Jarpal- Jpw- Dmc vs. The Union Of INDIA And 5 Ors

Held

The Court held that the petitioner's technical bid was rightly rejected on both grounds. Firstly, the Local Content (Make in India) Certificate, dated August 17, 2024, was submitted after the tender submission deadline of August 5, 2024. Clause 19.2(II)(B) of the ATC explicitly states that shortfall information/documents must pre-exist the tender opening date and should not have undergone any change. The submitted certificate did not meet this requirement. Secondly, the Joint Venture Consortium Agreement submitted by the petitioner was not in the format prescribed in Annexure-II of the ATC. The Tender Committee minutes clearly indicated the discrepancies and the petitioner's failure to provide the required clarification. The Court relied on Supreme Court precedents, such as N.G. Projects Ltd. and Afcons Infrastructure Ltd., which establish that the employer is the best interpreter of tender documents and that courts should not interfere with the employer's interpretation unless there is evidence of malafide, arbitrariness, or perversity. The Court found no such grounds in this case. Furthermore, Clause 15(c) of the ATC, which was not challenged, mandates unconditional acceptance of all terms and conditions, and no conditional bids are allowed. Therefore, the Court found no reason to interfere with the decision of the State respondents.

Facts

The petitioner, JARPAL-JPW-DMC, a consortium, filed a writ petition challenging the rejection of its technical bid for hiring HEMM for coal extraction and transportation. The rejection was based on two grounds: first, a Local Content (Make in India) Certificate submitted as clarification on August 17, 2024, was dated after the tender submission deadline of August 5, 2024, and thus did not pre-exist the tender opening as required by Clause 19.2(II)(B) of the Additional Terms & Conditions (ATC). Second, the Joint Venture Consortium Agreement submitted in response to a clarification request was not in the format prescribed in Annexure-II of the ATC. The petitioner argued that the clarification was sought and provided within the stipulated time, and the consortium agreement substantially met the requirements.

Key Issues

1. Whether the Local Content (Make in India) Certificate, submitted on August 17, 2024, as a clarification to a request made on August 16, 2024, was validly submitted under Clause 19.2(II)(B) of the Additional Terms & Conditions (ATC), which requires shortfall information/documents to pre-exist the tender opening date and not undergo changes since then. 2. Whether the Joint Venture Consortium Agreement submitted by the petitioner was in consonance with the format provided in Annexure-II of the ATC, and if not, whether this constituted a failure to meet eligibility criteria as per the Notice Inviting Tender (NIT). Petitioner's arguments: The petitioner contended that the clarification was sought and provided within the stipulated seven-day period for re-submission, and the certificate was a response to a specific request. Regarding the consortium agreement, the petitioner argued that it substantially complied with the requirements, and any minor deviation should not lead to disqualification. The petitioner relied on the principle that clarifications should be allowed to facilitate participation. Revenue/State's arguments: The State respondents argued that the Local Content Certificate was invalid as it was dated after the tender submission deadline and did not pre-exist the tender opening, violating Clause 19.2(II)(B). They also argued that the consortium agreement did not adhere to the prescribed format in Annexure-II of the ATC, thus failing to meet the eligibility criteria. The respondents cited Supreme Court judgments in N.G. Projects Ltd. and Afcons Infrastructure Ltd. to assert that the employer is the best interpreter of tender documents and courts should defer to their interpretation unless there is malafide or perversity.