TBAS Construction, Supreme Infrastructure India Ltd., Indian Erecters Engineering Contractors Consortium (JV) v Union of India; Chairman, Cochin Port Trust; Chief Engineer, Cochin Port Trust

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 28TH DAY OF JUNE 2018 / 7TH ASHADHA, 1940** **WP(C).No. 18936 of 2018** ## **PETITIONER:** **M/S TBAS CONSTRUCTION SUPREME INFRASTRUCTURE INDIA LTD. INDIAN ERECTERS ENGINEERING CONTRACTORS CONSORTIUM, REPRESENTED BY T.U. AJIMON, TBAS CONSTRUCTION, KIZHAKKEDATH BUILDING, NO.VI/617D, KUNJATTUKARA, EDATHALA P.O., ALUVA - 683 561.** **BY ADV.SMT.M.S.KIRAN** **RESPONDENT(S):** **1. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF SHIPPING, TRANSPORT BHAVAN, NEW DELHI - 110 001.** **2. THE CHAIRMAN, COCHIN PORT TRUST, WET ISLAND, COCHIN -682 009, KERALA.** **3. THE CHIEF ENGINEER, CHIEF ENGINEER'S OFFICE, COCHIN PORT TRUST, WEST ISLAND, COCHIN - 682 009, KERALA.** **R1 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA R2 & R3 BY SMT.LATHA ANAND, SC,** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-06-2018, THE COURT ON 28-06-2018 DELIVERED THE FOLLOWING:** **sts 28/6/2018** ## **WP(C).No. 18936 of 2018 (N)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1. A TRUE COPY OF THE NOTICE INVITING TENDER NO.T9/T-1837/2018-C DATED 15.02.2018 WITH INSTRUCTIONS TO TENDERS PUBLISHED BY THE 3RD RESPONDENT** - **EXHIBIT P2. A TRUE COPY OF THE LETTER OF SUBMISSION** - **EXHIBIT P3. TRUE COPY OF THE COMMUNICATION NO.T9/T-1837/2018-C DATED 21.03.2018 ISSUED BY THE 3RD RESPONDENT** - **EXHIBIT P4. TRUE COPY OF THE SUBMISSION OF SHORTFALL** - **EXHIBIT P5. A TRUE COPY OF THE EMAIL COMMUNICATION** - **DATED 04.06.2018** - **EXHIBIT P6. A TRUE COPY OF THE EMAIL COMMUNICATION DATED 04.06.2018 ISSUED BY THE 3RD RESPONDENT DISQUALIFYING THE PETITIONER** - **EXHIBIT P7. A TRUE COPY OF THE CERTIFICATE ISSUED BY THE** - **EXHIBIT P8. TRUE COPY OF THE PROFORMA OF IRREVOCABLE BANK GUARANTEE FOR EMD (ANNEXURE 12)** - **EXHIBIT P9. TRUE COPY OF THE WEB PAGE OF THE PORTAL WHICH SHOWS THE OPENING OF THE PRICE BID OF THE PETITIONER.** - **EXHIBIT P10. TRUE COPY OF THE RELEVANT PAGE PROCEEDINGS OF THE TENDER COMMITTEE MEETING (TECHNICAL BID) DATED 30/04/2018** ## **RESPONDENT'S EXHIBITS AND ANNEXURES:** - **EXHIBIT R3(A) TRUE COPY OF THE BID DETAILS** - **EXHIBIT R3(B) TRUE COPY OF THE JV/CONSORTIUM AGREEMENT DATED 10/3/2018** - **EXHIBIT R3(C) TRUE COPY OF THE BANK GUARANTEE DATED 9/3/2018** **2/-** **-2-** ## **WP(C).No. 18936 of 2018 (N)** |**EXHIBIT R3(D)**|**COPY OF THE JV AGREEMENT DATED 12/3/2018**| |---|---| |**ANNEXURE R3(A)**|**COPY OF THE RELEVANT PAGES OF THE PROCEEDINGS OF THE**| ||**TENDER COMMITTEE MEETING DATED 30/4/2018**| |**ANNEXURE R3(B)**|**COPY OF THE AUDIT TRIAL DETAILS OF THE ACCESS AND USAGE**| ||**OF THE E-TENDERING WEBSITE**| **/TRUE COPY/ P.A.TO JUDGE** **sts 28/6/2018** ## **SHAJI P. CHALY, J.** ----------------------------------------------- ## **W.P.(C) No.18936 of 2018 ----------------------------------------------Dated this the 28[th] day of June, 2018** ## **J U D G M E N T** This writ petition is filed by the petitioner, a company incorporated under the Companies Act, seeking to quash Ext.P6 issued by the 3[rd] respondent disqualifying the petitioner, rejecting the technical bid and for other related and consequential reliefs. 2. Material facts for the disposal of the writ petition are as follows; third respondent invited tender for construction of International Cruise Terminal at Ernakulam Wharf from tenderers having eligibility criteria, evident from Ext.P1. Petitioner, who is the authorised Power of Attorney Holder of a joint venture viz., M/s. TBAS Construction Supreme Infrastructure India Ltd. Indian Erecters Engineering Contractors Consortium, submitted its bid on 9.3.2018, evident from Ext.P2 covering letter dated W.P.(C) No. 18936 of 2018 2 9.3.2018. Thereafter, 3[rd] respondent issued Ext.P3 communication dated 21.3.2018 intimating that, there are some shortfalls in the online submission of bid documents submitted by the petitioner after verification of the technical bids. Accordingly petitioner submitted the hard copies of all the documents within the stipulated period, evident from Ext.P4. Thereafter, there was no communication from the 3[rd] respondent seeking any further clarification or intimating any shortfall for the bid submitted by the petitioner. No defects or shortfalls for the bid submitted by the petitioner was pointed out to be cured. Thereafter, on 4.6.2018 petitioner was served with Ext.P5 e-mail communication informing that, the price bid is being opened by the employer on 4.6.2018. Thereafter, on 4.6.2018, it was informed as per Ext.P6 communication that, the bid submitted by the petitioner for construction of international cruise terminal at Ernakukam Wharf has been rejected and petitioner is being disqualified for the reason W.P.(C) No. 18936 of 2018 3 that, petitioner has not met the requirement of submission of EMD. 3. It is submitted as per clause 16 of Ext.P1 Instructions to Tenderers, each tender should be accompanied by Earnest Money amounting to Rs.22.34 lakhs. EMD shall be furnished either through D/D or banker's cheque drawn in favour of Financial Adviser & Chief Accounts Officer, Cochin Port Trust from any nationalised bank/scheduled bank in India or through an irrevocable bank guarantee valid for a period of 148 days from the date of opening the tender, enforceable and encashable at Cochin drawn from any nationalised bank/scheduled bank operating in India as per the proforma, Annexure 12. In case bank guarantee is furnished for EMD, bank guarantee shall be verified independently by the Port with the bank before finalization of technical offers; in the event of lack of confirmation of issue of the bank guarantee by the bank, the bid shall stand W.P.(C) No. 18936 of 2018 4 disqualified. Any bid not accompanied by an acceptable bid security shall be treated as non-responsive and shall be rejected by the employer. 4. According to the petitioner, petitioner submitted the bank guarantee as per Annexure 12 in the given format complying all the conditions. The bank had made information to the petitioner that, there was an enquiry from the 3[rd] respondent's officer regarding issuance of bank guarantee to the petitioner on 14.3.2018 and the bank had confirmed the issuance of bank guarantee on 17.3.2018, evident from Ext.P7 issued by the Federal Bank Limited and therefore, according to the petitioner, the disqualification of the petitioner made by the 3[rd] respondent under the said ground is illegal, unjustifiable and violative of tender conditions. 5. Likewise as per clause 19 of the Instructions to Tenderers, the bid shall be submitted in two parts; Part I is technical bid and Part II is price bid through e-tender mode. W.P.(C) No. 18936 of 2018 5 As per clause 24 of the instructions, in case of tenders invited under two cover system, the technical bid of the tenderers received will be opened first. It is further stated, technical bid shall be opened in the office of the Chief Engineer, Cochin Port Trust after 15.30 hrs on the last date of receiving tenders. Submission of EMD and cost of document is verified initially. In case of EMD and cost of the bid is not deposited or is not in order, the bid will not be opened and hard copy submitted will be returned. If all the bidders have submitted unconditional bids together with requisite bid security, then all the bidders will be so informed then and there. If any bid contains any deviation from the bid documents and/or if the same does not contain bid security in the manner prescribed in the bid documents, then that bid will be rejected and the bidder will be informed accordingly. The price bid submitted in e-mode will not be opened. 6. It is further submitted, as per the notification, the W.P.(C) No. 18936 of 2018 6 last date and time of submission of bid was 12.3.2018 upto 15.00 hrs and the date and time of opening the bid was 12.3.2018 after 15.30 hrs. The technical bids were opened and verified by the employer and petitioner was informed to cure the shortfalls vide Ext.P3 communication. Nowhere in Ext.P3 communication, it is submitted, the EMD submitted by the petitioner is not in order or there is no communication to the effect that, the security furnished by the petitioner is not in order and hence it is rejected. As per clause 20.2, the price bid contains only bills of quantities and not the documents. As per clause 25 of the instructions, the price bid of those tenderers found responsive in the evaluation of technical bid will be opened later, shortlisted candidates will be communicated about the date and time of opening of the price bid. The bidders name, bid prices, total amount of each bid, any discounts, bid modifications and withdrawals and such other details as the employer may consider appropriate will be announced W.P.(C) No. 18936 of 2018 7 by the employer at the time of opening. If the technical bid is found to be responsive and cured for shortfalls, then only the price bid of the same has to be opened. According to the petitioner, the bid is responsive and the shortfalls were cured within the stipulated time period. As per clause 27 also, even prior to the evaluation of bids, Cochin Port Trust will determine whether each bid is accompanied by the required bid security. Even at the stage of opening the technical bid, there is no communication to the petitioner regarding any rejection of its bid due to unacceptable bid security. The action of the respondent in disqualifying the petitioner at the time of opening the price bid assigning the reason that, it had not made the requirement of submission of EMD, is illegal and against the provisions of Ext.P1 tender invitation. 7. It is also submitted that, in case petitioner's bid security was not in order, the employer must have intimated about the rejection at the time of opening the technical bid. W.P.(C) No. 18936 of 2018 8 However, now after a lapse of three months from the date of opening of the technical bid and verification of bid security & bid documents, and after opening of price bid, it is illegal on the part of the 3[rd] respondent to declare the petitioner as disqualified. These are the background facts projected by the petitioner to secure the relief sought for. 8. Third respondent has filed a detailed statement refuting the allegations and claims and demands raised by the petitioner. Among other contentions it is stated that, electronic tenders were invited by Cochin Port Trust in single stage two cover bidding procedure as per Ext.P1 notification dated 15.2.2018. Ext.P1 produced by the petitioner is not the full tender documents. Petitioner TBAS Constructions, Supreme Infrastructure India Ltd and Indian Erecters Engineering Contractors Consortium submitted the bid through e-portal for the JV/Consortium. In the bid details displayed in the e-portal, the name of the bidder is indicated as TBAS Constructions, the copy of which is W.P.(C) No. 18936 of 2018 9 produced as Ext.R3(a). However, as per clause 6 of Ext.P1, the bidder can be a single entity or a JV/Consortium. Further in case of a JV/Consortium, the conditions for bid submission by JV/Consortium as detailed in clause 38 of Instructions to Tenderers also has to be followed. 9. Further the details of information required in the bid is provided under clause 20 of Ext.P1. In clause 20.1 the technical bid is stated to be consisting of EMD, cost of tender documents, power of attorney, organizational details, experience details, JV/Consortium agreement etc. Petitioner has cautiously avoided producing the joint venture/ consortium agreement that they have submitted with the tender originally, evident from Ext.R3(b). As per Ext.R3(b) agreement, JV/Consortium consisted of; 1) TBAS Construction (35%) (2) Supreme Infrastructure India Ltd. (35%) (3) Indian Erectors Engineering Contractors (30%). As per the terms and conditions of the tender, the most experienced partner will be nominated as leading partner. W.P.(C) No. 18936 of 2018 10 In the present case, though the experienced partner was Supreme Infrastructure India Ltd., the TBAS Construction was nominated as the lead partner. Petitioner had also submitted the EMD amount stipulated in clause 16 of Ext.P1 in the name of TBAS Construction. As per clause 38.2 (g) of Ext.P1, for bid submission of JV/Consortium, bid security can be furnished by any partner but it shall be in the name of joint venture. Herein the bank guarantee submitted by the petitioner while submitting the bid was in the name of TBAS Construction and not in the name of JV, evident from Ext.R3(c). It is further submitted that, bid was accompanied with instruments towards cost of tender documents, EMD and integrity pact. The finer details of the instruments and other documents submitted by the petitioner was to be verified after bid opening and during technical evaluation. When the technical bid was opened, many technical deficiencies were found in the tender submitted by the petitioner. As per the tender conditions viz., clause 26 of W.P.(C) No. 18936 of 2018 11 instructions to tenderers, to assist in the examination of the bids, the employer may, at his discretion, ask any bidder for clarification of the bid. Non-conformity with the tender conditions with regard to the submission of EMD by JV/Consortium is not a clarification. It is the sole responsibility of the bidder to properly submit the bids complying with the tender conditions and instructions in all respects; the tender inviting authority is in no way obligated to make it proper. Even so, in order to give one more opportunity to the petitioner, the deficiencies were notified to the petitioner and sought clarification as per clauses 26, 30 and 38.2(s) of Ext.P1. From Ext.P3 produced by the petitioner, it is worthy to note that, same are not communications or documents sent by the respondent to the petitioner as stated in the body of the writ petition. It is submitted, to Ext.P3 communication dated 21.3.2018, petitioner submitted Ext.P4 covering letter along with attached documents. W.P.(C) No. 18936 of 2018 12 10. In this context, two aspects are worthy to be pointed out;(1) the petitioner has not produced all the documents they submitted along with Ext.P4 covering letter. (2) In Sl.No.11 of Ext.P4 covering letter, petitioner has styled the change of JV as on the basis of instructions and discussions with the Cochin Port Trust, which is not true. To Ext.P4 covering letter, another joint venture agreement was also annexed, which the petitioner again conveniently failed to produce along with Ext.P4. The JV agreement dated 12.3.2018 submitted by the petitioner along with Ext.P4 covering letter is produced as Ext.R3(d). Although Ext.R3(d) appears to have been executed on 12.3.2018, the stamp paper itself is dated 24.3.2018. It is very important to note that, the very constitution of the JV/Consortium itself has changed in Ext.R3(d). There are only two members in Ext.R3(d) whereas at the time of submission of tender on 12.3.2018, the joint venture/consortium consisted of three parties. In other words, it is submitted that, W.P.(C) No. 18936 of 2018 13 Ext.R3(d) agreement cannot be submitted after 12.3.2018 in view of the fact that, there is a change in the bidder himself. There cannot be a new bid or bidder after 12.3.2018, the last date for submission of bid as per clauses 22 and 23 of Ext.P1. It is also the case of the respondent that, the petitioner has not cured the defects pointed out in Ext.P3, which will make the petitioner ineligible to be considered, instead vide Ext.P4 covering letter, petitioner submitted additional details changing the whole identity of the JV/Consortium and its partners and the structure. 11. This is more so, when as per clause 30, no alteration of tender documents is permissible other than making clarifications as required by the employer. When clarifications were sought vide Ext.P3, petitioner changed the constitution of the JV and brought down the partners from 3 to 2. Therefore, the identity of the entity itself is changed by the petitioner. It is further submitted that, these deficiencies were noted after thorough evaluation and W.P.(C) No. 18936 of 2018 14 ## observations in respect of the bid submitted by the petitioner, which are as follows; “M/s.TBAS Construction Supreme Infrastructure India Ltd., Consortium, Aluva, Ernakulam:- They have initially furnished the JV/Consortium M/s.TBAS Construction Supreme Infrastructure India Ltd., Indian Erectors Engineering Contractors Consortium, Aluva, Ernakulam with three members : (1) M/s.TBAS Construction (2) Supreme Infrastructure India Pvt. Ltd.,(3) M/s.Indian Erectors Engineering Contractors and with M/s.TBAS Construction as Lead Member. On scrutiny, it was found that, the most experienced firm among the three was M/s. Supreme Infrastructure India Ltd. as per clause 38.2(b) of instruction to tenderers of tender document, the most experienced partner will be nominated as the lead partner. There were also many other discrepancies in the JV/Consortium agreement and related documents which were addressed to the party. As per clause 38.2(s) of Instructions to Tenderers, they were asked to modify the JV/Consortium agreement. On submitting additional details, they changed the W.P.(C) No. 18936 of 2018 15 JV/Consortium with two members only as (i) M/s.TBAS Construction and (ii) M/s.Supreme Infrastructure India Ltd. All the documents including JV agreement towards M/s. Supreme Infrastructure India Ltd. are signed by the Engineer, Tendering of the company, who has been given the specific power of Attorney, and only copy of which is attached. Towards the EMD, they have furnished Bank Guarantee No.IBG84746 dated 09.03.2018 issued from the Federal Bank Ltd., Pookkattupady Branch in the name of M/s. TBAS, Proprietor only and not in the name of JV/Consortium. In this regard as per clause 38.2(g) of instructions to tenderers for bid submission by JV/Consortium, Bid security as required can be furnished by any partner, but it shall be in the name of joint venture. The bid has been submitted as JV, the BG towards EMD shall be in the name of the JV. In this regard, the PMC Consultants as per their letter dated 25.4.2018 have informed that they have reviewed the matter and recommended to treat this bid as non-responsive (as their EMD submissions is not in accordance with the tender conditions) to W.P.(C) No. 18936 of 2018 16 qualify for the project. Since bidders have not complied with the basic requirement of submission of EMD as per Clause 16.1 of Instructions to Tenderers, as recommended by the Consultants, their bid is non-responsive and cannot be considered for opening of their price bid.” 12. It is also submitted that, the technical side of the e- tendering process is also a matter to be noted. The e- tendering process was entrusted with KEONICS, Bangalore. The process is notified by the Cochin Port Trust in the web portal maintained by KEONICS. The fact of opening of the price bid was notified to KEONICS as an addendum to the tender documents for hosting in the web portal. When it was thus intimated, communication has gone from the service providers to all parties irrespective of whether they were qualified or not. In such circumstances, the intimation of the date of opening of the price bid will not create any right on the petitioner, who is clearly ineligible in all other respects as required by the procedure for opening of price W.P.(C) No. 18936 of 2018 17 bid. Other contentions are also raised justifying the action of the respondent. 13. A detailed additional reply affidavit is filed by the petitioner reiterating the stand adopted in the writ petition. It is also submitted thereunder that, the date, 12.3.2018 shown in page 1 of Ext.R3(d), which is not even initialled, is not part of the document submitted along with Ext.P4. It is evident that, the copy produced by the respondent is not the copy that was submitted. On page 3 there is a recital of execution, but no date is entered in the first page of the agreement. Other contentions raised in the writ petition are also reiterated. 14. An additional statement is also filed by the 3[rd] respondent. It is also submitted that, the original of Ext.R3(d) is in possession of the respondent and it was submitted by the petitioner with the date '12.3.2018', written in hand. The date is not incorporated on the basis of any discussions as alleged by the petitioner. In Ext.P2 W.P.(C) No. 18936 of 2018 18 the bank has quoted the date of JV/Consortium agreement as 12.3.2018, which in turn proves that, the date was intentionally written by the petitioner as '12.3.2018'. In Ext.R3(d), it is also submitted that, the automated communication viz., Ext.P6 sent to the petitioner by the e- tender portal only states in one sentence the primary reason for disqualification of the petitioner i.e., EMD is not proper. That does not mean that, the bid submitted by the petitioner was rejected by the tender committee only because of the faulty EMD. Other contentions are also raised and produced additional documents. 15. Petitioner has also filed an application for amendment challenging the proceedings of the tender committee dated 30.4.2018 and also other aspects after the filing of the statement and additional statements by the 3[rd] respondent. 16. I have heard learned counsel for petitioner, learned ASGI and learned Standing Counsel appearing for W.P.(C) No. 18936 of 2018 19 respondents 2 and 3 and perused the pleadings and documents on record. 17. Learned counsel for petitioner reiterated the contentions raised in the writ petition as discussed above in detail. The first question to be considered is whether, essential conditions contained in Ext.P1 was complied with by the petitioner ? Clause 16 of Ext.P1 is relevant to the context, which read thus: ## “16. **Bid Security/EMD** 16.1 Each tender should be accompanied by an Earnest Money amounting to **Rs.22.34 lakhs (Rupees Twenty two lakhs and thirty four thousand only)** . EMD shall be furnished either through Demand Draft or Banker's Cheque drawn in favour of Financial Adviser & Chief Accounts Officer, Cochin Port Trust from any Nationalised Bank/Scheduled Bank in India or through an irrevocable Bank Guarantee (BG) valid for a period of 148 days from the date of opening of tender, enforceable and encashable at Cochin, drawn from any Nationalised Bank/Scheduled Bank operating in India, as per the proformat Annexure 12. In W.P.(C) No. 18936 of 2018 20 case, BG is furnished for EMD, BG shall be verified independently by the Port with the bank before finalization of technical offers; shall stand disqualified. The Earnest Money Deposit will not carry any interest. Any bid not accompanied by an acceptable Bid Security shall be treated as Nonresponsive and shall be rejected by the Employer.” Clause 16.1 quoted above is self explanatory, the same shall be read along with Ext.P8 (Annexure 12) format produced only along with the reply affidavit filed by the petitioner and also clause 38.2 of Ext.P1 which read thus: 38.2. Bid submitted by an unincorporated Joint Venture of companies (JV)/Consortium of companies (Consortium), shall comply with the following requirements: a) There shall be a Joint Venture Agreement between the constituent firms specific for the contract package for which the bids are submitted. The JV Agreement shall include among other things, the joint venture's objectives, the proposed management structures, the proposed distribution of responsibilities both financial as well as technical for execution of the work, the contribution of each partner to joint venture W.P.(C) No. 18936 of 2018 21 operation, the commitment of all partners to jointly and severally liable for due performance, recourse/sanctions within the joint venture in the event of default or withdrawal of any partner and arrangements for providing the required indemnities. b) the most experienced partner will be nominated as the Lead Partner and his nomination shall be evidenced by submitting power of attorney signed by the legally authorised signatories of all the partners. c) The Lead Partner of the joint venture will provide suitable experienced personnel for at least 3 (three) positions in the assignment during the whole period of contract execution and a statement to this effect should be included in the Joint Venture Agreement. d) The bid and in the case of successful bidder, the Agreement, shall be signed and/or executed in such a manner for making it legally binding on all partners (including operative parts of the ensuing Contract in respect of Agreement of Arbitration, etc.). The Contract shall be signed by legally authorised signatories of all partners. e) The Lead Partner shall be authorised to incur liabilities and to receive instructions for and on W.P.(C) No. 18936 of 2018 22 behalf of the partners of the Joint Venture and entire execution of the Contract including payment shall be carried out exclusively through the Lead Partner. A statement to this effect should be included in the Joint Venture Agreement. f) All partners of the Joint Venture shall be liable jointly and severally for the execution of the Contract in accordance with the Contract terms, and a statement to this effect should be included in the Joint Venture Agreement. g) Bid security as required can be furnished by any partner but it shall be in the name of joint venture. h) x x x x x x x x x x x x x x x x x x x i) x x x x x x x x x x x x x x x x x x x j) x x x x x x x x x x x x x x x x x x x k) x x x x x x x x x x x x x x x x x x x l) x x x x x x x x x x x x x x x x x x x m) x x x x x x x x x x x x x x x x x x x n) x x x x x x x x x x x x x x x x x x x o) x x x x x x x x x x x x x x x x x x x p) x x x x x x x x x x x x x x x x x x x q) x x x x x x x x x x x x x x x x x x x r) x x x x x x x x x x x x x x x x x x x s) In case, the Joint Venture/Consortium Agreement enclosed with the bid is not acceptable to the Employer, the JV/Consortium will modify the agreement so as to be acceptable to the Employer. W.P.(C) No. 18936 of 2018 23 t) Power of Attorney duly executed and signed by legally authorised signatories of all the partners, authorising the Lead Partner (a) to submit bid, negotiate and conclude contract and incur all liabilities therewith on behalf of the partner(s) of the JV/Consortium during the bidding process; and (b) in the event of a successful bid, to incur liabilities and receive instructions for and on behalf of the partner(s) of the JV/Consortium and to carry out the entire execution of the contract including payment, exclusively through Lead Partner, as per the proforma at Annexure XIV, which shall be duly authenticated by a notary public or equivalent certifying authority, shall be enclosed with the bid. u) An undertaking that all the partners are jointly and severally liable to the Employer for the performance of the contract shall be enclosed with the bid. v) In the event of any partner leaving the JV, it shall be intimated to the Employer within 30 days by other partner(s). Failure to do so shall be construed as default of the contractor and the employer may take action under relevant clause(s) of the Bid Document and/or General Terms and Conditions of Contract. W.P.(C) No. 18936 of 2018 24 w) The contractor shall not alter its composition or legal status without the prior written permission of the Employer. Failure to do so shall be construed as a default of the contractor and the Employer may take action under relevant clause(s) of the Bid Document and/or General terms and conditions of contract.” 18. Sub-clause (b) of clause 38.2 is relevant which states that, the most experienced partner will be nominated as the Lead Partner and his nomination shall be evidenced by submitting power of attorney signed by the legally authorised signatories of all the partners. Clause (g) is also relevant, which states that, bid security as required can be furnished by any partner but it shall be in the name of joint venture. 19. Therefore, on a reading of the aforequoted provisions, it is evident that, the bid security shall be in the name of joint venture. Petitioner has no case that, the bid security was provided by the partner in the name of joint venture. The bid security is offered by the petitioner and W.P.(C) No. 18936 of 2018 25 the same is in the name of the petitioner alone and not in the name of joint venture. The sole reason assigned by the petitioner in the reply affidavit is that, the format of the bid security viz., Ext.P8 shows that, it need be in the name of a x x x company registered under the provisions of having its x x x registered office at . Therefore, according to the petitioner, the format shows that, the bid security need only be in the name of petitioner company alone. 20. I do not find any force in the said contention in view of the precise nature of the provision contained under Ext.P1 with respect to the nature of bid security to be offered. True it can be presented by the petitioner, but it shall be in the name of joint venture. Since the bid submitted by the petitioner is deviating from such precise conditions contained under Ext.P1, I am of the considered opinion that, petitioner has not submitted the bid in proper manner, which is an essential requirement of acceptance of the technical bid. Even though, the judgmet of the Apex W.P.(C) No. 18936 of 2018 26 Court in **G.J.Fernandez v. State of Karnataka and others** [(1990) 2 SCC 488)], **Poddar Steel Corporation v. Ganesh Engineering Works and others** [(1991) 3 SCC 273] and **Central Coalfields Limited and another v. SLL-SML (Joint Venture Consortium) and others** [(2016) 8 SCC 622] are relied upon by the petitioner to canvass the proposition that, the condition is not essential, on a reading of the judgement, it is clear that, for making such departure from the tender conditions, the condition should not be classified as an essential one and deviation from such condition will not affect the tender submitted by other participants in the bid. In my considered opinion, the deviation made by the petitioner is an essential condition since the bid security is to be drawn by the joint venture making the joint venture partner liable for any discrepancies or illegalities committed by a joint venture. 21. Having evaluated so, the first issue raised by the petitioner with respect to the submission of the bid security W.P.(C) No. 18936 of 2018 27 is unable to be countenanced, not being legal. A further contention advanced by the petitioner is that, Ext.P8 format shows that, the bid security can only be, by a company and not a consortium. However, learned counsel appearing for the respondents submitted that, the same format is applicable to any tender to be submitted as per Ext.P1 by various kind of tenderers. I find force in the said contention since no separate formats are provided to meet with the requirement for different types of tenderers. Which thus means, the consortium had to use the format in accordance with its requirement. So also, yet another contention advanced is that, as per Ext.P5 order, petitioner was also informed about the price bid opening. Therefore, it can only be presumed that, pre-qualification bid submitted by the petitioner was accepted and petitioner is qualified for the price bid opening. However, it is clear from Ext.P6, which bears the same date viz., 4.6.2018 that, the pre- W.P.(C) No. 18936 of 2018 28 qualification bid of the petitioner was declined for the reason that, the petitioner has not met the requirement of submission of EMD. Merely because there is some mistake or error in the computer generated order, that cannot be taken advantage of by the petitioner since it is an admitted fact that, the EMD was not submitted by the petitioner in accordance with the stipulations contained under notice inviting tender. 22. In my considered opinion, the approach of the respondents declining technical bid of the petitioner is correct and legal since it is a mandatory requirement contained under Ext.P1. To draw an analogy, if all the other bidders have submitted bid in accordance with the stipulations contained under Ext.P1 and the EMD submitted by the petitioner is not of the joint venture, and if the petitioner is pre-qualified without submission of proper EMD, the action on the part of the respondents would become illegal, arbitrary and unfair. Viewed in any W.P.(C) No. 18936 of 2018 29 circumstances, in my considered opinion, the action undertaken by the respondents cannot be said to be an arbitrary action. 23.It is also submitted by the respondents that, the documents submitted by the petitioner produced as Ext.P2 was not submitted before the tendering authority in the manner submitted in the writ petition. As per Ext.P3, the respondents have pointed out certain defects with respect to the bid submitted by the petitioner. As per serial No.11, it is categorically stated that, the most experienced member is not the lead member. It is further pointed out that, M/s. Supreme Infrastructure India Limited, shall be the lead member. However, when the corrections were carried out by the petitioner along with the requirement pointed out in Ext.P3, a new agreement is produced in which, instead of two JV partners along with the petitioner, there was only 1 partner. Therefore, according to the respondents, the character and nature of the bid submitted by the petitioner W.P.(C) No. 18936 of 2018 30 was changed completely when the petitioner was pointed out that, the bid submitted is not in accordance with clause 38.2 of Ext.P1 notice inviting tender. Therefore, according to the respondent, the conditions which are mandatory and imperative in nature, in Ext.P1 notice inviting tender were violated by the petitioner and consequent to the shortcomings on the part of the petitioner alone, the technical bid of the petitioner was rejected. So also the last date of submission of the bid was 12.3.2018. If at all the petitioner is to make any corrections in the bid submitted, it can only be the corrections pointed out and not submitting the bid with a new agreement of joint venture partnership. To top up all those aspects joint venture is found to be a legal entity by the Apex Court in **New Horizons Ltd. and another v. Union of India and others** [(1995) 1 SCC 478]. 24. It is also pointed out, as per clause 2.8 of Ext.P1, the bid received after the last date will be rejected. Therefore, re-submitted bid with a new joint venture W.P.(C) No. 18936 of 2018 31 agreement on 24.3.2018, is a belated submission of the bid after the cut off date. So also it is pertinent to point out that, if the technical bid of the petitioner is accepted, the same would be a clear negation of Ext.P1 notice inviting tender interfering with the rights of other bidders, which will in turn become an arbitrary action on the part of the respondents. Moreover when a term of the notice inviting tender is said to be an essential condition by the tender inviting authority, it is to be accepted/respected so, unless the participant in the tender establishes, otherwise with cogent and convincing reasons. Even though petitioner has also a case that, having not pointed out the defects in Ext.P3, respondents are not at liberty to point out the same in the writ petition since it will become an arbitrary action, I do not find much force in the contention, since it is the duty and obligation of the bidder to submit the bid defect free, in terms of Ext.P1 notice inviting tender. So also the power exercised by the respondents to seek clarification in W.P.(C) No. 18936 of 2018 32 accordance with the provision of Ext.P1, cannot be termed or converted as an enabling situation for the petitioner to contend that the respondent has failed to point out the entire defects. To substantiate the said contention, learned counsel for the petitioner has invited my attention to the judgment of the Apex Court in **Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi & others** [(1998) 1 SCC 404]. However, I am of the firm opinion that, the standard requirements of an administrative action in respect of natural justice will not strictly apply to a commercial contract, where in free play in the joints is entitled to be enjoyed by the master, following the terms and conditions of the tender. Be it also noted the requirement of following the principles of natural justice, depends on facts and circumstances of each case. It is also noticeable that, the petitioner has not alleged any malafides in the action of the respondent. 25. Therefore, reckoning the factual and legal W.P.(C) No. 18936 of 2018 33 circumstances, I do not think, petitioner has made out any case justifying interference of this court under Article 226 of the Constitution of India, there being any adverse legal circumstances to exercise the power of judicial review. Writ petition fails, accordingly it is dismissed. Sd/- **SHAJI P. CHALY JUDGE** smv 25.6.2018