Judgment:
(Prayer: This writ petition is filed under Articles 226 and 227 of the Constitution Of India, With A Prayer To Directing The Respondent To Empanel The Petitioner As A Contractor Pursuant To Tender Notice For Empanelment Of Contractors Dtd.14.03.2012 (Annex-A) Published Through The Respondent's Website For Empanelment As A Contractor For The Project Of "Design and Construction Of Aircraft (Mmrca) Manufacturing Facility At Aircraft Division, Hal Bangalore" And Etc.)
1. The petitioner is before this Court seeking for issue of mandamus and direct the respondent to empanel the petitioner as a contractor pursuant to the tender notice dated 14.03.2012 published by the respondent for empanelment as Contractor for the Design and Construction of Aircraft Manufacturing Facility ('MMRCA' for short) at Aircraft Division, Bangalore. The petitioner is also seeking that the letter dated 21.09.2012 (Annexure-Q) be quashed. On empanelment, the issue of tender documents are also sought.
2. The facts in brief are that the petitioner is a company which is engaged in engineering, manufacturing and construction. The respondent which is a Government company under the Administrative control of the Ministry of Defence had issued a tender notice for empanelment of Contractors in respect of the construction of MMRCA facility. The notice was published on 14.03.2012 on the website of the respondent-company. The interested contractors were to respond through e-mode. The procedure for uploading the documents was indicated and the last date for submission of the documents for enabling empanelment was to be made before 25.04.2012. The petitioner contends that they had submitted 79 documents including the required documents for empanelment on the Portal of the respondent between 24.04.2012 and 12.03 hours on 25.04.2012 which according to them is prior to the outer time that was fixed. The petitioner however did not receive the acknowledgment for the same. Hence, the petitioner addressed a letter dated 26.04.2012 to the respondent and sought acknowledgment for the same by enclosing thereto the screenshots indicating the uploading of the documents.
3. The petitioner contends that the respondent informed the petitioner that the petitioner had stated the option "IMM" instead of "ALL" while selecting the Department in the user profile at stage No.1 and the documents submitted as per stage No.2 got saved in the document library of the respondents server and as such, it was not acknowledged. The e-mail dated 20.04.2012 exchanged between the parties is relied upon. An earlier e-mail dated 30.11.2011 is referred to contend that the option "IMM" was chosen as per the advise of the respondents. The petitioner contends that when the documents had left the computer resource of the petitioner and had been uploaded in the computer resource of the respondent, the documents submitted on 25.04.2012 is to be considered as valid and having been uploaded within the deadline. Reference is also made to an earlier instance where this Court had accepted such error by a tenderer and direction has been issued to consider their documents. In addition, the petitioner also refers to the subsequent meetings and the correspondence exchanged between the parties wherein the petitioner had brought all these aspects to the notice of the respondents and had sought that the documents submitted by the petitioner be considered for assessing their claim for empanelment. Despite the same, the respondents had not considered and presently, when the respondents have issued the tender documents to the others and had excluded the petitioner on the said ground, the petitioner is before this Court.
4. The respondent has filed a detailed objection statement. The manner in which e-tendering has been adopted by the respondent-company and the procedure followed has been explained in detail. The particulars furnished in Vendor Help Manual and the provision of help desk which functions round the clock is referred to indicate about the assistance that is available to vendors to complete their tendering process in the event of there being difficulty. The step by step process to be followed till the documents are uploaded to the 'Document Library' and the manner it is to be attached to the Mandatory File and the tender submission is to be completed and acknowledgment be obtained has been explained. It is averred that on completion of the said process an 'acknowledgment' will be generated and an e-mail indicating the successful submission of the bid will also be sent to the users e-mail identity. The non-availability of these documents with the petitioner shows that they have not completed the submission is the contention. The present contract for construction is by 'WORKS' department and empanelled contractors to that department alone would be issued tenders. Since the petitioner contends that they had registered in 'IMM', even if that be so, they are not entitled. Clause 10.6 of tender notice is referred where it provides non- uploading of requisite documents due to negligence or ignorance of tenderers leading to disqualification will have to be borne by the tenderer only. The earlier registration dated 15.12.2011 in 'IMM' as claimed is denied since the present tender notification is dated 14.03.2012. Hence, the petitioner cannot be considered as a registered Contractor. The discrepancies occurring in the documents relied on by the petitioner are referred and it is contended that non-indication of date in the "attached" column will disclose that the documents were not attached as on the date of submission of the documents for empanelment. Hence, when the petitioner had not registered for empanelment in 'WORKS' department, the petitioner would not be entitled for issue of tender documents in respect of the contract to be undertaken therein. The parallel drawn to the case of another contractor - MARG is not admitted and it is contended that it is under a different circumstance. The respondent therefore seeks dismissal of the petition.
5. Heard Sri K.G. Raghavan, learned senior counsel on behalf of Sri Rajesh D.M., learned counsel for the petitioner and Sri S.V. Shastri, learned counsel for the respondent and perused the petition papers.
6. The position which is evident from the rival contentions is that the respondent had sought for empanelment of contractors through e-mode if such contractors are eligible and are interested in undertaking the Design and Construction of Aircraft (MMRCA) Manufacturing Facility. Such of those contractors who were to respond were to be evaluated and empanelled. Only such of those empanelled contractors would thereafter be issued the tender documents to offer their tender for the construction work. The uploading of documents for consideration for empanelment was to be done on or before 12.30 hrs. on 25.04.2012. Though the petitioner has responded to the empanelment notification dated 14.03.2012, the e- registration process was not completed appropriately and as such were not enrolled as per the case of respondents. Hence, they were not entitled to receive the tender document. On the other hand, the petitioner contends that the uploading as done was sufficient; even otherwise, the said documents could have been received and assessed by the respondents for considering empanelment as it had entered their domain is also their contention.
7. With regard to the appropriate procedure to be followed for successful uploading of the document to the appropriate department and that in the instant case, the construction work is to be undertaken by the Works department, there can be no dispute. Further, the fact that the petitioner has not uploaded the documents to the Works department on the e-portal of the respondent-company is clear from the fact that the petitioner, neither has got the acknowledgment nor the e-mail confirming the completion of registration which had been attempted by them. It is in that context, the other contentions of the petitioner needs consideration to find out as to whether the facts and circumstances herein would merit a direction to the respondent even at this stage to take on record the documents submitted by the petitioner and evaluate the same for empanelment and if empanelled to issue the tender documents relating to the contract.
8. Learned senior counsel for the petitioner referred to Annexure-G to contend that the petitioner cannot be faulted since the respondents themselves had guided them to select category 'IMM' online through HAL's e-procurement portal. However, a reference to the said e-mail would indicate that the same is dated 30.11.2011 and it would also refer to submission of documents to RWRDC Division. But, the instant empanelment notification itself is issued much subsequent on 14.03.2012 and is of Facilities Management Division. Hence, the contention that it was uploaded to 'IMM' at the instance of the respondent and thereafter they requested to change to 'ALL' cannot be accepted. Further, even on that premise, if the petitioner had completed the valid uploading to 'IMM' division in respect of the same empanelment though erroneously, the acknowledgment generated should have been available to accept their contention as bonafide, which is not the case.
9. In that light, the question which would arise for further consideration is as to whether the details as demonstrated from the copy of the 'screenshot' at Annexure-D to the petition can be considered as sufficient compliance of the requirement so as to be considered as a valid application, as having completed the entire process of uploading despite not being uploaded to any particular division or department. From the procedure as contemplated, it is seen that the contractor responding and seeking to apply through e- portal would be enabled to upload the documents primarily to the 'Document Library' of the respondent and thereafter it has to be attached and formatted to the department concerned. If this procedure is kept in perspective, a perusal of 'Annexure-D' will indicate that the further process after uploading the documents to the library is incomplete since it has not been attached and forwarded. Hence, though the documents were uploaded to the 'Document Library' on 24.04.2012 and 25.04.2012 as seen therein, the space provided for entering 'Last Attached Date' has not been entered, which establishes that the entire process was not completed. In such situation, the reliance placed on Sections 6 and 13 of the Information Technology Act, 2000, is also misplaced in the present circumstance nor has the process been factually completed, when the procedure for confirmation of tender completion is specified.
10. Despite the same, what is to be noticed is that the petitioner realised the discrepancy and on the very next day i.e., on 26.04.2012 had addressed a letter to the respondent bringing to their notice that they had uploaded the documents on 24th and 25th April 2012, but they have not received the acknowledgment. Hence, they have requested the respondent to consider their submission as the same was due to technical reason. The e-mail at Annexure-F is also referred to indicate with regard to change of domain area in e-procurement portal. However, after the exchange of correspondence, the respondents by their letter dated 21.09.2012 (Annexure-Q) have categorically informed the petitioner that they have not been considered for empanelment and the Demand Draft dated 16.04.2012 and Integrity Pact were returned. If at that stage, the petitioners were before this Court it was a different matter as it would have been at the threshold and the process of having one more competitor and in that direction, the assessment of the documents uploaded by the petitioner after retrieving the same from the 'Document Library' was certainly open to be considered by this Court. In fact the petitioners have relied on the order dated 23.07.2012 passed in W.P.No.22084/2012 (Annexure- H) wherein another contractor was permitted by this Court in respect of the same process. This Court had noticed the minor delay and the server defect that was complained. Be that as it may, that was a case where the petitioner had approached this Court immediately on their documents not being accepted. However, at present, the empanelment process has also been completed and as per Annexure R-D, already 14 contractors have been empanelled and at this belated stage, when tender documents were being issued to the empanelled contractors, the petitioner is before this Court through this petition filed on 31.10.2013 in respect of the rejection made on 21.09.2012. Therefore, whether any relief could be granted to the petitioner in such situation at this belated stage needs consideration.
11. Learned senior counsel for the petitioner has contended that even at this stage, if the petitioner is permitted, it would only increase the competition and will enable the respondents to have the work done at competitive rates which is also in public interest. It is contended that such procedure has been approved by the Hon'ble Supreme Court. The decision in the case of G.J. Fernandez -vs- State of Karnataka and Ors. [(1990) 2 SCC 488] wherein it was observed and concluded as hereunder is relied.
"The fact that a document was belatedly entertained from one of the applicants will cause substantial prejudice to another party who wanted, likewise, an extension of time for filing a similar certificate or document but was declined the benefit. It may perhaps be said to cause prejudice also to a party which can show that it had refrained from applying for the tender documents only because it thought it would not be able to produce the documents by the time stipulated but would have applied had it known that the rule was likely to be relaxed. But neither of these situations is present here. Shri Vaidyanathan says that in this case one of the applicants was excluded at the preliminary stage. But it is not known on what grounds that application was rejected nor has that party come to court with any such grievance. The question, then, is whether the course adopted by the KPC has caused any real prejudice to the appellant and other parties who had already supplied all the documents in time and sought no extension at all? It is true that the relaxation of the time schedule in the case of one party does affect even such a person in the sense that he would otherwise have had one competitor less. But, we are inclined to agree with the respondent's contention that while the rule in Ramana case will be readily applied by courts to a case where a person complains that a departure from the qualifications has kept him out of the race, injustice is less apparent where the attempt of the applicant before court is only to gain immunity from competition."
12. Learned senior counsel for the petitioner has also relied on the decision in the case of M/s. Dehri Rohtas Light Railway Company Limited -vs- District Board, Bhojpur and Others [(1992) 2 SCC 598] wherein it is held as hereunder;
"13. The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not as to physical running of time. Where the circumstances justifying the conduct exist, the illegality which is manifest cannot be sustained on the sole ground of laches."
Further, the decision in the case of Koramangala Residents' Vigilance Group, Bangalore and another -vs- Corporation of the City of Bangalore and Others reported in [1999 (4) Kant LJ 206 (DB)] is relied wherein it is held as hereunder: "6. The only question to be considered in these appeals is as to whether on account of the alleged delay, the appellants were entitled to any relief or not? It is admitted position of law that Article 226 of the Constitution of India does not prescribe any period of limitation for invoking the jurisdiction of the High Court, but the extraordinary remedy cannot be availed of unless it is resorted to soon after the rights, which are to be protected, are infringed. The party approaching the Court must be shown to have approached with clean hands and without wasting any time. The question of delay and laches has to be decided in each case according to the facts pleaded for which no hard and fast rule can be prescribed. The party approaching the Court must be shown to be vigilant in seeking the relief. If satisfactory explanation for the delay is put forth, the same has to be examined and the approach in deciding the question of delay would naturally be liberal where the petition filed is in public interest.
There is a distinction between laches and negligence. The delay which could be explained satisfactorily does not amount to laches, but laches is such negligence or omission to assert a right as, taken in conjunction with the lapse of time, more or less grave, and other circumstances causing prejudice to an adverse party."
Hence, it is contended that when the petitioner is a reputed construction company, if they are considered for empanelment and if empanelled, it would be in public interest as the tenders would be more competitive. Since third party interest has not occurred in the meanwhile, the delay, if any is immaterial and even otherwise, the said time was spent exchanging correspondence with the respondents.
13. The learned counsel for the respondents on the other hand has relied on the decision in the case of Purvankara Projects Ltd vs. Hotel Venus International and others [(2007)10 SCC 33] wherein it is held that doctrine of fairness cannot be invoked to amend, alter or vary the express terms of contract between the parties. It was held so, while considering the case wherein the High Court had held that the respondent was entitled for further extension of time to furnish the bank guarantee; in the case of Sorath Builders vs. Shreeji Krupa Buildcon Ltd and another (2009)11 SCC 9) wherein it is held that Tender terms are contractual, it is for the Government to frame conditions and the High Court should not modify the same by acting as an appellate authority. It is held that the entire process should not have been upset; in the case of Jagadish Mandal vs. State of Orissa and ors [(2007)14 SCC 517] wherein it is held that the scope of interference in judicial review of tender process and award of contract is limited only to cases where there is material violation of terms relating to scrutiny and acceptance which is vitiated by arbitrariness, irrationality, malafides or favouritism. Subsequent materials cannot be the basis to test the decision of the authority; in the case of Heritage Paper Mills Ltd. vs. State of Karnataka and another (ILR 1998 Kar 1003) wherein a learned Judge of this Court has held that when question of facts are involved, interference in writ petition is permissible only when unreasonableness or arbitrariness is demonstrated.
14. The learned counsel for the respondent also relied on the decision of the Division Bench of the Gujarat High Court in the case of Kumar Infra Projects Ltd. vs. State of Gujarat and ors (D.D.11.02.2011) wherein the condition for submission of hard copy was held not arbitrary when there was no allegation of malafide. It was held that when the procedure was known to all and if the petitioner fails because of his own negligence and callousness, any interference will be a premium and when package containing hard copy was already given back to the petitioner, any directions to consider thereafter would give rise to other complications. In that context, the learned counsel for the respondent herein contended that any interference at this stage would effect the tender process and would cause further delay. It is his case that there is no allegation of malafide in the instant case and though the petitioners themselves were negligent, they are putting forth such contentions at this stage.
15. From the decisions relied on by the learned counsel for the respondents and also from the position of law which is well settled, there can be no doubt with regard to the limited scope of interference available to this Court in the process of judicial review in contractual and tender matters. In the instant case, the grievance so far as the petitioner is concerned is only at the stage of empanelment of contractors and not evaluation of Tenders. Therefore, if even in that circumstance, the decision in the case of G.J.Fernandes (supra) relied on by learned senior counsel for petitioner is kept in perspective, though acceptance enabling wider competition was approved in a case where last date for submission was extended, the same in any event occurred in a single process of submission and evaluation of tender. In the instant case, the schedule is, empanelment initially and from that stage long time has elapsed. Thereafter only the empanelled contractors would be issued tender documents and would thereafter be evaluated based on tender submitted. Therefore, in such circumstance, as noticed above, if the petitioner was before this Court without loss of time, it would have been a different consideration, but the question is whether the delay would be material.
16. To consider that aspect, even if the decisions in the case of Koramangala Residents Vigilance Group, Bangalore (Supra) and in the case of M/s. Delhi Rohtas Light Railway Company Ltd. (Supra) relied on by the learned senior counsel for the petitioner is taken into consideration, not only the third party rights creeping in is one of consideration to take note of delay, but the party seeking benefit must also be shown to be vigilant in seeking relief and there should be satisfactory explanation and each case should depend upon its own facts. Further, in the case of Kumar Infra Projects Ltd (supra) it is held that the Court cannot put any premium on callousness or negligence. If viewed from this backdrop, in the instant facts, as noticed, the notification for empanelment was issued on 14.03.2012 and after the initial exchange of correspondence, the respondents by their letter dated 21.09.2012 had returned the demand draft thereby signaling the rejection of the claim by the petitioner for empanelment. From the said date, the instant petition filed on 31.10.2013 is after 1 year and 1 month which certainly is a long period. Though a letter was addressed thereafter on 06.10.2012, the subsequent letter was only on 18.10.2013 as a prelude to this petition. The initial error committed in the process of uploading the documents and the manner in which the petitioners have sought to agitate their rights shows that they were never vigilant and have not acted as a prudent business concern, who were interested in the present tender process. Once they were excluded from the process of empanelment and demand draft was returned, they were certainly aware that the empanelment of other contractors would be completed and tender documents would be issued only to such empanelled contractors. Hence, the petitioners should have acted in haste to approach this Court to seek redressal and secure empanelment before the tender documents are issued.
17. On the other hand, the averment in para 22 of the petition is to the effect that they were negotiating, but the same is not borne out from records except for the letters referred above. Presently, the tender documents were issued to empanelled contractors and the last date for submission is stated to be 30.12.2013. Apart from the casual attitude of the petitioners which should disentitle relief to them, there are 14 other contractors who have been empanelled and they would have received tender documents and submitted their tender keeping in view the competitors that were available in the field. At this stage, if any indulgence is shown, the entire process would have to be stalled, the empanelment evaluation of the petitioner would have to be made, if empanelled, the tender documents be issued, await submission and thereafter proceed with the evaluation of tenders. The rates quoted and tenders submitted by the other tenderers may also have been influenced based on the rival contractors in the fray at that point and on assessing the strength and weakness of the other tenderers as well. Hence, they would also be prejudiced, if there is a new entrant at this belated stage. All these consequences would not have been there, if at least the petitioner had approached this Court immediately after they were denied the opportunity as was done by another contractor. But, at present, the delay would certainly matter and providing an opportunity or widening the scope of competition even in public interest cannot be the concern of this Court when the petitioners themselves were not diligent. Hence, I see no merit in this petition. The same is accordingly dismissed with no order as to costs.