- (1.) With the consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality.
(2.) The instant intra-Court appeal is under Clause 10 of the Letters Patent directed against the order/judgment dated 18.02.2021 passed by learned Single Judge of this Court in W.P.(C) No. 1757 of 2020 whereby and whereunder the writ court has declined to interfere with the tender cancellation order as contained under Reference No. BCCL/CMC/F-e-NIT /Coal/Tptn38/Bastacolla/2020 dated 17.06.2020 whereby the Notice Inviting Tender under Reference No.BCCL/CMC/Fe-NIT/Coal/Tptn38/Bastacolla/2020/59 dated 28.01.2020 has been cancelled.
(3.) The brief facts of the case which need to be enumerated herein, read as under :- The writ petitioner is engaged in the business of executing various kinds of contractual works including mining and transportation. The respondent BCCL has come out with an online open tender vide NIT no. BCCL/ CMC/F-eNIT/Coal/Tptn38/ Bastacolla/2020/59 dated 28.01.2020 for transportation of Coal from different sources of Bastacolla area, BCCL to different destinations in BCCL including allied jobs for 1186 days. The estimated cost as declared in the eNotice Inviting Tender was Rs.153,36,29,906/- at diesel base price @ Rs.67.60 per litre. Altogether, five bidders including the writ petitioner participated in the said tender process and the bid of one of the bidders, namely, Dhansar Engineering Co. Pvt. Ltd. was declared as rejected in the technical evaluation in view of the conditions laid down in clause 9 of General Terms and Conditions of the NIT having quoted the highest value. The tender summary report containing the technical bid opening summary and technical evaluation summary details were uploaded by the respondents on 21.02.2020 at eprocurement system of Coal India Limited (CIL). The writ petitioner as well as three other bidders qualified in the technical evaluation of the bids which was informed through e-mail communication dated 21.02.2020 and called for e-auction to be started from 01:00 PM on 21.02.2020. The price bid of all the bidders were more than 10% of the estimated value of the work (Rs.153,36,29,906.00) and thus as per the terms and conditions of the NIT, the respondents fixed the auction starting price at Rs.168,69,92,897/- and the Reverse Auction Process (in short RAP) was started. During the Reverse Auction Process, only two bidders, namely, AKA Logistics Pvt. Ltd. and the writ petitioner participated and quoted their respective prices at Rs.167,89,92,897.00 and Rs.167,09,92,897.00, respectively, and thus the writ petitioner was declared as L-1. The writ petitioner, after being declared L-1, invoked the provisions of clause 20.2 of the ITB as mentioned in the NIT and vide its letter dated 22.02.2020 offered suo moto rebate worth about 6.75% and again vide another letter dated 25.02.2020 offered suo moto rebate of further 6.22% and thereby the price quoted by the writ petitioner stood at Rs.162,90,34,128/- only against the original declared L-1 price of the writ petitioner, which was Rs.167,09,92,897/. The award of the contract could not be issued due to imposition of nationwide lockdown with effect from 25.03.2020 and suddenly, the writ petitioner could know about the cancellation order intimating it vide reference no.BCCL/CMC/F-e-NIT/Coal/Tptn38/Bastacolla/2020 dated 17.06.2020 uploaded through the office of the respondent no.4, whereby the said authority decided to cancel the tender in question, which was notified under Ref. No.BCCL/CMC/Fe-NIT/Coal/Tptn38/Bastacolla/2020/59 dated 28.01.2020 on account of technical reasons, being aggrieved with the same, the writ petitioner approached before the writ court. The plea was taken before the writ court on behalf of the writ petitioner that the writ petitioner having been declared as L-1, after a transparent bidding process/reverse auction process, is entitled to be awarded the contract in question taking into consideration that one of the bidders, namely, M/s Om Sharda Logistics Pvt. Ltd. had decided to remain out of the fray. The further plea of the writ petitioner was that the tender has been cancelled on the ground of mere mistake or technical error in the reverse bidding process as such they were required to resort to the provision of revocation of tender process from appropriate stage i.e. technical bid opening stage or the price opening stage as mentioned in Clause 34 of the ITB of the NIT hence the cancellation of tender could not have been resorted to by the respondents as per the terms and conditions of NIT itself. It has further been contended that the bid of M/s Om Sharda Logistics Pvt. Ltd. was thoroughly defective and nonacceptable because it had quoted the rate of GST @ 5% for item nos.1, 2, 3 and 6 of the BOQ which should have been 12% as applicable and it had never approached the respondents for modification or correction of its price bid and the said error remained uncorrected in the offer of the said party and thereby its price bid was fit to be rejected, however, the respondents committed illegality in including M/S Om Sharda Logistics Pvt. Ltd. for participating in the reverse auction process. It was further argued on behalf of the writ petitioner before the writ court that when the entire tender process stands the test of fairness and reasonability, the same cannot be aborted or cancelled arbitrarily even without resorting to the process and conditions of Clause 34 of ITB of the NIT. The respondent BCCL has taken the plea before the writ court that the Notice Inviting Tender since is an invitation to offer and merely because the writ petitioner has participated in the tender, does not create any right in its favour nor the respondents are denuded of their option to cancel the tender. It has further been argued that the comparative chart generated before Reverse Auction Process showed the lowest amount quoted as Rs.174,96,63,042/- i.e. 14.086% above estimated cost. Accordingly, "start bid" price was set for triggering Reverse Auction Process at Rs.168,69,92,897/- i.e. estimated cost +10% as per sub-clause no.4 of 9 B of NIT/TD, which describes the procedure of RAP. Decremental price was set at Rs.80,00,000/-. Out of four bidders, only two participated in RAP which was triggered by one of the bidders, namely, A.K.A. Logistics Pvt. Ltd. reducing the value of "Start Bid" by one decremental price of Rs.80,00,000/-. Subsequently, the petitioner also reduced the value by one decremental price of Rs.80,00,000/-. Resultantly, overall value of start bid price was reduced by Rs.1,60,00,000/- during Reverse Auction Process and the figure of start bid price came to Rs.1,67,09,92,897/-. After completion of Reverse Auction Process, BOQ summary details and BOQ of all bidders were downloaded from the system and then it was observed that the lowest quoted amount shown in comparative chart before Reverse Auction Process was in tune with BOQ summary details generated by system after Reverse Auction Process, whereas the amount shown in BOQ Summary details before Reverse Auction Process mismatched with the amount shown in the BOQ submitted by the bidders during Reverse Auction Process, as generated by portal after completion of Reverse Auction Process. The matter was reported to NIC over e-mail with a request to clarify the matter and to take necessary measures for rectification of error, if any. In this regard, NIC replied over e-mail that while designing a BOQ, the system used to follows certain logic for generating comparative chart. While preparing the BOQ by the department user, the GST row had been added as a line item which should have been put as a column which was the cause of the error. It was advised that while designing new BOQ, it should be tested in the demo site and then only it should be put on live site. So far as this case is concerned, it has been advised by the NIC that the system had included the GST amount as a line item and generated the comparative chart and hence an erroneous value occurred in the comparative chart. The Tender Committee after elaborate discussion observed that the value of the bid quoted by Om Sharda Logistics Pvt. Limited was Rs. 164,50,51,160/- which was only known to it before Reverse Auction Process, however, it neither complained when a higher value (estimated cost + 10%) was set as start bid price nor agitated even after conclusion of Reverse Auction Process declaring the petitioner as L-1 bidder by the system, rather the said bidder i.e. Om Sharda Logistics Pvt. Limited submitted an application for refund of EMD on 03.03.2020. The tender committee found that the writ petitioner was declared as L-1 bidder due to the technical error in the system though initial lower bid of Om Sharda Logistics Pvt. Ltd. was available in the system and having found such anomaly and after elaborate discussion made on the issue decision has been taken by the competent authority for cancellation of the tender process. Learned Single Judge, after taking into consideration the rival submissions advanced on behalf of the parties, has dismissed the writ petition against which the present intracourt appeal has been filed. ;