Rajesh Shankar, J. - (1.) The present writ petition has been filed for quashing the letters contained in email communications dated 31.10.2017 (Annexure-10 to the writ petition) and dated 01.11.2017 (Annexure13 to the writ petition) whereby, the respondents have rejected the offer of the petitioner, pursuant to NIT No. BSL/CP/GT/CAST ROLLS/2017-19. Further prayer has been made for issuance of direction upon the respondents to allow the petitioner to participate in the bid auction to be held pursuant to the aforesaid NIT, as it is a global tender and the petitioner fulfils all the eligibility criteria for the said tender.
(2.) Learned counsel for the petitioner submits that the petitioner is an authorized representative of M/S Changzhou Kaida Heavy Industry Technology Co. Ltd. The Steel Authority of India Ltd. (in short SAIL) floated a global tender being NIT No. BSL/CP/GT/CAST ROLLS/2017-19 in which M/S Changzhou Kaida Heavy Industry Technology Co. Ltd. participated through the petitioner. The said tender was for procurement of cast rolls to be used by different units of the SAIL. The petitioner submitted its tender on 20.07.2017 i.e. the last date of the opening of the tender. The petitioner preferred that 100% Letter of Credit will be used in order to complete the deal, provided 5% Bank guarantee is given by the supplier. The concept of Letters of Credit is that since there use to be different laws in different countries, the Banks are usually made party in the deal so that in the event, if the buyer backs out from the deal then the Bank will indemnify the supplier/seller for the loss incurred by the seller. Subsequently, the Bank procures the incurred loss from the buyer. On 06.09.2017, an email was sent to the petitioner by the respondents seeking clarification/confirmation with regard to the technical and commercial points and the eligibility criteria informing, inter alia, to clarify/confirm and submit the documents immediately by 13.09.2017 positively, failing which the offer of the petitioner was to be evaluated on the basis of the submitted documents and the respondent-SAIL was to decide the offer accordingly without any further reference to the petitioner. Vide email dated 08.09.2017, the petitioner was again sought the same clarification by the respondent-SAIL, which was replied by the petitioner vide its email dated 11.09.2017. It is further submitted that the main dispute is with regard to the payment terms mentioned in Clause 4.1.1 of the tender/bid documents. Clause 4.1.1 of the aforesaid tender documents stipulates that 95% of the value of materials was to be paid to the supplier at the time of making supply and 5% payment was to be made by the respondentSAIL after completion of the Guarantee terms successfully. The petitioner had made payment offer that 95% of payment against the Letter of Credit was to be made at the sight and 5% payment was to be made by submitting performance Bank guarantee with validity of two years. Learned counsel for the petitioner while clarifying the said payment offer made by the petitioner, submits that the petitioner was to be paid 100% of the supply value at the time of making the supply, however, 5% performance Bank guarantee was to be deposited by the petitioner, subject to successful completion of the Guarantee terms for the contract period. It is further submitted that there was no material difference between the payment terms mentioned in Clause 4.1.1 of the bid documents and the payment offer made by the petitioner. The grievance of the petitioner is that though it had duly clarified the payment offer made by it to the respondent-SAIL and it was waiting for further communication, however, without communicating the subsequent events which took place in the tender evaluation, the respondent-SAIL finally communicated through email on 31.10.2017 that the petitioner has not complied the terms and conditions of the bid documents. Further, on 01.11.2017, it was informed that the petitioner's payment offer has been rejected. It is further submitted that in fact, on 27.09.2017, the petitioner had accepted the payment terms as per Clause 4.1.1 of the bid documents and, therefore, its payment offer should not have been rejected by the respondent-SAIL vide the impugned letters, particularly, in view of the fact that the Reverse bid process was started by the respondent-SAIL on 28.10.2017.
(3.) Per contra, Mr. Indrajit Sinha, learned counsel for the respondent-SAIL, submits that the aforesaid NIT was floated by the respondent-SAIL for supply of cast rolls, the Techno Commercial bid of which was opened on 01.08.2017. It is further submitted that clarification with regard to Techno Commercial evaluation was sought from the participants including the petitioner on 06.09.2017 and 08.09.2017 and the last date of submission of clarification was fixed as 13.09.2017. The petitioner replied the said communication on 11.09.2017 whereby, it did not accept the payment terms as per Clause 4.1.1 of the bid documents and insisted for its own payment terms. A meeting for finalization of the Techno Commercial bid was held on 14.09.2017, 15.09.2017 and 16.09.2017. Thereafter, the acceptable offers were decided. After internal approval, the price bid was opened for some items on 28.10.2017 and for balance items Reverse Auction process has started and the same is in progress. It is further submitted that communication of the respondent-SAIL dated 31.10.2017 and 01.11.2017 are justified in view of the fact that the payment offer of the petitioner was not considerable in the techno-commercial stage, as the payment terms stipulated in the aforesaid NIT was not accepted by it. Once the petitioner failed to qualify in the techno-commercial stage, it was not eligible to participate in the price discovery process started on 28.10.2017. The respondent-SAIL has acted in accordance with the terms and conditions of the aforesaid NIT/bid documents and since the petitioner failed to comply the terms of the aforesaid NIT, its techno-commercial bid was rejected. Hence, there can be no case of discrimination, arbitrariness or illegality on the part of the respondent-SAIL. It is lastly submitted that email communication sent by the petitioner on 27.09.2017 was received after finalization of the techno-commercial bid and hence the same could not have been entertained, particularly, in view of the fact that the petitioner was already informed that any clarification/confirmation with regard to the payment terms must be sent by 13.09.2017.;