the quality or performance of the works specified in the contract, but also unfairly affect the competitive position of the other bidders presenting substantial responsive bids. Bidder 3/9 was also permitted to clarify the position with regard to Form ACK. Pertinently, Form ACK also forms part of Section 4, namely “Bidding Forms”. Thus, Bidder 3/9 was also given an opportunity to make good an omission in 2021:DHC:2550-DB W.P.(C) 5127/2021 Form ACK. Similarly, the said bidder 3/9 was given an opportunity to clarify, in relation to Clause 4.2.[2] – Method Statement I. Earthwork.

45) Same is the position with regard to bidder 7/9 in relation to Organisation Chart. The said bidder was asked to clarify, since the details of designated roles and responsibilities of the personnel were not indicated. Even this bidder did not submit the design method for Earthwork as required by Clause 4.2.[2] – Method Statement I. Earthwork.

46) Bidder No. 1/9 submitted the Organisation Chart, which was a combined chart for both the Head Office and the Site Office. The description of designated duties and responsibilities of key personnel was also not included and the mobilization and de-mobilization program of key personnel was also not indicated. This bidder was also required to clarify the position. Even this bidder had not submitted the requisite information in relation to Clause 4.2.[2] – Method Statement I. Earthwork.

47) Bidder No. 9/9 submitted an Organisation Chart which was neither signed, nor stamped by the authorized signatory of the bidder. Therefore, the failure on the part of this bidder was clearly more aggravated than the failure of the petitioner who had, at least, affixed its stamp on Forms Con 2.0 and 3.0. Surprisingly, this bidder was permitted to clarify the position by requesting him to confirm the content of the Site Organisation Chart. There were other aspects on which clarifications were sought from bidder 9/9, as set out in the above tabulation, but we need say no more.

48) We wonder as to why the petitioner was treated with discrimination by the respondent. Pertinently, Section IV of the ITB contains the bidding Forms. Site Organisation is dealt with in Clause 3.[1] of Section IV, and Forms CON 2.0 2021:DHC:2550-DB W.P.(C) 5127/2021 and 3.0 are also contained in the same “Section IV Bidding Forms”. Clause 3.[1] which deals with Site Organisation obliges the bidders to propose, and include their proposed Site Organisation in the bid. The said Organisation should indicate, and include sever aspects. Clause 3.[1] may be referred to, and the same reads as follows: ―3.[1] Site Organization The Bidder shall propose and include his proposed site organization in the bid. The Site Organization shall indicate and include the followings: (1) Organization Chart of the project with the name of key personnel and description of designated duties and responsibilities of every key personnel. (2) Organization Chart of the Head Office with the name of key personnel and description of designated duties and responsibilities of every key personnel. In case of the joint venture, Organization Chart of the Head Office of all members of the joint venture with the name of key personnel and description of designated duties and responsibilities of every key personnel.

49) The Site Organisation Form is an integral part of the documents which were required to be filled by the bidders, wherein they were required to provide the name of key personnel and description of designated duties and responsibilities of every key personnel. It is indeed difficult for us to understand as to how non-filling and non-signing of a Site Organisation Form could be construed as a non-materialnon-conformity and, at the same time, the non-signing of Forms CON 2.0 and 3.0 –when the content of the said Forms have been filled and they have been verified under Form ACK, considered as a material deviation.

50) The respondent has adopted extremely allergic attitude towards the petitioner by strictly construing the so-called omission on the part of the 2021:DHC:2550-DB W.P.(C) 5127/2021 petitioner as material omission, whereas, the above bidders have been treated rather generously by extending a long rope to them. This conduct of the respondent clearly brings out the arbitrary and discriminatory behaviour of the respondent towards the petitioner. In Poddar Steel Corporation v. Ganesh Engineering Works & Others, (1991) 3 SCC 273, the Supreme Court observed as follows: As a matter of general proposition it cannot be laid down that an authority inviting tenders in 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 requirement in a tender notice can be classified into two categories-those which lay down the essential conditions of eligibility, and the other which are merely ancilliary 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 case 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.‖

51) In M/s Telecommunications Consultants India Ltd v. M/s Bharat Sanchar Nigam Ltd 2014 SCC Online Del 7013, this Court did not approve of the hyper-technical interpretation of the bid documents resorted to by the respondent‟s tender inviting authority. The Court observed that public interest would be served by widening competition, and not by restricting the same. The Court, inter alia, observed as follows: “Furthermore no malafide can be attributed to the petitioner and prima facie we are of the view that the respondent's conduct in returning the bid security and not waiving this irregularity could 2021:DHC:2550-DB W.P.(C) 5127/2021 be regarded as a hyper-technical interpretation of the bid conditions. It is also important to note that public interest would be served by widening the competition and not by restricting the competition subject to the other bid conditions being complied with. We are of course making it clear that the interim direction would be subject to the final order passed in the writ petition.‖ (emphasis supplied)

52) Thus, the bid submitted by the petitioner could not be described as one which was not substantially responsive merely on the ground that the petitioner had failed to sign Forms CON 2.0 and 3.0 in the physically submitted bid, when affirmed with the execution of Form ACK. The approach adopted by the respondents in treating the Forms CON 2.0 and 3.0 as not “signed” is in the teeth of the provisions of the I.T. Act and, therefore, in the e-bid, illegal.

53) Learned senior counsel for the respondents, Mr. Dutta has sought to ascribe motives to the petitioner by claiming that the said two Forms i.e. Forms CON 2.0 and 3.0 were deliberately not signed by the petitioner while submitting the physical bid, as if, to conceal some material information from the respondents with regard to the pending litigation and litigation history in which the petitioner was involved. We do not find any merit in this submission of the respondents either, for the reason, that the petitioner has provided all the which included these two Forms, and also executed Form ACK, as aforesaid. Moreover, the petitioner stands by the information provided in the said two Forms and has never sought to disown them. 2021:DHC:2550-DB W.P.(C) 5127/2021

54) The list of litigation given by the respondent in their written submissions cannot be looked into by us, as the same was never a part of the counter affidavit and/ or was never put to the Petitioner to respond. Further, the bid of the Petitioner has been found to be non-responsive on account of not signing Form CON 2.0 and Form CON 3.0 only, and not on the ground that the petitioner has made false declarations.

55) The decisions relied upon by the respondent, namely ―(i) Central Coalfield Limited & Anr v SLL- SML (Joint Venture Consortim) & Ors (2016) 8 SCC 622 [paragraphs 38, 43, 47, 48] (ii)Municipal Corporation, Ujjain & Anr v. BVG India Limited & Ors. (2018)5 SCC 462[paragraphs 15, 16, 17, 20, 27] (iii) Yogiraj Powertech Pvt. Ltd. V State of Maharashtra, Through its Secretary & Ors, 2019 SCC Online Bom 5800 [paragraph 39] (iv )Jalgaon Golden Transport Pvt. Ltd. v Union of India & Ors 2020 SCC Online Born 7460 [paragraph 53]‖ do not come to the aid of the respondent in the facts and circumstances of the present case. The respondents have not only adopted an incorrect and illegal approach inasmuch, as, they have disregarded the provisions of the Information Technology Act, particularly Section 3 thereof, but they have also adopted a hyper-technical, and a clearly discriminatory approach against the petitioner.

56) The legal principles laid down by these judgments which have also been highlighted by us, state that the party issuing the tender has a right to punctiliously and rigidly enforce the terms of the contract and that the Court cannot substitute its view for that of the employers who have interpreted the terms of the bid document. However, the golden thread and the legal principles running common in all the 4 judgments is that while interpreting the terms of 2021:DHC:2550-DB W.P.(C) 5127/2021 the tender conditions, the respondents cannot act arbitrarily, whimsically and treat different bidders differently. The principle that has been reiterated in all the above judgments is that the authority issuing tender is bound to adhere to the essential terms, norms, standards and procedures laid down by it and cannot depart or deviate from them arbitrarily or act discriminatorily against one or the other bidder. The goalposts cannot be changed during the bid evaluation process to affect the right of some, or deny a privilege to some. The tender issuing authority could deviate from the terms and the conditions of the tender, but the same standards have to apply to all the bidders alike. So long as the “level playing field” is maintained and it does not result in any arbitrariness or discrimination, the conduct of the tender inviting authority may not be questioned. However, that is not so in the present case, as noticed above.

57) For the reasons as stated above, the writ petition is allowed, and the impugned communications dated 27.04.2021 and 28.04.2021 and notification dated 28.04.21 are quashed. The respondents will now proceed in accordance with law qua the tender process, by further examining the bid of the petitioner.

VIPIN SANGHI, J JASMEET SINGH, J AUGUST23,2021 / N.Khanna/‗ms‘