{"id":35733,"date":"2001-01-15T00:00:00","date_gmt":"2001-01-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/west-bengal-state-electricity-vs-patel-engineering-co-ltd-ors-on-15-january-2001"},"modified":"2015-12-14T21:43:48","modified_gmt":"2015-12-14T16:13:48","slug":"west-bengal-state-electricity-vs-patel-engineering-co-ltd-ors-on-15-january-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/west-bengal-state-electricity-vs-patel-engineering-co-ltd-ors-on-15-january-2001","title":{"rendered":"West Bengal State Electricity … vs Patel Engineering Co. Ltd. & Ors on 15 January, 2001"},"content":{"rendered":"
Supreme Court of India<\/div>\n
West Bengal State Electricity … vs Patel Engineering Co. Ltd. & Ors on 15 January, 2001<\/div>\n
Author: S S Quadri<\/div>\n
Bench: S.S.M.Quadri, S.N.Phukan<\/div>\n
           CASE NO.:\nAppeal (civil) 4921  of  2000\n\n\n\nPETITIONER:\nWEST BENGAL STATE ELECTRICITY BOARD\n\n\tVs.\n\nRESPONDENT:\nPATEL ENGINEERING CO.  LTD.  & ORS.\n\nDATE OF JUDGMENT:\t15\/01\/2001\n\nBENCH:\nS.S.M.Quadri, S.N.Phukan\n\n\n\n\nJUDGMENT:\n<\/pre>\n
L…..I………T…….T…….T…….T…….T…….T..J<\/p>\n
      J U D G M E N T<\/p>\n
      Syed Shah Mohammed Quadri, J.\n<\/p>\n
      This appeal by the West Bengal State Electricity Board
\nis  from the common judgment of a Division Bench of the High
\nCourt at Calcutta in M.A.T.  No.398 of 2000, C.A.N.  No.1089
\nof  2000  and M.A.T.  No.523 of 2000 with  cross  objections
\n(C.O.T.\t  No.522 of 2000) dated April 4, 2000 dismissing the
\nappeals and cross objections and confirming the order of the
\nlearned\t Single\t Judge\tin  W.P.No.22458(W)  of\t 1999  dated
\nFebruary  3,  2000.  To appreciate the controversy  in\tthis
\ncase  narration\t of  the following relevant  facts  will  be
\nnecessary.   As a pragmatic solution to meet the peak demand
\nof  the energy\/power by the West Bengal and also to cater to
\nthe  requirements  of  the entire Eastern Region,  the\tWest
\nBengal\tState Electricity Board (for short, the appellant)
\nformulated  Purulia  Pumped Storage Project (for  short,
\nthe  Project),\tat an estimated cost of\t about\tRs.3,188.9
\ncrores\twith an installed capacity of 900 M.W.\tFor  funding
\nthat  project  the  Central Government entered into  a\tloan
\nagreement  with\t the Overseas Economic Cooperative Fund\t now
\nJapan  Bank  of International Cooperation (for\tshort,\tthe
\nJ.B.I.C.).   The Project is proposed to be completed in six
\nLots  of  which Lot No.4 relates to main civil\tworks.\t For
\ncarrying  out  the  work of Lot No.4, the  appellant,  after
\ncomplying  with the formalities and after satisfying  itself
\nof  the\t pre- qualification of the bidders, invited  revised
\ntenders\t (hereinafter  referred to as, the tenders).   The
\nbids  were  to\tbe submitted on or before  April  27,  1998.
\nThree bidders are now in fray.\tThe first is a consortium of
\nfour  companies (respondent Nos.1 to 4), the second is\tM\/s.
\nTaisei\tCorporation (respondent No.10) and the third is M\/s.
\nSkanska\t International\t(respondent No.11).  They  submitted
\ntheir  bids  along  with  the summary  sheets  thereof.\t  On
\nSeptember  8,  1999 the bids were opened in the presence  of
\nthe  representatives of the bidders and they were read\tout;
\nthe  bid  of respondent Nos.1 to 4 was Rs.647.90 crores,  of
\nrespondent  No.11  was\tRs.691.22 crores and  of  respondent
\nNo.10  was 726.50 crores.  While the details of the bid were
\nunder scrutiny, by letter dated October 25, 1999, respondent
\nNos.1  to  4  informed\tthe appellant  that  there  was\t a
\nrepetitive  systematic\tcomputer typographical\ttransmission
\nfailure\t and requested that it be corrected.  On  December
\n17,  1999  they\t sent another letter stating that  they\t had
\nreason\tto  believe that the appellant was evaluating  their
\nprice  bid by an illogical and incorrect application of\t the
\nInstructions  To Bidders (for short, the ITB) and  pointed
\nout  that  the mistake indicated in their letter of  October
\n25, 1999 was that Indian Rupee unit rate stated in the first
\nline Item 0.2 was repeated in the next two succeeding lines,
\nwhich  is  clerical in nature and not an  arithmetic  error.
\nThey  emphasised that their bid was the lowest at  Rs.647.90
\ncrores\tand  assured that they would maintain the  said\t bid
\nprice.\tUnder the ITB, the appellant evaluated their bid and
\non  December 18, 1999 informed them that during checking  of
\ntheir  bid documents a good number of arithmetic errors\t was
\ndiscovered.   Copies  of  duly\t corrected  documents\twere
\ncommunicated  to the said respondents for their response  to
\nbe sent in writing to the appellant before December 27, 1999
\n(1700  IST).  A caveat was also entered that the said letter
\ndid not provide any confirmation towards acceptance of their
\nbid  and  subsequent  award of contract\t by  the  appellant.
\nChallenging the validity of the said letter of the appellant
\ndated  December\t 18, 1999, respondent Nos.1 to 4  filed\t the
\naforementioned\twrit petition in the High Court at Calcutta.
\nOn  December  21,  1999 a learned Single Judge of  the\tHigh
\nCourt  granted\tan  interim direction to  the  appellant  to
\nconsider the representation which would be made to it by the
\nwrit  petitioners (respondent Nos.1 to 4).  A representation
\nwas  accordingly made to the appellant on December 23, 1999,
\nwhich  was  decided  by\t the  Evaluation  Committee  of\t the
\nappellant  on  January 6, 2000.\t The decision taken  by\t the
\nappellant  pursuant  to\t the order of the High\tCourt  dated
\nDecember 21, 1999 did not meet with the approval of the High
\nCourt.\t On  February 3, 2000, while disposing of  the\twrit
\npetition,  a learned Single Judge of the High Court directed
\nthe appellant to reconsider the representation of respondent
\nNos.1  to  4, after giving hearing to them, and to pass\t and
\ncommunicate  a reasoned order within one week from the\tdate
\nof  the order.\tAgainst the said order of the learned Single
\nJudge,\tthe aforementioned appeals and cross-objections were
\nfiled  both by the appellant as well as by respondent  Nos.1
\nto  4.\t A Division Bench of the High Court at Calcutta,  by
\nthe  impugned common judgment, dismissed the appeals and the
\ncross-objections  upholding the order of the learned  Single
\nJudge,\tdirected the appellant to permit respondent Nos.1 to
\n4  to  correct\tthe  errors in the bid\tdocuments  and\tthen
\nconsider  their\t bid  along with the other bids and  take  a
\ndecision  objectively and rationally.  Mr.  Altaf Ahmed, the
\nlearned\t Additional  Solicitor\tGeneral, appearing  for\t the
\nappellant,  has submitted that the appellant is bound by the
\nITB  and it acted accordingly.\tThe letter dated October 25,
\n1999 of respondent Nos.1 to 4 did not indicate the errors in
\nthe  bid documents and the correction sought by them.\tEven
\ntheir  letter  of December 17, 1999 did not specify  in\t any
\ndetail\tthe  desired corrections, therefore,  the  appellant
\nproceeded  to evaluate the bid in terms of ITB.\t The  actual
\nscope  of correction sought by respondent Nos.1 to 4 came to
\nlight in their representation dated December 23, 1999, filed
\nafter  approaching the High Court.  The appellant, submitted
\nthe learned Additional Solicitor General, committed no wrong
\nin  rejecting  the  representation  as\t the  same  was\t not
\nacceptable  in terms of Clause 29 of the ITB because neither
\nthe  unit  rate\t can  be changed nor the price\tbid  can  be
\naltered\t at the request of the bidder;\tthe unit rate quoted
\nis  final  and\tthe appellant can  correct  only  arithmetic
\nmistakes  in the line total on the basis of the quoted\tunit
\nrate.\t Mr.Ashok  H.Desai,  the   learned  senior   counsel
\nappearing  for respondent No.11, argued that the  resolution
\nof  the appellant rejecting the representation on January 6,
\n2000  was  in accordance with Clause 29.1(b) of the ITB\t and
\nthat  there was no case for interference by the High  Court.
\nThe  decision  of  the\tappellant   in\tevaluating  the\t bid
\ndocuments  in  terms of ITB, submitted the learned  counsel,
\ncould  not  be\ttermed\tas arbitrary  or  illegal;   in\t the
\nexample:  A x B = C;  B being the quantity for which the bid
\nis  offered;  A and C being the unit rate and the result  of
\nthe  multiplication  respectively,  are unalterable  at\t the
\ninstance of the bidder.\t If any arithmetic error in arriving
\nat  the\t line total is noticed by the appellant, that  alone
\ncould  be  corrected by it.  But, the correction  sought  by
\nrespondent  Nos.1  to 4, was in effect a change in the\tunit
\nrate which was impermissible and, therefore, the decision of
\nthe  appellant\tcould not have been interfered with  by\t the
\nHigh  Court.  Mr.Bhaskar P.Gupta, the learned senior counsel
\nappearing for respondent No.10, submitted that the unit rate
\ngiven  by respondent Nos.1 to 4 was an essential term  which
\nwould  be evident from Clauses 14, 27 and 29 of the ITB,  so
\npermitting  them  to  correct the bid  would  tantamount  to
\nmodifying the essential term of the bid and as such the High
\nCourt  ought  not to have directed the appellant  to  permit
\ncorrection  of\tbid documents and further to consider  their
\nbid  along  with  the  other  bids.   Mr.P.Chidambaram,\t the
\nlearned\t senior counsel appearing for respondent Nos.1 to 4,
\nargued that in Annexures 1 to 9 which comprised of 749 items
\nthere were mistakes in only 37 items due to the fault of the
\ncomputer;   the nature of mistake was not arithmetic  (which
\nwould  mean  in multiplication or addition) but\t mechanical,
\nattributable  to the computer and that such mistakes are not
\ncovered by Clause 29 of the ITB;  in a case of an unintended
\nmistake,  a court of equity would not be a silent  spectator
\nand  the  High Court, being both a court of law and  equity,
\nhad  rightly directed the appellant to permit correction  of
\nthe  mistakes  by respondent Nos.1 to 4.  It  was  submitted
\nthat  having  regard  to  the nature of\t the  mistakes,\t the
\nappellant itself ought to have sought clarification from the
\nsaid  respondents  under  Clause  27   of  ITB\tinstead\t  of
\nevaluating  the bid on the basis of an unintended unit\trate
\nto   reach   an\t  astonishing\tfigure\twhich\twas   wholly
\ndisproportionate to the cost of the Project.  His contention
\nis  that  once the total bid price is maintained,  the\tunit
\nrate  is  a matter of arithmetic exercise which should\thave
\nbeen  corrected\t by  the  appellant;  further  the  mode  of
\npayment\t by  the appellant for the work done is not  on\t the
\nbasis of each unit but on the basis of bid price.  Accepting
\nthat  the bid price is unalterable, the unit rate should  be
\nregarded  as  adjustable.   It\twas   also  argued  by\t Mr.
\nChidambaram  that  there was no mistake in giving  the\tunit
\nrate  as  such;\t  the mistake was in giving  the  conversion
\nequivalent  in US Dollars and, therefore, the correction not
\nbeing the one falling under Clause 29 of the ITB was rightly
\npermitted  to  be corrected by the High Court.\tFinally,  he
\ncontended  that\t their\tbid  being less\t than  the  bids  of
\nrespondent  Nos.11  and 10 by Rs.40 crores and Rs.80  crores
\nrespectively,  the High Court rightly directed consideration
\nof  the bid of respondent Nos.1 to 4 after due correction of
\nthe  bid documents in public interest which did not  warrant
\ninterference  by  this\tCourt.\tIn the light  of  the  above
\ncontentions,   we  have\t to  examine  as  to  what  is\t the
\npermissible  course of action under ITB.  A reference to the
\nrelevant  clauses of the ITB will be apposite here.   Clause
\n14.1 says that unless stated otherwise in the bid documents,
\nthe  Contract  shall be for the whole Works as described  in
\nsub-clause  1.1 thereof based on the schedule of unit  rates
\nand prices submitted by the bidder.  Clause 14.2 enjoins all
\nthe bidders to fill in rates and prices for all items of the
\nWorks  described  in the Bill of Quantities both in  figures
\nand  words and cautions that items against which no rate  or
\nprice  is entered by the bidder will not be paid for by\t the
\nEmployer (the appellant herein) on the execution of items of
\nthose  works  and  the same shall be deemed covered  by\t the
\nother  rates  and  prices in the Bill of  Quantities.\tWith
\nregard\tto  the currencies of the bid, Clause  15.1  directs
\nthat  unit rates and prices shall be quoted by the bidder in
\nIndian\tRupee  (INR) and either in U.S.\t Dollar or  Japanese
\nYen.   The bidders are given option to assess the  component
\nof  currency requirements as follows:  (a) for those  inputs
\nto  the Works which the bidder expects to supply from within
\nthe  Employers country (the appellants country – India) in
\nIndian Rupee;  and<\/p>\n
      (b)  for\tthose inputs to the Works which\t the  bidder
\nexpects\t to supply from outside the Employers i.e.  outside
\nIndia in U.S.  Dollar or Japanese Yen.\n<\/p>\n
      In  regard  to  modification and withdrawal  of  bids,
\nClause\t24.1 provides that the bidder may modify or withdraw
\nhis  bid  after bid submission but before the  deadline\t for
\nsubmission  of bids.  The mandate of Clause 24.3 of the\t ITB
\nis  that  no bid shall be modified by the bidder  after\t the
\ndeadline for submission of bids.  Inasmuch as Clauses 27 and
\n29 of the ITB deal with clarification of bids and correction
\nof  errors respectively and their true interpretation has  a
\nbearing\t on  the  decision in this case, it will be  apt  to
\nquote  them  here  :  27.  Clarification of Bids  27.1\tTo
\nassist\tin  the\t examination, evaluation and  comparison  of
\nbids,  the Employers authorised representative may, at\this
\ndiscretion,  ask  any  or all bidders for  clarification  of
\nhis\/their   Bids,  including  breakdowns   of  unit   rates,
\ntechnical information, documents and materials after opening
\nof  the Bid.  The request for clarification and the response
\nshall  be in writing or by cable, but no change in the price
\nor substance of the Bid after opening the Price Bid shall be
\nsought,\t offered or permitted except as required to  confirm
\nthe  correction\t of  arithmetic\t errors\t discovered  by\t the
\nEmployers  authorised  representative in the evaluation\t of
\nthe bids in accordance with Clause 29 of ITB.\n<\/p>\n
      29.  Correction of Errors<\/p>\n
      29.1  Bids  determined to be substantially  responsive
\nwill  be checked by the Employers authorised representative
\nfor  any arithmetic errors.  Errors will be corrected by the
\nEmployers authorised representative as follows:\n<\/p>\n
      (a)  where there is a discrepancy between the  amounts
\nin  figures  and in words, the amount in words will  govern;
\nand  (b) where there is a discrepancy between the unit\trate
\nand  the line item total resulting from multiplying the unit
\nrate  by the quantity, the unit rate as quoted will  govern.\n<\/p>\n
(c)  Where  there  is a discrepancy between figures  and  in
\nwords of an unit rate, the unit rate as quoted in words will
\ngovern.\t  29.2 The amount stated in the Form of Bid will  be
\nadjusted  by  the  Employers authorised\t representative\t in
\naccordance  with  the above procedure for the correction  of
\nerrors\tand  shall be communicated to the Bidder in  writing
\nfor his acceptance in writing within seven (7) days from the
\ndate  of  issue\t of such  communication.   Such\t corrections
\nhowever\t shall\tbe binding upon the Bidder.  If\t the  Bidder
\ndoes not accept the corrected amount of bid, his bid will be
\nrejected,  and\tthe  bid  security  shall  be  forfeited  in
\naccordance  with sub-clause 17.6(b) of ITB. It may be seen
\nthat  Clause  27.1 enables the appellant or  its  authorised
\nrepresentative\tto ask any or all bidders for  clarification
\nof  his\/their  bids,  including breakdowns  of\tunit  rates,
\ntechnical information, documents and materials after opening
\nof  the bid.  The request for such clarification is required
\nto  be made in writing or by cable, so also the response  to
\nsuch  request.\tIt is important to note that the said clause
\nprohibits  seeking, offering or permitting any change in the
\nprice  or  substance of the bid after opening of  the  price
\nbid.   The exception provided to that mandate is  correction
\nof   arithmetic\t errors\t discovered   by   the\t appellant’s
\nauthorised  representative in the evaluation of the bids  in
\naccordance  with  Clause  29 thereof.  A  plain\t reading  of
\nClause\t29.1 shows it has two limbs;  the first limb imposes
\na duty on the appellants authorised representative to check
\nbids  determined  to  be substantially\tresponsive  for\t any
\narithmetic  errors  and the second postulates correction  of
\nsuch  errors by the authorised representative in the  manner
\nlaid down in sub-clauses (a) to (c) thereof.  Sub-clause (a)
\nsays that in the event of discrepancy between the amounts in
\nfigures\t and  in  words, the amount in\twords  will  govern;
\nsub-clause  (b),  which\t is   germane  for  our\t discussion,
\nprovides that in case of a discrepancy between the unit rate
\nand  the line item total resulting from multiplying the unit
\nrate  by the quantity, the unit rate as quoted will  govern;
\nand  the  import  of  sub-clause (c) is that in\t case  of  a
\ndiscrepancy  between figures and in words of any unit  rate,
\nthe  unit rate as quoted in words will govern.\tWhere errors
\nare corrected in accordance with the above guidelines by the
\nappellants authorised representative, Clause 29.2 specifies
\nthe  procedure\tto adjust the amount stated in the  Form  of
\nBid.   The authorised representative has to communicate\t the
\ncorrection  of\terrors\tto  the bidder in  writing  for\t his
\nwritten\t acceptance within seven days from the date of issue
\nof   such  communication.   It\t also  provides\t that\tsuch
\ncorrections  shall  be\tbinding upon the bidder and  in\t the
\nevent  of  the bidder not accepting the corrected amount  of
\nbid, his bid will be rejected and the bid security is liable
\nto  be forfeited in accordance with sub- clause 17.6 (b)  of
\nthe  ITB.  Now adverting to the Annexures, the statement  of
\nB.Upper\t Dam  price bid submitted by respondents 1 to  4
\ndiscloses that with reference to each work item the quantity
\nthereof\t is  mentioned.\t The bidder is expected to give\t the
\nunit  price in Indian Rupee as well as in U.S.\tDollar\tboth
\nin figures as well as in words and enter the line item total
\nresulting from multiplying the unit rate by the quantity.  A
\nplain  reading of sub-clause (b) of Clause 29.1, referred to
\nabove,\tleaves no room for doubt that once the unit rate and
\nline item total are filled in by the bidder, both the quoted
\nunit  rate and item total are treated as unalterable at\t the
\ninstance  of the bidder though arithmetic errors in arriving
\nat  line  item total by multiplication are permitted  to  be
\ncorrected  by  the  appellants\tauthorised  representative.
\nThis being the intendment of the ITB, we shall now examine :\n<\/p>\n
(i)  whether the correction made by the appellant in the bid
\ndocuments  of  respondent  Nos.1  to  4\t and   consequential
\nevaluation  of\ttheir  bid communicated\t with  letter  dated
\nDecember  18,  1999  are  valid in law;\t  and  (ii)  whether
\nrespondents  1 to 4 are entitled to seek correction in their
\nbid  documents\teither\tunder  ITB  or\tin  equity  and\t the
\ndirection given by the High Court to the appellant to permit
\nthe correction of errors, is sustainable.  Before proceeding
\nto  ascertain  answers\tto the above questions, it  will  be
\nuseful to bear in mind the principles governing the exercise
\nof power of judicial review by the High Courts.\t We consider
\nit  unnecessary to refer to cases on the scope of the  power
\nof  judicial  review  of administrative action by  the\tHigh
\nCourt  as  a  three  Judge Bench of this  Court\t has,  after
\nexhaustive  consideration  of  long   line  of\tauthorities,
\nsuccinctly  summarised\tthe  position\tand  laid  down\t the
\nfollowing  principles  in Tata Cellular Vs.  Union of  India
\n[1994  (6)  SCC\t 651] :\t (1) The modern\t trend\tpoints\tto
\njudicial  restraint in administrative action.  (2) The court
\ndoes  not  sit as a court of appeal but merely\treviews\t the
\nmanner\tin which the decision was made.\t (3) The court\tdoes
\nnot  have  the\texpertise  to  correct\tthe   administrative
\ndecision.   If\ta review of the administrative\tdecision  is
\npermitted  it will be substituting its own decision, without
\nthe  necessary expertise which itself may be fallible.\t (4)
\nThe  terms  of\tthe invitation to tender cannot be  open  to
\njudicial scrutiny because the invitation to tender is in the
\nrealm  of  contract.   Normally speaking,  the\tdecision  to
\naccept\tthe  tender  or\t award the contract  is\t reached  by
\nprocess\t of negotiations through several tiers.\t More  often
\nthan  not, such decisions are made qualitatively by experts.
\n(5)  The Government must have freedom of contract.  In other
\nwords,\ta fair play in the joints is a necessary concomitant
\nfor  an administrative body functioning in an administrative
\nsphere\t or  quasi-administrative   sphere.   However,\t the
\ndecision  must\tnot  only be tested by\tthe  application  of
\nWednesbury  principle of reasonableness (including its other
\nfacts pointed out above) but must be free from arbitrariness
\nnot  affected  by  bias\t or actuated  by  mala\tfides.\t (6)
\nQuashing decisions may impose heavy administrative burden on
\nthe  administration  and  lead to increased  and  unbudgeted
\nexpenditure.  In  the light of these principles, we  shall
\ndetermine  the\taforementioned points.\tTaking up the  first
\nquestion  first,  it  will be necessary\t to  understand\t the
\nnature\tof errors, correction made by the appellant and\t the
\nrelief\tsought\tby  respondent Nos.1 to 4 in respect  of  37
\nitems  in  the bid documents.  We shall extract here,  as  a
\nsample\tof  errors in 37 items, the price bid  submitted  by
\nrespondent  Nos.1 to 4 relating to B.  Upper Dam found\ton
\npage  No.70  of\t Vol.IV of the documents (marked  A).\tIt
\nreads thus:  Annexure<\/p>\n
      B.  Upper Dam A<\/p>\n
      Price Bid as Submitted<\/p>\n
      Item<\/p>\n
      Work Item<\/p>\n
      Esc.\n<\/p>\n
      Coeff.\n<\/p>\n
      Remarks<\/p>\n
      Unit<\/p>\n
      Quantity Unit Price<\/p>\n
      Amount<\/p>\n
      Clause In Specifica- tions<\/p>\n
      INR<\/p>\n
      US$<\/p>\n
      Figure Words<\/p>\n
      1.Care of river<\/p>\n
      02 Rock Excavation<\/p>\n
      I<\/p>\n
      Cum<\/p>\n
      1000<\/span><\/p>\n
      148.08<\/p>\n
      One hundred forty-eight point nil eight<\/p>\n
      148,077.97 7.4<\/p>\n
      148.08<\/p>\n
      One hundred forty-eight point nil eight<\/p>\n
      3,384.64<\/p>\n
      03 Impervious Core Embankment I<\/p>\n
      Cum<\/p>\n
      148.08<\/p>\n
      One hundred forty-eight point nil eight<\/p>\n
      328,418.53 9.5<\/p>\n
      1.92<\/p>\n
      One point ninety-two<\/p>\n
      7,506.71<\/p>\n
      According\t to respondents 1 to 4, the above price\t bid
\nshould\tbe  corrected  to  read as given  in  the  following
\nstatement (marked B):\n<\/p>\n
      B<\/p>\n
      Item<\/p>\n
      Work Item<\/p>\n
      Esc.  Coeff.<\/p><\/blockquote>\n
      Remarks<\/p>\n
      Unit<\/p>\n
      Quantity Unit Price<\/p>\n
      Amount<\/p>\n
      Clause In Specifica- tions<\/p>\n
      INR<\/p>\n
      US$<\/p>\n
      Figure Words<\/p>\n
      1.Care of river<\/p>\n
      02 Rock Excavation<\/p>\n
      I<\/p>\n
      Cum<\/p>\n
      1000<\/span><\/p>\n
      148.08<\/p>\n
      One hundred forty-eight point nil eight<\/p>\n
      148,077.97 7.4<\/p>\n
      3.38<\/p>\n
      Three point thirty eight<\/p>\n
      3,384.64<\/p>\n
      03 Impervious Core Embankment I<\/p>\n
      Cum<\/p>\n
      3,900<\/p>\n
      84..21<\/p>\n
      Eight four point twenty one<\/p>\n
      328,418.53 9.5<\/p>\n
      1.92<\/p>\n
      One point ninety-two<\/p>\n
      7,506.71<\/p>\n
      A\t perusal  of the price bid statement A shows  that
\nthe  unit  price filled in by the bidder in the\t first\tline
\nagainst\t Item  (02)  –\tWork Item -,  Rock  Excavation\tis
\nrepeated  in two lines – in the second line of the same item
\nand in the first line of Item (03) – Work item – Impervious
\nCore  Embankment.  In the quantity column, 1000 is  noted
\nby  the\t appellant.   The unit rate for Rock  Excavation  is
\ngiven  by respondent Nos.1 to 4 in the first line in  Indian
\nRupee  as Rs.148.08 both in figures as well as in words.  In
\nthe  amount column Rs.148,077.97 is entered which is arrived
\nat  by multiplying quantity, 1000, by unit rate,  Rs.148.08.
\nIt  contains an arithmetic error;  instead of Rs.148,080.00,
\nit  is\tnoted as Rs.148,077.97.\t It has been  noticed  above
\nthat  under Clause 29.1(b) of the ITB, such an error in\t the
\nline  total in the amount column is amenable for  correction
\nand  not  the  unit rate noted by the bidder in\t the  figure
\ncolumn.\t  In  the  second line, the same entry\tis  repeated
\nthough\tthat  line  should contain unit rate  in  U.S.Dollar
\nwhich  is rupee equivalent of the unit rate mentioned in the
\nfirst  line.   Respondent  Nos.1  to 4\tseek  correction  of
\n148.08\tin the second line as 3.38 in the figure  column
\nand  also in words to conform to 3,384.64 which is noted  in
\nthe  amount  column,  to  wit as  US  Dollar  equivalent  of
\n148,077.97  Indian Rupee in the first line.  This appears to
\nbe  the\t import\t of  their  letter  of\tDecember  17,  1999.
\nRespondent  Nos.1 to 4 seek correction of the entries in the
\nthird  line  also which is the first line against work\titem
\nImpervious Core Embankment.  It is plain that against this
\nWork Item the entries in the first line are quite different.
\nThe quantity column is blank, though 3900 should have been
\nnoted  therein.\t In that line also the entries in the  first
\nline  are repeated.  There the correction sought is that the
\nfigure column should read as 84.21 both in figure and words.
\nIt is stated that in the second line the unit rate 1.92 both
\nin  figures and words, represents U.S.\tDollar equivalent of
\n84.21  Indian Rupee which is now sought to be inserted.\t The
\nerrors\tin  other 36 items are said to be similar.  Had\t the
\nerrors\tbeen  confined to these aspects, it would  not\thave
\nresulted  in  material change in the unit rate\tbecause\t the
\nunit  rate in one of the permissible currencies is correctly
\ngiven  and  there  will be no discrepancy  as  envisaged  in
\nsub-clause  (b)\t of Clause 29.1.  It would not really  be  a
\ncase  of incorporating a new unit rate but a case of  either
\nrecording  U.S.\t Dollar equivalent of the unit rate  already
\nnoted  in  Indian Rupee or vice versa as given in  statement
\nB  above.   In such a case, perhaps, they would have  been
\nentitled  to  equitable relief of rectification of  mistake.
\nBut  here,  as\twould be shown presently,  the\tposition  is
\ndifferent.   With  regards  to\tthe   mistakes\tin  the\t bid
\ndocuments, for the first time respondent Nos.1 to 4 informed
\nthe appellant in their letter of October 25, 1999 which runs
\nas follows :\n<\/p>\n
      Re  :   Purulia Pumped Storage Project Lot 4 –  Main
\nCivil  Works – Resubmittal Price Bid.  Dear Sirs, We  regret
\nthat  certain  repetitive systematic computer  typographical
\ndata  transmission  failure  have occurred in items  as\t per
\nattached  annexure in our bid submitted to you on  08.09.99.
\nIn  order  to dispel any doubts, we  hereby  unconditionally
\ndeclare\t that  we stand by the amounts (both INRs and US  $)
\nagainst\t the  affected\tschedules A to I, announced  at\t the
\nopening\t of the revised price bid on the 8th of September at
\nWBSEB  and reiterate that there is no change in the price or
\nsubstance  of  our  bid.   Our unit  bid  prices  should  be
\ncomputed  accordingly for the aforesaid items.\tThis  letter
\nis   strictly\twithout\t  prejudice  to\t  our\trights\t and
\ncontentions.  It  may be noticed that in this letter  they
\ninformed  that\tcertain\t mistakes  had crept  in  the  items
\nmentioned in the annexure to the letter and declared that no
\nchange\tin  the price or substance of the bid was asked\t for
\nand  that they stood by the amounts announced at the time of
\nthe bids on September 8, 1999.\tHowever, the actual mistakes
\nare  not pointed out.  In their letter of December 17,\t1999
\nthey  attempted\t to  clarify  the  position.   The  relevant
\nexcerpt\t of  that letter may be quoted here:  West  Bengal
\nState  Electricity Board Office of the Project Manager,\t Mr.
\nS.K.   Roy  Choudhury, The Project Manager,  Purulia  Pumped
\nStorage\t Project, Vidyut Bhawan, 5th Floor, Salt Lake  City,
\nCalcutta – 700 091, India,<\/p>\n
      Fax No.0091 33 3591854 \/ 3581533 1999-12-17<\/p>\n
      Purulia Pumped Storage Project<\/p>\n
      Dear Sir,<\/p>\n
      We  refer\t to our telefax dated 25th October 1999.   A
\ncopy thereof is again enclosed for your convenience.\n<\/p>\n
      We    request   that     the   systematic\t  computer
\ntypographical transmission failure pointed out in the said
\ntelefax\t is  merely clerical in nature and not\tarithmetical
\nand  do not in any way affect the validity of our bid.\t Its
\nnature is fully explained below.\n<\/p>\n
      I.   The\tcomputer  has  unfortunately  systematically
\ncopied,\t in  the first page (Serial items 2 & 3) of the\t BOQ
\n(Schedule  A  to  I), the INR unit rates stated\t in  line  1
\nSerial\tItem  2 to the next two succeeding lines  i.e.\t the
\ncomputer has overwritten the unit rates in US$ terms for the
\nserial\titem no.2 and the INR unit rates for the immediately
\nsucceeding serial item.\n<\/p>\n
      However,\tthe  figures appearing the amount column  of
\nthe  BOQ  for  the  said  lines\/items  in  which  the  above
\nmentioned  errors  have\t occurred are the  correct  tendered
\nfigures both in US$ terms as well as INR terms.\n<\/p>\n
      II.  Further the BOQ quantities stated in the quantity
\ncolumn\tof serial item no.3 on each and every page has\tbeen
\nerased.\n<\/p>\n
      Enclosed\tis  an\tattachment   which  would  show\t the
\napplicable unit rates (in the lower half) and the unit rates
\nwhich were overwritten due to computer failure (in the upper
\nhalf).\n<\/p>\n
      It is an admitted position that at the time of opening
\nof  the tender on 8th September 1999, our bid was the lowest
\nat  Rs.647.90  crores.\t The bid of  Skanska  was  Rs.691.22
\ncrores and that of Taisei was Rs.726.50.  We confirm that we
\nhave  all  along maintained and still maintain the said\t bid
\nprice of Rs.647.90 crores.\n<\/p>\n
      However,\twe  have  reasons to believe that  you\thave
\nchosen\tto  ignore  our said letter and\t have  proceeded  to
\nevaluate  our price bid by an illogical and  mis-application
\nof  the rules for the evaluation of the bids set down in the
\nITB.\n<\/p>\n
      We,  therefore,  once again call upon you to  evaluate
\nour  bid after taking into consideration the applicable unit
\nrates.\t As already mentioned in our earlier fax there is no
\nchange\tin the price or substance of our bid as mentioned in
\nthe amount column of the BOQ. (Emphasis supplied)<\/p>\n
      Here,  though  the nature of mistakes are pointed\t out
\nyet  the  scope of the correction sought is  not  indicated.
\nThe appellant could not have ignored these letters.  Had the
\nappellant  taken  note\tof these letters  and  the  mistakes
\noccurring  due\tto repetition of entries in 37 items in\t the
\nbid  documents, it would not have proceeded with  correction
\nof  such mistakes and evaluation of their bid without  first
\nseeking\t clarification from respondents 1 to 4 under  Clause
\n27.1.\tWe have already referred to the gist of that clause.
\nThe  only prohibition contained therein is that no change in
\nthe  price or substance of the bid after its opening can  be
\nsought,\t offered or permitted.\tIn that regard they had made
\ntheir  position\t clear.\t The prohibition is, therefore,\t not
\nattracted.   In these circumstances any reasonable person in
\nthe   position\t of   the   appellant  would   have   sought
\nclarification  from respondent Nos.1 to 4 under Clause 27.1.
\nEven assuming that after the letter of December 17, 1999, no
\nfurther\t clarification\twas  required to be  sought  by\t the
\nappellant,  we cannot but hold that correction of the errors
\ntaking\tnote of the unit rates which are mere repetition  of
\nthe  unit  rates  quoted  for  a  different  work  item\t  is
\nmechanical and without application of mind by the appellant.
\nIn  our\t view such a correction is far beyond the  scope  of
\nClause\t29.   From  the description of the  mistakes,  noted
\nabove,\tand  the  correction  and  evaluation  made  by\t the
\nappellant,  it is evident that except the error in the first
\nline  against  the work item Rock Excavation and  Schedule
\nN day work, all other mistakes\/errors are beyond the scope
\nof  Clause  29.1, so Clause 29.2 will not be attracted.\t  It
\nfollows\t that  the  corrections\t in  the  bid  documents  of
\nrespondent  Nos.1  to  4  carried   out\t by  the  appellant,
\nevaluation  of\tbid  under  Clause  29.2  and  the  impugned
\ncommunication  of the appellant dated December 18, 1999\t are
\nunsustainable  and of no consequence.  Now, reverting to the
\nrelief\tof correction of errors, Mr.  Chidambaram has argued
\nthat  in  the two lines against each of the Work Items,\t the
\nfirst  line  denotes 50 per cent of the quoted unit rate  in
\nIndian Rupee and the second line represents the other 50 per
\ncent of the unit rate in U.S.  Dollar.\tAccording to him the
\nactual rate quoted for quantity 1000 is the sum total of two
\nlines  i.e.   148.08  in  Indian Rupee\tplus  3.38  in\tU.S.
\nDollar.\t  This\tis not noted either in statement A  or\tin
\nstatement  B.  Be that as it may, quoting the unit rate 50
\nper  cent in Indian Rupee and 50 per cent in U.S.  Dollar is
\nnot  provided in the ITB.  Nothing is brought to our  notice
\nto  justify splitting of unit rate in that ratio.  There  is
\nno  indication\tof  this  fact in the  price  bid  documents
\nsubmitted  by the said respondents to explain that the\tunit
\nrate  has  been so quoted.  This is also not  in  conformity
\nwith  Clause  15  of ITB which, as noted above,\t requires  a
\nbidder\tto  quote unit rates and prices in Indian Rupee\t and
\neither\t in  U.S.Dollar\t or   Japanese\tYen.   The   learned
\nAdditional  Solicitor General, in our view, is right in\t his
\nsubmission that till the representation was made by the said
\nrespondents   on  December  23,\t  1999,\t after\tthe  interim
\ndirection  of  the High Court, the appellant was unaware  of
\nthe  quoted unit rate being in such proportion.\t A  combined
\nreading\t of ITB and the annexure, extracted above, makes  it
\nclear  that the second line against each work item is  meant
\nfor  writing U.S.  Dollar or Japanese Yen equivalent of\t the
\nunit  rate and line total in the amount column entered\tin
\nthe  first line and not for writing bifurcated unit price in
\ndifferent  currencies  in the ratio of 50 :  50.   On  these
\nfacts,\tthe  errors  cannot be termed as  mere\tclerical  or
\nmechanical.   Permitting correction of such errors, if\tthey
\ncan  be so called, would result in not only re-writing\tunit
\nrates  in  37 entries in which such errors are said to\thave
\nbeen  committed\t but also appending an\texplanation  thereto
\nregarding splitting of unit rates in terms of representation
\ndated  23.12.1999 of respondent Nos.1 to 4.  Neither Clauses
\n27  and\t 29  nor any other clause in the  ITB  permits\tsuch
\ncorrections.  The mistakes\/errors in question, it is stated,
\nare  unintentional and occurred due to the fault of computer
\ntermed\tas a repetitive systematic computer  typographical
\ntransmission  failure.\t It  is difficult to  accept  this
\ncontention.  A mistake may be unilateral or mutual but it is
\nalways\tunintentional.\tIf it is intentional it ceases to be
\na  mistake.   Here the mistakes may be unintentional but  it
\nwas  not  beyond  the control of respondent Nos.1  to  4  to
\ncorrect\t the  same before submission of the bid.   Had\tthey
\nbeen  vigil  in\t checking  the bid  documents  before  their
\nsubmission,  the mistakes would have been avoided.  Further,
\ncorrection  of\tsuch mistakes after one and a half month  of
\nopening\t of the bids will also be violative of Clauses 24.1,
\n24.3  and  29.1\t of ITB.  The controversy in this  case\t has
\narisen at the threshold.  It cannot be disputed that this is
\nan  international competitive bidding which postulates\tkeen
\ncompetition and high efficiency.  The bidders have or should
\nhave  assistance  of technical experts.\t The degree of\tcare
\nrequired in such a bidding is greater than in ordinary local
\nbids  for  small  works.  It is essential  to  maintain\t the
\nsanctity  and  integrity of process of tender\/bid  and\talso
\naward  of a contract.  The appellant, respondent Nos.1 to  4
\nand  respondent\t Nos.10 & 11 are all bound by the ITB  which
\nshould\tbe  complied with scrupulously.\t In a work  of\tthis
\nnature\t and  magnitude\t where\t bidders  who  fulfil\tpre-
\nqualification  alone  are invited to bid, adherence  to\t the
\ninstructions  cannot  be given a go-bye by branding it as  a
\npedantic  approach  otherwise it will encourage and  provide
\nscope for discrimination, arbitrarinessand favouritism which
\nare   totally\topposed\t to  the   Rule\t of  law   and\t our
\nConstitutional\t values.   The\tvery   purpose\tof   issuing
\nRules\/instructions  is to ensure their enforcement lest\t the
\nRule  of law should be a casuality.  Relaxation or waiver of
\na  rule\t or condition, unless so provided under ITB, by\t the
\nState  or  its\tagencies (the appellant) in  favour  of\t one
\nbidder would create justifiable doubts in the minds of other
\nbidders,  would impair the rule of transparency and fairness
\nand  provide room for manipulation to suit the whims of\t the
\nState agencies in picking and choosing a bidder for awarding
\ncontracts  as in the case of distributing bounty or charity.
\nIn  our view such approach should always be avoided.   Where
\npower  to relax or waive a rule or a condition exists  under
\nthe Rules, it has to be done strictly in compliance with the
\nRules.\tWe have, therefore, no hesitation in concluding that
\nadherence  to  ITB  or\tRules is the best  principle  to  be
\nfollowed,  which  is also in the best public interest.\t For
\nall these reason, in such a highly competitive bid of global
\ntender,\t the  appellant\t was  justified\t in  not  permitting
\nrespondent  Nos.  1 to 4 to correct the errors of the nature
\nand the magnitude which, if permitted, will give a different
\ncomplexion  to\tthe bid.  The High Court erred in  directing
\nthe appellant to permit respondent Nos.1 to 4 to correct the
\nerrors\tin  the\t bid   documents.   Mr.Chidambram,  however,
\nsubmitted  that\t in  equity respondent Nos.1 to 4  would  be
\nentitled  to  relief of correction of mistakes.\t He  invited
\nour  attention\tto  para 84 of\tthe  American  Jurisprudence
\n(Second Edition, Volume 64, Page No.944).  It will be useful
\nto  quote  the\trelevant  part of that para  here:   As\t a
\ngeneral\t rule, equitable relief will be granted to a  bidder
\nfor  a public contract where he has made a material  mistake
\nof  fact in the bid which he submitted, and where, upon\t the
\ndiscovery of that mistake, he acts promptly in informing the
\npublic\tauthorities and requesting withdrawal of his bid  or
\nopportunity  to\t rectify his mistake particularly  where  he
\ndoes  so  before any formal contract is entered into.  The
\nprinciple  is based on the judgment of the Supreme Court  of
\nU.S.A.\t in Moffett, H.\t & C.  Co.  Vs.\t Rochester, 178 U.S.
\n373;   44 L Ed 1108, 20 S Ct 957.  There the plaintiff\tgave
\nproposals  by  way  of bid for two works  of  excavation  of
\nearth,\tquoting\t the  unit  rate 1.5 Dollar  instead  of  15
\nDollars\t and  50 cents instead of 70 cents per\tcubic  yard.
\nThe City of Rochester which called for tenders, was promptly
\ninformed  of the mistake by the plaintiffs agent as soon  as
\nit  was\t discovered  but   before  entering  into  contract.
\nHowever,  the proposal of the plaintiff was accepted by\t the
\nCity  of Rochester in regard to one work and the other\twork
\nwas  allotted to another bidder.  The plaintiff declined  to
\nenter  into a contract with the City of Rochester which took
\nsteps  to enforce execution of the contract.  The  plaintiff
\nfiled the suit for correction of proposals to conform to the
\nasserted  intention in making them and for execution of\t the
\ncontract  on  corrected\t rates\tor  alternatively  for\t the
\nrecission  of  the  proposals.\tIt  also  sought  injunction
\nagainst\t the officers of the City of Rochester declaring  it
\nto  be\tdefaulter, its bond forfeited or enforced.   It\t was
\nfound  that  the price noted was grossly inadequate and\t far
\nbelow  what  would be the actual cost of the work under\t the
\nmost  favourable circumstances.\t The trial court decreed the
\nsuit  holding that the proposals of the bidder be rescinded,
\ncancelled  and\tdeclared  null, void, and of no\t effect\t and
\ngranting  the  injunction  prayed for.\tBut  on\t appeal\t the
\ndecree\twas  reversed by the circuit court of  appeals.\t  On
\nfurther\t appeal\t to  the  Supreme Court of  U.S.A.,  it\t was
\nobserved  that both the courts below found that there was  a
\nmistake\t and  while  the trial court opined  it\t was  clear,
\nexplicit and undisputed, the court of appeal was of the view
\nthat  it  was  not a mistake in any legal sense\t but  was  a
\nnegligent omission arising from an inadequate calculation of
\nthe  cost  of  the work and held that the  mistake  was\t not
\nsufficient  to\tpreclude a claim for relief if\tthe  mistake
\njustified  it.\t The Supreme Court relied on  the  following
\nobservation  in an earlier judgment of that Court in  Hearne
\nVs.   Marine  Ins.  Co.\t 22 L ed.  305, A mistake  on  one
\nside  may be a ground for rescinding, but not for reforming,
\na  contract.   Where the minds of the parties have  not\t met
\nthere  is no contract, and hence none to be rectified. And
\nit  was\t concluded that the last two propositions  might  be
\nclaimed\t to  be\t pertinent  to that  case  even\t though\t the
\ntransactions   between\tthe  parties  be  considered  as   a
\ncompleted  contract and held that the action of the City  of
\nRochester  in  awarding one contract to another\t bidder\t and
\nforcing\t the  plaintiff\t to enter into the  second  contract
\nafter  it  had declared there was a mistake in its  proposal
\nwas  inequitable.  Exceptions to the above general principle
\nof seeking relief in equity on the ground of mistake, as can
\nbe  culled  out\t from the same para, are :   (1)  where\t the
\nmistake\t might have been avoided by the exercise of ordinary
\ncare and diligence on the part of the bidder;  but where the
\nofferee of the bid has or is deemed to have knowledge of the
\nmistake,  he cannot be permitted to take advantage of such a
\nmistake.   (2) where the bidder on discovery of the  mistake
\nfails  to  act\tpromptly  in   informing  to  the  concerned
\nauthority  and\trequest\t for  rectification,  withdrawal  or
\ncancellation of bid on the ground of clerical mistake is not
\nmade  before  opening of all the bids, (3) where the  bidder
\nfails  to follow the rules and regulations set forth in\t the
\nadvertisement  for  bids  as to the time  when\tbidders\t may
\nwithdraw   their  offer;   however   where  the\t mistake  is
\ndiscovered  after  opening  of\tbids,\tthe  bidder  may  be
\npermitted to withdraw the bid.\tIn the instant case, we have
\nalso  noted  that  the\tmistakes in  the  bid  documents  of
\nrespondent  Nos.1  to  4 even though caused  on\t account  of
\nfaulty\tfunctioning of computer, could have been  discovered
\nand  notified  by  the\tsaid respondents  with\texercise  of
\nordinary care and diligence.  Here, the mistakes remained in
\nthe  documents\tdue to gross negligence in not checking\t the
\nsame  before the submission of bid.  Further Clauses 24\t and
\n27  of\tITB permit modification or withdrawal of bids  after
\nbid  submission but before the dead line for submissions  of
\nthe  bids  and\tnot thereafter.\t And  equity  follows  the
\nlaw.   Having submitted the bid they did not promptly  act
\nin  discovering\t the  errors and informing the same  to\t the
\nappellant.  Though letters were written on October 25, 1999,
\nand   December\t 17,   1999,  yet   the\t  real\t nature\t  of
\nerrors\/mistakes\t and corrections sought were not pointed out
\ntill  December\t23, 1999 when representation was made  after
\ninterim\t direction  of the High Court was given on  December
\n21,  1999.  Indeed it appears to us that they improved their
\nclaim  in  the\trepresentation.\t  In   our  view  the\tsaid
\nrespondents   are   not\t entitled    to\t  rectification\t  of
\nmistakes\/error\tfor  being considered along with  the  other
\nbidders.   Mr.\t Chidambaram relied upon a decision  of\t the
\nSuperior  Court\t of  New  Jersey  in  Spina  Asphalt  Paving
\nExcavating  Contractors, Inc., Vs.  Borough of Fairview [304
\nN.J.   Super 425] to justify the claim for rectification  of
\nmistakes.   In\tthat case, the Borough of  Fairview  invited
\ntenders.  Spina and one Tomaro participated in the bid.\t The
\nbid  was  on  a\t unit price basis  and\tthe  proposals\twere
\nsubmitted  on  Forms  supplied\tby  the\t Borough.   The\t bid
\nspecifications\tprovided, inter alia :\tin the event there
\nis  a  discrepancy between the unit price and  the  extended
\ntotal,\tthe unit price shall prevail.  The Borough  reserved
\nthe  right  to waive any informality if deemed in  the\tbest
\ninterests  of the owner. On the evening when the bids were
\nopened,\t Spina discovered that its secretary had erroneously
\nindicated the unit price for one of the items as 400 dollars
\nper  square  yard though it should have been 4\tdollars\t per
\nsquare\tyard  as reflected in the total bid for\t that  work.
\nSpina  faxed  the Borough indicating that the intended\tunit
\nprice  was  4 dollars per square yard.\tOn the basis of\t 400
\ndollars\t per  square yard Spinas bid was  calculated  which
\nobviously  worked  out\tfar  higher than  the  intended\t bid
\namount.\t  Taking note of that amount the Borough awarded the
\ncontract  to Tomaro.  Spina instituted action claiming\tthat
\nthe Borough arbitrarily failed to recognise that its bid was
\nlower  than that of Tomaro.  The Law Division held that\t the
\nerror  in  the bid was non-material and subject\t to  waiver.
\nThe  Superior  Court  while agreeing with the  Law  Division
\nobserved  that they did not hold that generally an error  in
\nthe  statement of a price could be treated as immaterial and
\nit  was\t only when as in that case the error was patent\t and
\nthe  true  intent of the bidder obvious that such  an  error
\nmight  be disregarded.\tThe Superior Court held that when as
\nin that case the failure to waive the deviation would thwart
\nthe  aims  of the public bidding laws, the municipality\t was
\nobliged\t to  grant the waiver.\t(Emphasis  supplied)  Though
\nClause\t29 in this case appears to be similarly worded as in
\nthe  bid documents in Spinas case (supra), a close  reading
\nof  these clauses shows that no power of waiver is  reserved
\nin the case on hand.  That apart, the nature of the error in
\nthese two cases is entirely different.\tThere, the error was
\napparent  $  400 for $ 4, non-material and waiveable by\t the
\nCorporation;   in  the present case the errors\tpointed\t out
\nabove  are not simply arithmetic and clerical mistake but  a
\ndeliberate  mode of splitting the bid which would amount  to
\nre-writing  the\t entries in the bid document and  cannot  be
\ntreated as non-material.  Therefore, the judgment in Spinas
\ncase  (supra)  does  not help respondent Nos.1\tto  4.\t The
\nsubmission  that  remains  to be considered is that  as\t the
\nprice  bid  of respondent Nos.1 to 4 is lesser by 40  crores
\nand  80\t crores\t than  that  of\t respondent  Nos.11  and  10
\nrespectively,  public  interest\t demands  that\tthe  bid  of
\nrespondent  Nos.1  to 4 should be considered.\tThe  project
\nundertaken  by the appellant is undoubtedly for the  benefit
\nof public.  The mode of execution of the work of the project
\nshould\talso ensure that the public interest is best served.
\nTenders\t are invited on the basis of competitive bidding for
\nexecution  of  the  work of the project as  it\tserves\tdual
\npurposes.   On the one hand it offers a fair opportunity  to
\nall  those who are interested in competing for the  contract
\nrelating  to execution of the work and on the other hand  it
\naffords\t the  appellant a choice to select the best  of\t the
\ncompetitors  on\t competitive price without prejudice to\t the
\nquality\t of  the work.\tAbove all it eliminates\t favouritism
\nand  discrimination in awarding public works to contractors.
\nThe  contract is, therefore, awarded normally to the  lowest
\ntenderer  which\t is  in public interest.  The  principle  of
\nawarding  contract  to the lowest tenderer applies when\t all
\nthings\tare  equal.   It is equally in\tpublic\tinterest  to
\nadhere to the rules and conditions subject to which bids are
\ninvited.    Merely  because  a\tbid   is  the\tlowest\t the
\nrequirements of compliance of rules and conditions cannot be
\nignored.   It is obvious that the bid of respondent Nos.1 to
\n4  is  the lowest of bids offered.  As the bid documents  of
\nrespondent  Nos.1 to 4 stands without correction there\twill
\nbe  inherent inconsistency between the particulars given  in
\nthe annexure and the total bid amount, it cannot be directed
\nto  be considered along with other bid on the sole ground of
\nbeing  the lowest.  We find no force in the submission\tthat
\nas under Clause 14.2 items against which no rate or price is
\nentered\t by the bidder will not be paid by the employer when
\nexecuted  and shall be deemed covered by the other rates and
\nprices\tin  the bill of quantities, the unit price in  items
\ncontaining  errors  be ignored and the bid be considered  on
\nthe  basis  of total price bid which is the lowest.  In\t our
\nview,  there  is  a basic distinction between a\t case  where
\nagainst\t some items no rates or prices are quoted and a case
\nwhere  some rate is quoted.  Whereas in the former case\t the
\nbidder will not be entitled to claim any specific amount for
\nthe  work  done by him in the absence of any rate  for\tthat
\nwork,  because in the aforementioned clause it is  clarified
\nthat  the bidders will not be paid by the employer and\tthat
\nthe  execution of the work shall be deemed covered by  other
\nrates and prices in the bill of quantities but in the latter
\ncase  the  bidder  will be entitled to claim  for  the\twork
\nexecuted  on  the  basis  of  quoted  price\/rate.   We\tmay,
\nhowever,  clarify that the appellant is not obliged to award
\ncontract  to  any of the bidders at their quoted price\tbid.
\nIt  is\talways open to the appellant to negotiate  with\t the
\nnext lowest bidder for awarding the contract on economically
\nviable\tprice  bid.  For the reasons abovementioned,  though
\nthe  impugned order of the High Court insofar as it  relates
\nto  quashing  of letter of the appellant dated December\t 18,
\n1999,  falls within the purview of judicial review, yet\t the
\ndirection to the appellant to permit correction of errors by
\nrespondents 1 to 4 in their bid documents and consider their
\nbid  along  with  other bid, goes far beyond  the  scope  of
\njudicial  review,  as  elucidated  by  this  Court  in\tTata
\nCellular  (supra).   In the result, we uphold  the  impugned
\norder  of  the\tDivision  Bench insofar\t as  it\t relates  to
\nquashing of communication and letter dated December 18, 1999
\nand  set  aside\t that  part of\tthe  impugned  order  giving
\ndirection  to the appellant to permit respondent Nos.1 to  4
\nto  correct  bid documents and to consider their  bid  after
\ncorrection  along  with\t other\tbids.  The  appeal  is\tthus
\nallowed\t in part.  On the facts and in the circumstances  of
\nthis case we leave the parties to bear their own costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India West Bengal State Electricity … vs Patel Engineering Co. Ltd. & Ors on 15 January, 2001 Author: S S Quadri Bench: S.S.M.Quadri, S.N.Phukan CASE NO.: Appeal (civil) 4921 of 2000 PETITIONER: WEST BENGAL STATE ELECTRICITY BOARD Vs. RESPONDENT: PATEL ENGINEERING CO. LTD. & ORS. DATE OF JUDGMENT: 15\/01\/2001 BENCH: S.S.M.Quadri, S.N.Phukan […]<\/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-35733","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nWest Bengal State Electricity ... vs Patel Engineering Co. 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