- (1.) We are called upon to decide the correctness of the impugned decision of the Division Bench of the High Court of Calcutta which in turn has upheld the appreciation of the law as also the facts of the case by a learned Single Judge of that Court. Thus, these courts have concurrently concluded that the Appellant-company had failed to comprehensively correspond to the essential terms of the tender and, therefore, its offer contained in the said tender was ineligible for consideration.
(2.) The two terms of the subject 'Invitation to Tender' which are germane to the case in hand are clauses (i) and (j) thereof, which read thus "(i) A declaration in the form of Affidavit in a non judicial stamp paper should be submitted stating clearly that the applicant is not barred/delisted/blacklisted by any Government Department/ Government Undertaking/ Statutory Body/ Municipality and of the like Government Bodies in DI Pipe-supply tender during last five years and if any such incident is found at any point of time, the tender will be cancelled summarily without assigning any reason whatsoever. (j) Valid PAN No., VAT No., Copy of acknowledgement of latest Income Tax Return and Professional Tax Return."
(3.) It must immediately be clarified that so far as clause (i) is concerned, the learned Single Judge had thought it unnecessary to analyse its applicability and relevance, having come to the conclusion that a violation of clause (j) had been committed by the Appellant-company inasmuch as it had failed to file its latest Income Tax Return along with its bid. This position has continued to obtain even before the Division Bench as will be palpably clear from a perusal of the impugned judgment. The Division Bench, despite noting clause (j), has concerned itself only with the legal implications flowing from the alleged non-compliance of clause (i). The Division Bench has predicated its decision on W.B. State Electricity Board v. Patel Engineering Co. Ltd., 2001 2 SCC 451 and has extracted, as we shall also do, the following paragraphs therefrom "23. The mistakes/errors in question, it is stated, are unintentional and occurred due to the fault of computer termed as a "repetitive systematic computer typographical transmission failure". It is difficult to accept this contention. A mistake may be unilateral or mutual but it is always unintentional. If it is intentional it ceases to be a mistake. Here the mistakes may be unintentional but it was not beyond the control of Respondents 1 to 4 to correct the same before submission of the bid. Had they been vigilant in checking the bid documents before their submission, the mistakes would have been avoided. Further, correction of such mistakes after one-and-a-half months of opening of the bids will also be violative of clauses 24.1, 24.3 and 29.1 of the ITB. 24. The controversy in this case has arisen at the threshold. It cannot be disputed that this is an international competitive bidding which postulates keen competition and high efficiency. The bidders have or should have assistance of technical experts. The degree of care required in such a bidding is greater than in ordinary local bids for small works. It is essential to maintain the sanctity and integrity of process of tender/bid and also award of a contract. The appellant, Respondents 1 to 4 and Respondents 10 and 11 are all bound by the ITB which should be complied with scrupulously. In a work of this nature and magnitude where bidders who fulfil prequalification alone are invited to bid, adherence to the instructions cannot be given a go-by by branding it as a pedantic approach, otherwise it will encourage and provide scope for discrimination, arbitrariness and favouritism which are totally opposed to the rule of law and our constitutional values. The very purpose of issuing rules/instructions is to ensure their enforcement lest the rule of law should be a casualty. Relaxation or waiver of a rule or condition, unless so provided under the ITB, by the State or its agencies (the appellant) in favour of one bidder would create justifiable doubts in the minds of other bidders, would impair the rule of transparency and fairness and provide room for manipulation to suit the whims of the State agencies in picking and choosing a bidder for awarding contracts as in the case of distributing bounty or charity. In our view such approach should always be avoided. Where power to relax or waive a rule or a condition exists under the rules, it has to be done strictly in compliance with the rules. We have, therefore, no hesitation in concluding that adherence to the ITB or rules is the best principle to be followed, which is also in the best public interest.";