{"id":134337,"date":"2011-04-04T00:00:00","date_gmt":"2011-04-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/glodyne-technoserve-limited-vs-state-of-m-p-ors-on-4-april-2011"},"modified":"2018-04-06T02:06:16","modified_gmt":"2018-04-05T20:36:16","slug":"glodyne-technoserve-limited-vs-state-of-m-p-ors-on-4-april-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/glodyne-technoserve-limited-vs-state-of-m-p-ors-on-4-april-2011","title":{"rendered":"Glodyne Technoserve Limited vs State Of M.P.& Ors on 4 April, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Glodyne Technoserve Limited vs State Of M.P.& Ors on 4 April, 2011<\/div>\n
Author: A Kabir<\/div>\n
Bench: Altamas Kabir, Cyriac Joseph<\/div>\n
                                                   REPORTABLE\n\n\n\n\n\n            IN THE SUPREME COURT OF INDIA\n\n\n\n                 CIVIL APPELLATE JURISDICTION\n\n\n\n            CIVIL APPEAL NO.2907  OF 2011\n\n      (Arising out of S.L.P.(C)No.21899 of 2010)\n\n\n\n\n\nGlodyne Technoserve Ltd.                ...    Appellant \n\n\n\n          Vs.\n\n\n\nState of M.P. & Ors.                    ...    Respondents\n\n\n\n\n\n                     J U D G M E N T\n<\/pre>\n
ALTAMAS KABIR, J.\n<\/p>\n
1.    Leave granted.\n<\/p>\n
2.    The Appellant is a Public Limited Company which <\/p>\n
claims  to  have  an  annual  turnover  of  almost  Rs.750 <\/p>\n
                                                                                               2<\/span><\/p>\n
crores   and   has   been   carrying   out   large   scale <\/p>\n
infrastructure                      projects           for             various            State <\/p>\n
Governments   in   India,   including   Maharashtra   and <\/p>\n
Bihar,   where   bio-metrics   of   millions   of   people   are <\/p>\n
required   to   be   collected   to   ensure   identification <\/p>\n
of          the         population              which            is         targeted           as <\/p>\n
beneficiaries                  of         various           Government               Welfare <\/p>\n
Schemes,   such   as   the   National   Rural   Employment <\/p>\n
Guarantee   Scheme.     The   Appellant   Company   has   been <\/p>\n
holding   ISO   9001:2000   Certificate   for   the   highest <\/p>\n
quality   standards   in   respect   of   the   services <\/p>\n
rendered   by   it.     The   Appellant   Company   claims   to <\/p>\n
have   carried   out   a   pilot   project   in   respect   of   10 <\/p>\n
shops   in   the   State   Government   Public   Distribution <\/p>\n
System in Bhopal.\n<\/p>\n
3.         On   12th      December,   2009,   the   Government   of <\/p>\n
Madhya   Pradesh   in   the   Department   of   Food,   Civil <\/p>\n
Supplies   and   Consumer   Protection,   hereinafter <\/p>\n
referred   to   as   “FCS”,   issued   a   Request   for <\/p>\n
                                                             3<\/span><\/p>\n
Proposal, hereinafter referred to as “RFP”, for the <\/p>\n
appointment   of   a   vendor   for   District   Mechanism   for <\/p>\n
Public Distribution System, hereinafter referred to <\/p>\n
as “PDS”.  The last date for submission of bids was <\/p>\n
7th  January,   2010,   which   was   subsequently   extended <\/p>\n
till 17th February, 2010.\n<\/p>\n
4.    The RFP, as it stood at the time when the bids <\/p>\n
were   invited,   included   Section   3.1   which,  inter  <\/p>\n
alia,   provides   that   the   bidder\/one   partner   in   the <\/p>\n
consortium   must   possess   a   valid   certification   in <\/p>\n
the   Capability   Maturity   Model   (CMM   level   3   or <\/p>\n
above).     In   addition,   the   bidder\/all   partners   of <\/p>\n
consortium   (in   case   of   consortium)   should   have   an <\/p>\n
active   (valid   at   least   till   June,   2010)   ISO <\/p>\n
9001:2000   certificate   which   had   to   be   submitted   as <\/p>\n
qualifying documents.\n<\/p>\n
5.    Subsequently,   on   18th  January,   2010,   the   pre-\n<\/p>\n
qualification   (Eligibility   Criteria)   provided   in <\/p>\n
the RFP was changed and the corrigendum, as far as <\/p>\n
                                                                               4<\/span><\/p>\n
it relates to Section 3.1, was amended so that the <\/p>\n
bidder\/one partner in the consortium had to possess <\/p>\n
a   valid   certification   in   the   Capability   Maturity <\/p>\n
Model   (CMM   level   3   or   above).                  In   case   of <\/p>\n
consortium,   the   partner   developing   the   software <\/p>\n
application   should   have   CMM   level   3   certification <\/p>\n
and   the   bidder\/lead   partners   of   the   consortium   (in <\/p>\n
case of consortium, should have an active (valid at <\/p>\n
least   till   June,   2010)   ISO   9001:2000   certification <\/p>\n
at   the   time   of   submission   of   the   bid.                         The <\/p>\n
documents   to   be   submitted   along   with   the   bid <\/p>\n
remained the same.   Vide the corrigendum dated 18th <\/p>\n
January,   2010,   Section   7   which   provided   for   the <\/p>\n
Bidder Check List, was also altered.   Prior to its <\/p>\n
amendment,         Section         7.1.1         provided         that         the <\/p>\n
Company\/one   partner   in   the   consortium   (in   case   of <\/p>\n
consortium)   should   have   an   active   ISO   9001:2000 <\/p>\n
certification at the time of submission of the bid, <\/p>\n
and it was also provided that a copy of the Quality <\/p>\n
Certificate   or   documentation   of   the   quality   policy <\/p>\n
                                                               5<\/span><\/p>\n
were   required   to   be   provided   along   with   the   bid <\/p>\n
document.     It   was   also   submitted   that   in   case   the <\/p>\n
certificate   was   issued   for   renewal,   the   bidder <\/p>\n
should ensure that the renewed certificate was made <\/p>\n
available   at   the   time   of   signing   of   the   contract.\n<\/p>\n
It   was   mentioned   that   in   case   the   same   was   not <\/p>\n
provided,   the   Department   may   consider   initiating <\/p>\n
the   Award   of   the   contract   with   the   second   lowest <\/p>\n
bidder.    The  criteria  relating  to  the  documents  to <\/p>\n
be   submitted   as   qualifying   documents   included   a <\/p>\n
copy   of   the   quality   certificate\/documentation   of <\/p>\n
quality policy.  The corrigendum dated 18th January, <\/p>\n
2010,   amended   the   said   provision   to   indicate   that <\/p>\n
the   bidder\/one   partner   in   the   consortium   must <\/p>\n
possess   a   valid   certification   in   the   Capability <\/p>\n
Maturity   Model   (CMM   level   3   or   above),   in   case   of <\/p>\n
consortium   the   partner   developing   the   software <\/p>\n
application   was   required   to   have   CMM   level   3 <\/p>\n
certification.     It   was   further   stated   that   the <\/p>\n
bidder\/lead   partners   of   the   consortium   (in   case   of <\/p>\n
                                                              6<\/span><\/p>\n
consortium)   should   have   an   active   (valid   at   least <\/p>\n
till June, 2010) ISO 9001:2000 certification at the <\/p>\n
time   of   the   submission   of   the   bid.     The   documents <\/p>\n
to   be   submitted   along   with   the   bid   remained <\/p>\n
unchanged.\n<\/p>\n
6.    The   question   for   decision   in   this   case   is <\/p>\n
whether,   on   account   of   the   corrigendum   whereby   the <\/p>\n
provisions of Section 3 of the Tender documents and <\/p>\n
Section  7  of  the  Bidder’s  Check  List  were  amended, <\/p>\n
the appellant was, disqualified from consideration, <\/p>\n
in   view   of   the   fact   that   along   with   the   Tender <\/p>\n
documents   it   had   filed,   through   inadvertence   or <\/p>\n
otherwise,   a   copy   of   the   ISO   9001:2000   certificate <\/p>\n
of  the  previous  year,  instead  of  the  current  year, <\/p>\n
although,  it  did  have  the  said  valid  ISO  9001:2000 <\/p>\n
certificate at the time of making of the bid.\n<\/p>\n
7.    The   case   of   the   Appellant   depends   almost <\/p>\n
entirely   on   the   submission   that   on   the   date   of <\/p>\n
submission   of   the   Bid,   it   had   a   valid   and   active <\/p>\n
                                                             7<\/span><\/p>\n
ISO   9001:2000   certification,   but   that   through <\/p>\n
inadvertence   the   expired   certification   of   the <\/p>\n
previous   year   had   been   filed   along   with   the   bid <\/p>\n
papers.\n<\/p>\n
8.    Mr.   Harish   N.   Salve,   learned   Senior   Advocate, <\/p>\n
appearing for the Appellant Company, submitted that <\/p>\n
even   if   no   ISO   9001:2000   certification   was   filed <\/p>\n
along with the bid documents, it would have made no <\/p>\n
difference and the submission of the bid would have <\/p>\n
been   fully   valid   in   view   of   Section   7.1.1,   which <\/p>\n
consists   of   the   Bidder’s   Check   List   and   indicates <\/p>\n
what were the requirements for a valid bid and what <\/p>\n
supporting   documents   were   to   be   submitted   along <\/p>\n
with the bid papers.   Referring to Clause 9 of the <\/p>\n
aforesaid   Section,   which   deals   with   Quality <\/p>\n
Certification,   Mr.   Salve   pointed   out   that   the <\/p>\n
requirement   of   the   said   Clause   was   that   the <\/p>\n
Company\/one   of   the   partners   of   the   consortium   (in <\/p>\n
case   of   consortium)   should   have   an   active   ISO <\/p>\n
                                                                8<\/span><\/p>\n
9001:2000   certification   at   the   time   of   submission <\/p>\n
of   the   Bid.     Mr.   Salve   submitted   that   the   said <\/p>\n
condition   was   duly   satisfied   by   the   Appellant   who <\/p>\n
had   such   a   valid   and   active   ISO   9001:2000 <\/p>\n
certification when the bid documents were filed.\n<\/p>\n
9.    Mr. Salve submitted that, although, one of the <\/p>\n
conditions of the Tender document required that the <\/p>\n
Quality   Certification   and   the   documentation   of   the <\/p>\n
quality   policy   were   to   be   provided   along   with   the <\/p>\n
bid   documents   as   supporting   documents,   Clause   9 <\/p>\n
also  provided  that  in  case  the  certificate  was  due <\/p>\n
for   renewal,   the   bidder   should   ensure   that   the <\/p>\n
renewal   certificate   was   made   available   at   the   time <\/p>\n
of   signing   of   the   contract.     In   case   the   same   was <\/p>\n
not   provided,   the   department   could   consider <\/p>\n
negotiating   the   award   of   contract   with   the   second <\/p>\n
lowest   bidder.     Mr.   Salve   submitted   that   it   would <\/p>\n
be   clear   from   the   said   condition   that   it   was   not <\/p>\n
absolutely   necessary   for   the   valid   ISO   9001:2000 <\/p>\n
                                                               9<\/span><\/p>\n
certification   to   be   filed   along   with   the   bid <\/p>\n
documents   and   that   they   could   be   filed   before   the <\/p>\n
agreement   was   ultimately   signed.     Mr.   Salve   once <\/p>\n
again   reiterated   that   despite   having   such   a   valid <\/p>\n
certificate,   through   inadvertence   the   previous <\/p>\n
year’s   certificate   had   been   enclosed   with   the   bid <\/p>\n
documents.     It   was   urged   by   learned   Counsel   that <\/p>\n
this is not a case of a tenderer not having a valid <\/p>\n
certification,   as   required,   but   a   case   of   not <\/p>\n
filing   it   with   the   bid   documents,   despite   having <\/p>\n
the same.  Mr. Salve urged that in view of Clause 9 <\/p>\n
of Section 7.1.1, the Appellant’s bid documents had <\/p>\n
been   wrongly   rejected   at   the   Technical   Bid   stage, <\/p>\n
without   even   considering   the   Financial   Bid   which <\/p>\n
had been submitted by it.\n<\/p>\n
10.    In   addition   to   the   above,   Mr.   Salve   submitted <\/p>\n
that   after   the   Financial   Bids,   except   that   of   the <\/p>\n
Appellant, were opened, the Appellant came to learn <\/p>\n
that its offer was about           200 crores less than the <\/p>\n
                                                                         10<\/span><\/p>\n
second-lowest   tenderer   to   whom   the   contract   was <\/p>\n
ultimately   given   and   that   by   awarding   the   contract <\/p>\n
to  the  second  lowest  tenderer,  the  State  of  Madhya <\/p>\n
Pradesh was incurring a loss of such a huge amount.\n<\/p>\n
11.    Mr.   Salve   urged   that   the   aforesaid   position <\/p>\n
would be further strengthened from Section 3 of the <\/p>\n
Request   for   Proposal   which   contained   the   pre-\n<\/p>\n
qualification   (eligibility)   criteria   relating   to <\/p>\n
technical,         operational,         functional         and         other <\/p>\n
requirements.  Mr. Salve submitted that Clause 3 of <\/p>\n
Section 3.1 provides that the bidder\/one partner in <\/p>\n
the   consortium   must   possess   a   valid   certification <\/p>\n
in   the   Capability   Maturity   Model,   which   condition <\/p>\n
had  been  duly  satisfied,  and  that  all  the  partners <\/p>\n
of   the   consortium   (in   case   of   consortium)   should <\/p>\n
have an active (valid at least till June, 2010) ISO <\/p>\n
9001:2000   certification,   at   the   time   of   submission <\/p>\n
of   the   bid.     Mr.   Salve   submitted   that   all   those <\/p>\n
documents   to   be   submitted   as   qualifying   documents, <\/p>\n
                                                             11<\/span><\/p>\n
included   the   Quality   Certificate   and   ISO   9001:2000 <\/p>\n
certificate, and if the said condition is read with <\/p>\n
the   conditions   contained   in   Clause   9   of   Section <\/p>\n
7.1.1   of   the   RFP,   it   would   be   seen   that   the <\/p>\n
requirement   of   a   valid   ISO   9001:2000   certification <\/p>\n
on the date of submission of the Bid documents was <\/p>\n
duly satisfied in the Appellant’s case.\n<\/p>\n
12.    Mr.   Salve   also   referred   to   the   correspondence <\/p>\n
between   Shri   Naveen   Prakash,   the   representative   of <\/p>\n
the   Wipro   Consulting   Services,   which   had   been <\/p>\n
appointed   a   consultant   for   the   selection   of <\/p>\n
suitable   candidates,   and   Shri   Sandeep   R.   Chalke, <\/p>\n
who   was   the   Chief   Executive   of   QAL   International <\/p>\n
Certification   (India),   which   was   the   repository   of <\/p>\n
information   relating   to   such   certificates.     Mr. <\/p>\n
Salve pointed out that Shri Naveen Prakash had sent <\/p>\n
an   E-mail   to   Shri   Sandeep   R.   Chalke,   requesting <\/p>\n
information as to whether Glodyne Technoserve Ltd., <\/p>\n
the   Appellant   herein,   had   a   valid   ISO   9001:2000 <\/p>\n
                                                              12<\/span><\/p>\n
certificate at the relevant point of time.   It was <\/p>\n
pointed   out   that   in   reply,   Shri   Chalke   informed <\/p>\n
Shri   Naveen   Prakash   on   10th  April,   2010,   that   the <\/p>\n
certificate of the Appellant as on the current date <\/p>\n
was   active   and   valid   till   18th  November,   2010,   and <\/p>\n
would   continue   to   be   valid   thereafter   if   the <\/p>\n
reassessment   was   conducted   on   or   before   18th <\/p>\n
November,   2010.     Mr.   Salve   submitted   that   Shri <\/p>\n
Naveen   Prakash,   as   the   representative   of   the <\/p>\n
consultant,   was   present   at   every   meeting   of   the <\/p>\n
Committee   which   had   been   set   up   to   oversee   the <\/p>\n
Tender process and on the date when the Appellant’s <\/p>\n
bid   was   rejected   on   account   of   non-compliance   with <\/p>\n
Clause   9   of   Section   7.1.1   of   the   RFP,   he   had <\/p>\n
knowledge   of   the   fact   that   the   Appellant   had   a <\/p>\n
valid   and   active   ISO   9001:2000   certification   which <\/p>\n
would   expire   only   on   18th  November,   2009,   unless <\/p>\n
continued after reassessment.\n<\/p>\n
                                                            13<\/span><\/p>\n
13.    Mr. Salve referred to the affidavit affirmed by <\/p>\n
Shri   Ajit   Kesari,   the   Commissioner-cum-Director, <\/p>\n
Food,   Civil   Supplies   and   Consumer   Protection, <\/p>\n
Government   of   Madhya   Pradesh,   Bhopal,   on   8th  July, <\/p>\n
2010,   which   clearly   indicated   that   the   Respondents <\/p>\n
concerned   had   due   notice   of   the   fact   that   the <\/p>\n
Appellant   held   an   active   ISO   9001:2000   certificate <\/p>\n
which was valid till 18th November, 2009.  Mr. Salve <\/p>\n
submitted   that   the   information   received   by   Shri <\/p>\n
Naveen   Prakash   from   Shri   Sandeep   R.   Chalke   was <\/p>\n
forwarded   to   Shri   Ajit   Kesari   by   E-mail   on   4th <\/p>\n
December, 2010, although, in the affidavit affirmed <\/p>\n
by Shri Kesari it was sought to be stated that the <\/p>\n
same   had   not   been   sent   to   the   official   E-mail <\/p>\n
address of the Director, Food, Government of Madhya <\/p>\n
Pradesh,  nor  to  each  Committee  Member  and  was  sent <\/p>\n
to   his   personal   E-mail   address   for   information <\/p>\n
only.   Mr. Salve urged that whether it was sent to <\/p>\n
the   Director’s   official   E-mail   address   or   his <\/p>\n
personal E-mail address, the fact remains that Shri <\/p>\n
                                                                14<\/span><\/p>\n
Ajit Kesari had knowledge that the Appellant was in <\/p>\n
possession   of   a   valid   and   active   ISO   9001:2000 <\/p>\n
certificate   at   the   time   of   submission   of   the   Bid <\/p>\n
documents.\n<\/p>\n
14.    Mr.   Salve   also   referred   to   the   reply   of   Wipro <\/p>\n
Ltd.   to   the   writ   petition   filed   by   the   Appellant <\/p>\n
and   pointed   out   that   the   manner   and   circumstances <\/p>\n
in   which   Shri   Naveen   Prakash   had   obtained   the <\/p>\n
information that the Appellant Company held a valid <\/p>\n
ISO   9001:2000   certificate   had   been   spelt   out   in <\/p>\n
Paragraph   5   of   the   said   reply,   which   duly <\/p>\n
corroborated the fact that the same information had <\/p>\n
been passed on to Shri Kesari.\n<\/p>\n
15.    In   support   of   his   aforesaid   submissions,   Mr. <\/p>\n
Salve  firstly  referred  to  the  decision  of  a  Three-\n<\/p>\n
Judge   Bench   of   this   Court   in  Tata   Cellular  Vs. <\/p>\n
Union of India  [(1994) 6 SCC 651], which laid down <\/p>\n
certain tests in regard to the right of the Courts <\/p>\n
to   intervene   in   a   Tender   process.     This   Court, <\/p>\n
                                                                             15<\/span><\/p>\n
inter   alia,   held   that   while   the   Court   does   not <\/p>\n
normally interfere with the Government’s freedom of <\/p>\n
contract,   invitation   of   Tender   and   refusal   of   any <\/p>\n
Tender which pertain to policy matters, when such a <\/p>\n
decision   or   action   is   vitiated   by   arbitrariness, <\/p>\n
unfairness,   illegality   or   irrationality,   then   such <\/p>\n
decision can be looked into by the Court since the <\/p>\n
test   was   as   to   whether   the   wrong   was   of   such   a <\/p>\n
nature as to require intervention.  In this regard, <\/p>\n
the Court laid down the areas of scope of judicial <\/p>\n
review   in   paragraph   69   of   the   judgment.     For   the <\/p>\n
sake   of   convenience,   paragraph   69   of   the   said <\/p>\n
judgment is extracted hereinbelow :\n<\/p>\n
          “69.   A   tender   is   an   offer.   It   is <\/p>\n
          something         which         invites         and         is <\/p>\n
          communicated   to   notify   acceptance. <\/p>\n
          Broadly   stated,   the   following   are   the <\/p>\n
          requisites of a valid tender :\n<\/p><\/blockquote>\n
                1.    It must be unconditional.<\/p>\n<\/blockquote>\n
                2.    Must   be   made   at   the   proper <\/p>\n
                      place.\n<\/p><\/blockquote>\n
\n                                                                                                 16<\/span><\/p>\n<\/blockquote>\n
                   3.       Must   conform   to   the   terms   of <\/p>\n
                            obligation.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                   4.       Must   be   made   at   the   proper <\/p>\n
                            time.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                   5.       Must   be   made   in   the   proper <\/p>\n
                            form.<\/p><\/blockquote>\n
\n<\/blockquote>\n
                   6.       The   person   by   whom   the   tender <\/p>\n
                            is   made   must   be   able   and <\/p>\n
                            willing               to               perform            his <\/p>\n
                            obligations.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                   7.       There            must                 be         reasonable <\/p>\n
                            opportunity for inspection.<\/p>\n<\/blockquote>\n
                   8.       Tender   must   be   made   to   the <\/p>\n
                            proper person.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                   9.       It must be of full amount.”<\/p><\/blockquote>\n<\/blockquote>\n
16.    Mr.   Salve   urged   that   the   Bid   documents <\/p>\n
submitted   by   the   Appellant   fully   satisfy   the <\/p>\n
aforesaid          tests         and         the             rejection                of         the <\/p>\n
Appellant’s   bid   was   unlawful   and   cannot   be <\/p>\n
sustained.\n<\/p><\/blockquote>\n
17.    In   this   regard   Mr.   Salve   also   referred   to   the <\/p>\n
decision   of   this   Court   in  New   Horizons   Limited   & <\/p>\n
Anr.  Vs.  Union of India & Ors.  [(1995) 1 SCC 478], <\/p>\n
which  set  out  the  circumstances  in  which  the  Court <\/p>\n
could lift the veil to ascertain the true nature of <\/p>\n
                                                                17<\/span><\/p>\n
a decision which had been taken in order to satisfy <\/p>\n
itself   that   the   same   was   not   unjust   and   was   not <\/p>\n
opposed to the interest of revenue.\n<\/p>\n
       Reference was also made to the decision of this <\/p>\n
Court   in      Reliance   Energy   Ltd.   &   Anr.             Vs. <\/p>\n
Maharashtra   State   Road   Development   Corpn.   Ltd.   & <\/p>\n
Ors.  [(2007)   8   SCC   1],   which   was   essentially   a <\/p>\n
decision   in   regard   to   the   right   of   every <\/p>\n
participant  to  a  level  playing  field  in  respect  of <\/p>\n
Government   contracts   and   the   extent   of   judicial <\/p>\n
review by the Court under Articles 32, 226 and 136 <\/p>\n
of   the   Constitution,   in   cases   of   illegality, <\/p>\n
irrationality,           procedural         impropriety         and <\/p>\n
Wednesbury unreasonableness.\n<\/p>\n
18.    Mr.   Salve   urged   that   the   rejection   of   the <\/p>\n
Appellant’s Technical Bid for the reasons mentioned <\/p>\n
above,   was   not   supported   by   the   terms   and <\/p>\n
conditions   of   the   RFP   and   even   the   amendments <\/p>\n
effect   to   the   Bidder’s   Response   Form   containing <\/p>\n
                                                                   18<\/span><\/p>\n
Clause   7.1.1   that   was   changed   by   the   Corrigendum <\/p>\n
issued   on   18th  January,   2010,   did   not   alter   the <\/p>\n
position.         He   urged   that   the   judgment   of   the <\/p>\n
Division  Bench  of  the  High  Court,  impugned  in  this <\/p>\n
Appeal, was liable to be quashed.\n<\/p>\n
19.    Appearing for the State of Madhya Pradesh, the <\/p>\n
learned   Attorney   General   submitted   that   primarily <\/p>\n
four   issues   fall   for   the   determination   in   the <\/p>\n
present case, namely, <\/p>\n
       (i)        What   is   the   relevance   of   Section   7   of <\/p>\n
                  the   Request   For   Proposal   as   far   as <\/p>\n
                  this Court case is concerned?\n<\/p>\n
       (ii)       Does   this   case   involve   a   mere   mistake <\/p>\n
                  and   is   such   a   mistake   fatal   as   far   as <\/p>\n
                  the   Appellant’s   bid   documents   are <\/p>\n
                  concerned? <\/p>\n
\n\n\n\n       (iii)    What   is   the   significance   of   Shri   Navin \n\n\n\n                Prakash's          attempts          to         obtain \n\n\n\n<\/pre>\n
                clarification  about  the  Appellant  having <\/p>\n
                                                                                       19<\/span><\/p>\n
               a valid ISO 9001 Certificate on the date <\/p>\n
               of submission of bid documents? and<\/p>\n
       (iv)    Even         assuming             that         the         Appellant <\/p>\n
               possessed               a          valid              ISO              9001 <\/p>\n
               Certification,   was   the   same   produced <\/p>\n
               before the Respondents?\n<\/p>\n
       Referring to Clause 3.1 of the RFP relating to <\/p>\n
Pre-qualification                (Eligibility                 Criteria),              the <\/p>\n
learned   Attorney   General   submitted   that   both   the <\/p>\n
CMM   Certificate   and   the   ISO   9001:2000   Certificate <\/p>\n
were   listed   as   documents   to   be   submitted   as <\/p>\n
qualifying   documents   and   that   the   criteria   set   out <\/p>\n
in the said form would have to be read accordingly.\n<\/p>\n
In   any   event,   the   Bidder’s   Check   List   was <\/p>\n
completely   changed   by   the   Corrigendum   which   was <\/p>\n
subsequently issued.\n<\/p>\n
20.    The learned Attorney General submitted that the <\/p>\n
provisions   of   the   RFP   which   had   been   initially <\/p>\n
provided   were   subsequently   altered   which   had   the <\/p>\n
                                                                         20<\/span><\/p>\n
effect of replacing the provisions relating to Pre-\n<\/p>\n
qualification   (Criteria   Eligibility)   contained   in <\/p>\n
Section   3   of   the   Request   For   Proposal   and   Section <\/p>\n
7.1   containing   the   proforma   of   the   Bidder’s <\/p>\n
Response   Form.         The   learned   Attorney   General <\/p>\n
submitted   that   the   Appellant   could   not,   therefore, <\/p>\n
rely   any   longer   on   the   terms   and   conditions <\/p>\n
indicated   in   the   un-amended   RFP   since   the <\/p>\n
provisions of Sections 3 and 7 stood substituted by <\/p>\n
the   subsequent   Corrigendum.     In   this   regard,   the <\/p>\n
learned   Attorney   General   referred   to   the   unamended <\/p>\n
provisions   of   Section   7.1   comprising   the   Bidder’s <\/p>\n
Response   Form   wherein   in   paragraph   9,   it   has   been <\/p>\n
indicated as follows :-\n<\/p>\n
     “9.         Qualify         Certification         –         The <\/p>\n
     Company\/one   of   the   partners   of   Consortium <\/p>\n
     (in   case   of   Consortium)   should   have   an <\/p>\n
     active   ISO   9001:2000   certification   at   the <\/p>\n
     time   of   submission   of   the   bid.     A   copy   of <\/p>\n
     the   Quality   Certificate   or   documentation <\/p>\n
     of the Quality Policy needs to be provided <\/p>\n
     along   with   the   bid   document.     In   case   the <\/p>\n
     certificate is due for renewal, the bidder <\/p>\n
     should  ensure that  the renewed  certificate <\/p>\n
                                                                              21<\/span><\/p>\n
     is   made   available   at   the   time   of   signing <\/p>\n
     of   contract.     In   case   the   same   is   not <\/p>\n
     provided,   the   Department   may   consider <\/p>\n
     negotiating the award of contract with the <\/p>\n
     L2 bidder.”\n<\/p>\n
     The   aforesaid   paragraph   indicates   that   a   copy <\/p>\n
of   the   Quality   Certificate\/document   of   quality <\/p>\n
policy   would   have   to   be   submitted   along   with   the <\/p>\n
bid documents, with the relaxation that in case the <\/p>\n
quality certificate was due for renewal, the bidder <\/p>\n
should ensure that the renewed certificate was made <\/p>\n
available   at   the   time   of   signing   of   the   contract.\n<\/p>\n
The   learned   Attorney   General   submitted   that <\/p>\n
although a good deal of reliance had been placed by <\/p>\n
Mr.   Salve   on   the   said   provisions,   the   same   was <\/p>\n
altered   by   the   first   corrigendum,   which   in <\/p>\n
paragraph   8   of   the   Bidder   Information   Sheet <\/p>\n
indicates as follows :-\n<\/p>\n
     “8.    Bidder         should         have         active         ISO <\/p>\n
     9001:2000   Certification   at   the   time   of <\/p>\n
     submission   of   Bids.                  Copies   of   the <\/p>\n
     certificates or briefs on Quality policy & <\/p>\n
     System being followed to be provided.\n<\/p>\n
                                                                                    22<\/span><\/p>\n
       In   case   the   certificate   is   due   for <\/p>\n
       renewal, the bidder should ensure that the <\/p>\n
       renewed   certificate   is   made   available   at <\/p>\n
       the time of signing the contract.   In case <\/p>\n
       the   same   is   not   provided,   the   Department <\/p>\n
       may   consider   negotiating   the   award   of <\/p>\n
       contract with the L2 Bidder.”\n<\/p>\n
21.    The   learned   Attorney   General   then   contended <\/p>\n
that   even   the   said   provision   was   replaced   by   a <\/p>\n
fresh   corrigendum,   wherein   in   paragraph   3   of   the <\/p>\n
provision relating to “Turnover” it was differently <\/p>\n
provided as follows:-\n<\/p>\n
       \"3.    The         Bidder\/one             partner         in         the \n\n       consortium              must         possess         a          valid \n\n<\/pre>\n
       Certification   in   the   Capability   Maturity <\/p>\n
       Model   (CMM   Level   3   or   above).     In   case   of <\/p>\n
       consortium,   the   partner   developing   the <\/p>\n
       Software  Application should  have CMM  Level <\/p>\n
       3  Certification.    The Bidder\/Lead  Partners <\/p>\n
       of   consortium   (in   case   of   Consortium) <\/p>\n
       should have an active (valid at least till <\/p>\n
       June   2010)   ISO   9001:2000   certification   at <\/p>\n
       the time of submission of the bid.”\n<\/p>\n
22.    The   learned   Attorney   General   urged   that   once <\/p>\n
the   provisions   relating   to   the   Bidder’s   Response <\/p>\n
Form   contained   in   Section   7.1   stood   substituted   by <\/p>\n
                                                               23<\/span><\/p>\n
the   Corrigendum   and   the   provision   relating   to <\/p>\n
Quality   Certification   stood   altered   omitting   the <\/p>\n
relaxation given regarding filing of documents with <\/p>\n
the   tender   papers,   it   was   no   longer   open   to   the <\/p>\n
Appellants to rely on the unamended Form.\n<\/p>\n
23.    The   learned   Attorney   General   also   submitted <\/p>\n
that   Shri   Navin   Prakash   had   collected   the <\/p>\n
information regarding the ISO 9001 Certification of <\/p>\n
the Appellant Company on his private initiative and <\/p>\n
not   under   the   instructions   of   the   Tender   Advisory <\/p>\n
Committee.     Furthermore,   the   said   information   was <\/p>\n
not   divulged   by   him   at   the   meeting   which   was   held <\/p>\n
at   2.15   p.m.   on   the   same   day   when   the   said <\/p>\n
information   was   received.             Referring   to   the <\/p>\n
Disqualification   Clause   contained   in   paragraph <\/p>\n
4.11.6   in   the   Request   For   Proposal,   the   learned <\/p>\n
Attorney   General   pointed   out   that   the   proposal   of <\/p>\n
the bidder was liable to be disqualified if,  inter  <\/p>\n
alia,   the   bid   received   from   him   was   in   incomplete <\/p>\n
                                                                 24<\/span><\/p>\n
form  or  not  accompanied  by  the  bid  security  amount <\/p>\n
or by all requisite documents.  He also referred to <\/p>\n
paragraph   5.2   under   Section   5   which   deals   with <\/p>\n
proposal   evaluation   and   lays   special   emphasis   on <\/p>\n
the provisions under technical evaluation which set <\/p>\n
out   that   the   said   bid   would   be   rejected   if   it   did <\/p>\n
not   meet   the   pre-qualification   criteria.                The <\/p>\n
learned   Attorney   General   submitted   that   there   was <\/p>\n
no   provision   at   the   time   of   technical   evaluation <\/p>\n
for relaxation of the pre-qualification criteria.\n<\/p>\n
24.    In   support   of   his   aforesaid   submission,   the <\/p>\n
learned   Attorney   General   firstly   referred   to   the <\/p>\n
decision   of   a   Three-Judge   bench   of   this   Court   in <\/p>\n
Siemens   Public   Communication   Network   Pvt.   Ltd.  vs. <\/p>\n
Union of India & Ors.  [(2008) 16 SCC 215], wherein <\/p>\n
while   considering   the   decision   making   process   of <\/p>\n
the   Government   or   its   instrumentality   in   awarding <\/p>\n
contracts,   it   was   held   that   such   process   should <\/p>\n
exclude the remotest possibility of discrimination, <\/p>\n
                                                              25<\/span><\/p>\n
arbitrariness   and   favouritism   and   the   same   should <\/p>\n
be   transparent,   fair,   bona   fide   and   in   public <\/p>\n
interest.  It was also held that it is not possible <\/p>\n
to  re-write  entries  in  bid  documents  and  read  into <\/p>\n
the bid documents terms that did not exist therein.\n<\/p>\n
25.    Reference was also made to another decision of <\/p>\n
this Court in Ram Gajadhar Nishad vs. State of U.P.\n<\/p>\n
[(1990)   2   SCC   486],   wherein   it   was   held   that   the <\/p>\n
effect   of   non-compliance   of   a   mandatory   condition <\/p>\n
in a Tender notice was fatal and the fact that the <\/p>\n
Appellant’s Tender was not opened, accordingly, did <\/p>\n
not  call  for  interference  under  Article  136  of  the <\/p>\n
Constitution.\n<\/p>\n
26.    The learned Attorney General lastly referred to <\/p>\n
the   decision   in  Sorath   Builders  vs.  Shreejikrupa <\/p>\n
Buildcon   Ltd.   &   Anr.<\/a>  [(2009)   11   SCC   9],   where <\/p>\n
similar views had been expressed in relation to the <\/p>\n
acceptance of the lowest bid by the Respondent No.2 <\/p>\n
University,   despite   the   fact   that   such   bidder   had <\/p>\n
                                                              26<\/span><\/p>\n
failed   to   furnish   pre-qualification   documents <\/p>\n
within   the   specified   time.     This   Court   held   that <\/p>\n
the   judgment   of   the   High   Court   setting   aside   the <\/p>\n
decision of the University was improper as the said <\/p>\n
tenderer   was   itself   to   blame   as   it   was   late   in <\/p>\n
submitting the required documents by three days and <\/p>\n
the Respondent No.2 University was justified in not <\/p>\n
opening   the   tender   submitted   by   it.     This   Court <\/p>\n
observed   that   the   lowest   tenderer   could   not   make <\/p>\n
any   grievance   as   the   lapse   was   due   to   his   own <\/p>\n
fault.        This   Court   noticed   that   of   the   three <\/p>\n
bidders who had responded to the tender notice, one <\/p>\n
stood   disqualified   at   the   threshold   and   the   lowest <\/p>\n
tenderer   stood   disqualified   for   having   filed   the <\/p>\n
requisite   documents   three   days   late.     In   effect, <\/p>\n
the   Appellant   in   the   said   case   ultimately   turned <\/p>\n
out   to   be   sole   bidder   and   his   bid   was   accepted, <\/p>\n
being the lowest among all the eligible bids.\n<\/p>\n
                                                                                  27<\/span><\/p>\n
27.    Referring to the decision in the  Tata Cellular <\/p>\n
case   (supra),   cited   on   behalf   of   the   Appellant <\/p>\n
Company,   the   learned   Attorney   General   pointed   out <\/p>\n
that the said case was not a case of omission, but <\/p>\n
of   breach   of   the   mandatory   condition   of   filing <\/p>\n
certain documents which were required to be filed.\n<\/p>\n
28.    The learned Attorney General submitted that the <\/p>\n
order   of   the   High   Court   impugned   in   the   present <\/p>\n
appeal   did   not   suffer   from   any   infirmity   which <\/p>\n
required any interference by this Court.\n<\/p>\n
29.    The   submissions   made   by   the   learned   Attorney <\/p>\n
       General   were   reiterated   by   Mr.   Paras   Kuhad, <\/p>\n
       appearing         for         the         Respondent         No.4,         HCL <\/p>\n
       Construction   Ltd,   which   was   impleaded   as   a <\/p>\n
       Respondent   by   this   Court   on   3rd  August,   2010.\n<\/p>\n
       Mr.   Kuhad   submitted   that   having   regard   to   the <\/p>\n
       fact   that   a   Corrigendum   had   been   issued   by <\/p>\n
       which the provisions of paragraphs 3.1 and 7.1 <\/p>\n
       had   been   completely   substituted,   it   was   no <\/p>\n
                                                                                        28<\/span><\/p>\n
       longer open to the Appellant to place reliance <\/p>\n
       on the same since the said provisions no longer <\/p>\n
       existed.               Mr.   Kuhad   contended   that   the <\/p>\n
       submissions   made   on   behalf   of   the   Appellant <\/p>\n
       Company   with   regard   to   the   conditions   in   the <\/p>\n
       Bidder’s   Response   Form   and   the   Bidder’s   Check <\/p>\n
       List,   as   it   stood   prior   to   the   Corrigendum <\/p>\n
       having been issued, was devoid of substance and <\/p>\n
       the same had been made only to be rejected.\n<\/p>\n
30.    Mr.   Kuhad   pointed   out   that   once   the   work   had <\/p>\n
been entrusted to the Respondent No.4, it had taken <\/p>\n
various         steps            in         establishing           the             District <\/p>\n
Mechanism   for   Public   Distribution   System   in   Madhya <\/p>\n
Pradesh.     It   was   urged   that   in   that   regard   steps <\/p>\n
had   been   taken   for   Data   Digitization   Application <\/p>\n
Development,   Preparation   of   Pre-Enrolment   Data, <\/p>\n
Training             and          Certification               of              Operators, <\/p>\n
Establishment               of         Enrolment         Camps,               Biometric <\/p>\n
Enrolment   of   Beneficiaries,   Data   Transfer   to   UID, <\/p>\n
                                                                                29<\/span><\/p>\n
Generation of Aadhaar\/UID Number and Mapping of EID <\/p>\n
number   to   UID   number.   Mr.   Kuhad   urged   that   the <\/p>\n
steps which were yet to be completed related to the <\/p>\n
loading   of   the   data   to   the   server   and   for <\/p>\n
preparation of the Ration Cards and for issuance of <\/p>\n
the   same   and   also   Food   Coupons   printing   and <\/p>\n
distribution          and         retrieval         thereof.         It         was <\/p>\n
submitted  that  at  this  advanced  stage,  it  would  be <\/p>\n
highly   inequitable   if   the   public   distribution <\/p>\n
supply   project   in   Madhya   Pradesh   was   interfered <\/p>\n
with.\n<\/p>\n
31.    Replying   to   the   submissions   made   on   behalf   of <\/p>\n
the   Respondents,   Mr.   Shyam   Divan,   learned   Senior <\/p>\n
Advocate,   urged   that   the   Corrigendum   which   was <\/p>\n
issued by the Respondents was not a replacement, as <\/p>\n
had   been   contended   both   by   the   learned   Attorney <\/p>\n
General   as   well   as   Mr.   Kuhad,   but   an   addition   to <\/p>\n
what   was   already   in   existence.     Mr.   Shyam   Divan <\/p>\n
reiterated   the   submissions   made   by   Mr.   Salve   that <\/p>\n
                                                              30<\/span><\/p>\n
the   clause   relating   to   filing   of   certificate   of <\/p>\n
registration   even   at   the   stage   of   signing   of   the <\/p>\n
agreement   was   valid   and   capable   of   being   acted <\/p>\n
upon.     Mr.   Divan   contended   that   the   only   change <\/p>\n
which  was  effected  by  the  Corrigendum  in  regard  to <\/p>\n
the   Bidder’s   response   clearly   indicated   that   the <\/p>\n
Corrigendum   related   only   to   the   introduction   of <\/p>\n
Lead   Partners   in   case   of   Consortium   and   that   in <\/p>\n
case   of   a   Consortium,   the   partner   developing   the <\/p>\n
software   application   should   have   CMM   Level   3 <\/p>\n
Certification.  It was submitted that in any event, <\/p>\n
in the absence of clarity, the benefit should go to <\/p>\n
the   Appellant   and   its   bid   ought   not   to   have   been <\/p>\n
rejected at the Technical bid stage.\n<\/p>\n
32.    Having   considered   the   submissions   made   on <\/p>\n
behalf   of   the   respective   parties,   we   are   inclined <\/p>\n
to   accept   the   submissions   made   by   the   Attorney <\/p>\n
General   that   the   introduction   of   the   Corrigendum <\/p>\n
completely   changed   the   provision   in   the   Bidder’s <\/p>\n
                                                                 31<\/span><\/p>\n
Response Form relating to submission of the Quality <\/p>\n
Certificate  in  the  form  of  an  active  ISO  9001:2000 <\/p>\n
certification.   In   any   event,   the   appellant’s <\/p>\n
contention   based   on   clause   9   of   Section   7.1.1   of <\/p>\n
the   RFP   as   it   stood   prior   to   corrigendum   is <\/p>\n
misconceived.   The   said   clause   9   specifically <\/p>\n
provided:\n<\/p>\n
     “…..A   copy   of   the   Quality   certificate   or <\/p>\n
     documentation of the Quality policy needs to be <\/p>\n
     provided along with the bid document.   In case <\/p>\n
     the certificate is due for renewal, the bidder <\/p>\n
     should   ensure   that   the   renewed   certificate   is <\/p>\n
     made   available   at   the   time   of   signing   of <\/p>\n
     contract.     In   case   the   same   is   not   provided, <\/p>\n
     the   Department   may   consider   negotiating   the <\/p>\n
     award of contract with the L2 bidder.”\n<\/p><\/blockquote>\n
The   above   provision   obliges   a   tenderer   to   produce <\/p>\n
along   with   the   bid   document   a   copy   of   the   Quality <\/p>\n
certificate   which   is   valid   and   active   on   the   date <\/p>\n
of   submission   of   the   bid   and   it   does   not   enable   a <\/p>\n
bidder   to   withhold   the   copy   of   such   Quality <\/p>\n
Certificate.  Where the Quality certificate will be <\/p>\n
expiring shortly and is due for renewal, the bidder <\/p>\n
                                                               32<\/span><\/p>\n
is   also   obliged   to   produce   the   renewed   certificate <\/p>\n
at   the   time   of   signing   of   the   contract.   The <\/p>\n
appellant   claimed   to   have   a   valid   and   active   ISO <\/p>\n
9001:2000 certificate at the time  of submission of <\/p>\n
the   bid,   but   did   not   produce   a   copy   of   the   said <\/p>\n
certificate along with the bid document.\n<\/p>\n
33.    The submissions made on behalf of the Appellant <\/p>\n
proceeds  on  the  basis  that  it  was  entitled,  almost <\/p>\n
as   a   matter   of   right,   not   to   submit   the   documents <\/p>\n
required   to   be   submitted   along   with   the   bid <\/p>\n
documents   on   the   supposition   that,   even   if   such <\/p>\n
documents   were   valid   and   active,   they   could   be <\/p>\n
submitted  at  the  time  of  signing  of  the  Memorandum <\/p>\n
of   Understanding.     The   Appellant   had   a   valid   and <\/p>\n
active ISO 9001:2000 certification which it did not <\/p>\n
submit along with the Bid documents, may be due to <\/p>\n
inadvertence,   but   whether   such   explanation   was   to <\/p>\n
be   accepted   or   not   lay   within   the   discretionary <\/p>\n
powers   of   the   authority   inviting   the   bids.     The <\/p>\n
                                                              33<\/span><\/p>\n
decision   taken   to   reject   the   Technical   Bid   of   the <\/p>\n
Appellant   cannot   be   said   to   be   perverse   or <\/p>\n
arbitrary.     We   need   not   refer   to   the   decisions <\/p>\n
cited   by   the   learned   Attorney   General   or   the <\/p>\n
Appellant   in   this   regard,   as   the   principles <\/p>\n
enunciated therein are well-established.\n<\/p>\n
34.    Even   the   question   as   to   whether   Shri   Naveen <\/p>\n
Prakash   of   the   consultant   agency   had   obtained <\/p>\n
information   that   the   Appellant   had   a   valid   and <\/p>\n
active   ISO   9001:2000   certification   and   had   passed <\/p>\n
on   such   information   to   Shri   Kesari,   does   not   make <\/p>\n
any  difference,  since  the  same  was  never  asked  for <\/p>\n
or   placed   before   the   Tender   Advisory   Committee <\/p>\n
constituted   for   the   purpose   of   scrutinizing   the <\/p>\n
Bids despite the presence of Shri Naveen Prakash at <\/p>\n
the meeting of the Advisory Committee at  2.15 p.m. <\/p>\n
on the same day.\n<\/p>\n
                                                            34<\/span><\/p>\n
35.    We   are   not,   therefore,   inclined   to   entertain <\/p>\n
the   appeal,   which   is   dismissed,   but   without   any <\/p>\n
order as to costs.\n<\/p>\n
                                         …………………………………………J.\n<\/p>\n
                                             (ALTAMAS KABIR)<\/p>\n
                                         …………………………………………J.\n<\/p>\n
                                             (CYRIAC JOSEPH)<\/p>\n
New Delhi<\/p>\n
Dated: 4.4.2011<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Glodyne Technoserve Limited vs State Of M.P.& Ors on 4 April, 2011 Author: A Kabir Bench: Altamas Kabir, Cyriac Joseph REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2907 OF 2011 (Arising out of S.L.P.(C)No.21899 of 2010) Glodyne Technoserve Ltd. … Appellant Vs. State of M.P. & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-134337","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGlodyne Technoserve Limited vs State Of M.P.& Ors on 4 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/glodyne-technoserve-limited-vs-state-of-m-p-ors-on-4-april-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Glodyne Technoserve Limited vs State Of M.P.& Ors on 4 April, 2011 - 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