M/S Laxyo Energy LTD. vs. Union Of INDIA And Ors.

Held

The Court held that the petitioner's online payment of Rs. 11,800/- did not satisfy the NIT's requirement for a demand draft of Rs. 10,000/- towards the cost of tender documents payable to respondent No. 2. The receipt for the online payment clearly indicated it was an 'ETS Bidding Fee' payable to the service provider, not to respondent No. 2, and was for a different sum. The NIT explicitly required the submission of the demand draft, both physically and as a scanned copy online, which the petitioner failed to do. The Court found no merit in the petitioner's argument that the online process lacked a clear prompt for the demand draft, noting that the scanned copy of the demand draft was a required document for online submission. The Court also observed that the petitioner had not sought any clarification from the respondents regarding its doubts. The Standing Tender Committee's decision to reject the petitioner's request, relying on the NIT clauses and the compliance of other bidders, was found to be neither arbitrary nor illegal. Therefore, the writ petition was dismissed.

Facts

The petitioner, M/s Laxyo Energy Ltd., challenged the rejection of its e-tender bid by respondent No. 2 (WAPCOS Limited) for tender No. WAP/WRD/GOR/2018-19/01, dated 11.10.2018. The rejection was based on the petitioner's failure to submit a demand draft of Rs. 10,000/- towards the cost of tender documents, as stipulated in the Notice Inviting Tender (NIT). The petitioner contended that it made an online payment of Rs. 11,800/- (inclusive of GST) to the e-tendering system portal, which it believed satisfied the requirement for the tender fee. It argued that there was no separate requirement to furnish details of the demand draft for the tender fee during the online bid submission, unlike for the Earnest Money Deposit (EMD). The respondents countered that the online payment was a bid submission fee to the portal, distinct from the Rs. 10,000/- payable to respondent No. 2 as tender cost, and that other bidders had complied with the NIT.

Key Issues

1. Whether the petitioner's online payment of Rs. 11,800/- to the e-tendering portal satisfied the NIT requirement of submitting a demand draft of Rs. 10,000/- towards the cost of tender documents, as stipulated in Clause 6 of the NIT and Clause 1.7 and 4.0 of Section II of the NIT, thereby rendering the rejection of its bid arbitrary and illegal under Article 226 of the Constitution. Petitioner's arguments: The petitioner argued that the online payment it made was intended to fulfill the tender fee requirement, and the NIT did not clearly distinguish between an online payment gateway fee and the tender cost payable by demand draft. It also contended that the online submission process did not explicitly require a scanned copy of the demand draft for the tender fee, unlike for the EMD. Respondents' arguments: The respondents argued that the NIT clearly mandated a demand draft for the tender cost payable to respondent No. 2, which was distinct from the online payment made to the e-tendering portal as a bid submission fee. They asserted that the online payment was for a different amount (Rs. 11,800/- including GST) and to a different entity (the portal service provider), and that the petitioner had not sought any clarification regarding the perceived ambiguity.