Gvr Infra Projects Ltd v. Natiional Highway Authority of India and Ors

RAJIV SAHAI ENDLAW, J. SEPTEMBER 8, 2015 "bs"

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 8th September, 2015 + W.P.(C) No.2037/2012 & CM No.4421/2012 (for stay) GVR INFRA PROJECTS LTD. ..... Petitioner Through: Mr. A.D.N. Rao, Mr. A. Venkatesh and Ms. Neelam Jain, Advs. Versus NATIIONAL HIGHWAY AUTHORITY OF INDIA AND ORS ..... Respondents Through: Ms. Meenakshi Sood, Adv. for NHAI. Mr. Vikas Mahajan, CGSC with Mr. Rohan Gupta, Advs. for R-3. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This petition was filed impugning the letters dated 13th March, 2012 and 2nd April, 2012 of the respondents No.1&2 National Highways Authority of India (NHAI), (respondent No.3 is Union of India) to the petitioner notifying the petitioner that the bid submitted by it to the tender for construction of new bridges / structures, repair of existing four lane highway from Baleshwar to Kharagpur Section of NH-60 in the State of Orissa / Odhisha & West Bengal was incomplete (non-responsive) and asking the petitioner to, in terms of the tender conditions, deposit 5% of the value of the bid security i.e. Rs.23.55 lakhs with the respondent No.1 NHAI within seven days and threatening to otherwise partially encash the Bank Guarantee (BG) submitted by the petitioner along with the bid. 2. The petition was entertained and referring to the judgment dated 10th March, 2011 of the Division Bench of this Court in W.P.(C) No.8418/2010 titled M/s. Madhucon Projects Ltd. Vs. National Highways Authority of India, the encashment of BG by the respondents No.1&2 NHAI was stayed, subject to the petitioner keeping the BG submitted alive to the extent of Rs.23.55 lakhs. 3. The respondents No.1&2 NHAI has filed a counter affidavit. The order dated 19th May, 2015 records that the Special Leave Petition (SLP) preferred by the respondents No.1&2 NHAI against the judgment aforesaid in M/s. Madhucon Projects Ltd. supra was dismissed by the Supreme Court on 17th March, 2015. 4. The counsels have been heard. 5. Clause 3.2.2 of Volume No.I titled "Instruction to Bidders" of the tender documents provided for the "Tests of Responsiveness" and Clause 2.20.7(a) under the head of "Bid Security" provided for the consequence of payment of damages restricted to 5% of the value of the bid security for submitting a non-responsive bid. 6. The respondents No.1&2 NHAI vide the impugned letter dated 13th March, 2012 informed the petitioner that upon opening of the bids in the presence of the representative of the petitioner, the online bid submitted by the petitioner was found to be incomplete and vide impugned letter dated 2nd April, 2012 asked the petitioner as aforesaid to deposit 5% of the value of the bid security amounting to Rs.23.55 lakhs. 7. The counsel for the petitioner has raised two contentions. Firstly, it is contended (i) that the bid, as per the tender conditions, was required to be submitted in a hard copy as well as online; (ii) that no default was found in the bid submitted by the petitioner in the form of hard copy; (iii) though the petitioner had submitted the same bid online but the same, for reasons beyond the control of the petitioner and owing to technical glitches, remained to be received by the respondents No.1&2 NHAI; (iv) the petitioner thus cannot be said to have submitted a non-responsive bid; and, (v) that once the bids were required to be submitted in physical form as well as online, even if the bid in the online form remained non-responsive, the same was immaterial, since the same was only by way of abundant caution and the bid submitted in physical form was enough. Reliance in this regard is placed on Poddar Steel Corporation Vs. Ganesh Engineering Works (1991) 3 SCC 273 in para 6 whereof it was held that as a matter of general proposition, it cannot be said that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail and is not entitled to waive even a technical irregularity of little or no significance. 8. The second contentio