Delhi High Court (August 17, 2001) 2001 (TLS)125422 2001-DLT-93-722 :: 2001-AD (Del)-6-694 MODERN RADIO HOUSE Vs. UNION OF INDIA MUKUL MUDGAL ( 1 ) THE dispute involved in this writ petition relates to the competitive evaluation of two bids submitted by the petitioner and the respondent No. 2. The bids were invited for supply of MARANTZ Cassette Recorders for use by All india Radio which is a Unit of Respondent No. 1. UOI. The original bid document stated as follows; "time and Date of opening of tenders : 15. 00 hrs on 09. 9. 97 (Technical Bid) the tenders shall remain open for acceptance till : 09. 3. 98 s. No. Description of Stores qty. (Nos.) 1. Procurement of Professional Portable 645 nos. Cassette Recorder as per sepc. no. SSE-4066 enclosed. NOTE:- tender is to be submitted on the basis of Two Bid system as explained in para 10 of schedule to Tender. Alongwith the Technics Bid, copy of Price Bid with price columns left blank, is also required to be enclosed so that configuratipn of equipment and other optional items, accessories etc. could be examined. Discount offered - NIL is Sales Tax extra - Yes, if so, indicate the rate and nature. as applicable to cal @ 6%. Is Excise Duty extra - No. against form D @ 4% if so, indicate the rate and quantum of,excise duty alongwith assessable value. In case of imported stores, clearly indicate the applicable current rate of customs and counter valuing duty. . . . . . . " ( 2 ) THE other relevant Clause of the Tender is as follows: "1. A) Tenderers will give complete break up of the prices indicating clearly margin of profit etc. b) Prices should be indicated in words and figures. 2. If it is decided to ask for excise duty or any other charges as extra the same must be specifically stated. In the absence of such stipulation it will be presumed that the prices include all such duties and no claim for the same will be entertained. If it is desired by the tenderers to ask for sales tax to be paid extra, the same must be specifically stated. In the absence of such stipulation it will be presumed that the prices include all such duties and no claim for the same will be entertained. If it is desired by the tenderers to ask for sales tax to be paid extra, the same must be specifically stated. In the absence of any such stipulation in the tender it will be presumed that the prices quoted by the tenderers are inclusive of sales tax and no liability for payment of sales tax will be developed upon the purchaser. On tenderers, quoting sales tax as extra, sales tax will be paid to the seller at the rate at which it is liable to be assessed or has actually been assessed provided the transaction of sales is liable to sales tax and the same is payable as per the terms of the contract. 3. This tender is not transferable. " ( 3 ) ON 15th of June, 1998 a supplementary bid was asked for by the respondent No. 1-UOI. The relevant portions of the said supplementary bid read as under: "sub: This office Tender Enquiry of even number for procurement of Professional Portable Cassette recorders. REF: Your Tender No. MRW/air-MAR/97 dt. 8. 9. 97 sir, with reference to above, please note that following accessories are required aiongwith professional Cassette Recorders :- 1. Marantz Model No. PMD 222 (Mono) a) Rechargeable battery pack type RB 430 one for each recorder. b) Carrying case - one for each recorder. c) Service Manual - Total 195 nos. You may also confirm that A/c Adaptor supplied aiongwith-recorders shall-work on 230 V A/c Mains. You may also confirm that your offer shall remain open for acceptance till 30. 08. 98 and that the prices in your commercial bid are firm and final without any variation whatsoever. The supplementary price bid should reach this office through tender box not later than 1200 hours sharp on 30. 06. 98 and this Mould be opened alongwith the original Commercial Bid at 1500 hours on the sam day in Room No. 347, P and D Unit, dg:air, Akashvani Bhavan, New Delhi. You may depute your authorised representative, in case of your interested in attending the same. " ( 4 ) ON 29th June, 1998 the petitioner. submitted its revised bid the relevant portion of which reads as follows:- " ITEM DESCRIPTION UNIT PRICE (Rs) 1. You may depute your authorised representative, in case of your interested in attending the same. " ( 4 ) ON 29th June, 1998 the petitioner. submitted its revised bid the relevant portion of which reads as follows:- " ITEM DESCRIPTION UNIT PRICE (Rs) 1. Marantz Model PMD 222 ( Mono ) * 27,060/00 a) Rechargeable battery pack RB 430 3,564/00 b) Carrying Case CLC 221 1,900/00 c) Service Manual free of Cost. d) A/c Adaptor DA 39 943/00 3. Recommended Spares for PMD 222 and PMD 430 a) PMD BELT KIT 218/00 b) MM000540r 1260/00 c) 153t002590 251/00 d) SM 0101121r 73/00 e) 436 T 248010 677/00 f) LH82162030 2547/00 g)153t104500 271/00 h) 153t058010 146/00 i) HC 10037020 381/00 j) 242t26210r 35/00 k) SM 0101114r 81/00 1) HC 10055210 335/00"the footnote to the said revised stated as follows: *already quoted in the Commercial bid. Now quoting revised price ( 5 ) THE petitioner also relied on the manual of the cassette recorder which according to the petitioner showed that the DA-39 which is the Alternate Current (hereinafter referred to as the AC ) Adapter is a standard feature and part of the PMD 222 Portable Recorder of MARANTZ. In fact the petitioner clarified this by a letter dated 7th of december, 1998. ( 6 ) THERE are two facets of the dispute involved in the present case for comparing and evaluating the two tenders given by the petitioner and respondent No. 2. The petitioner s case is that its revised tender bid was inclusive of the sales tax whereas the respondents 1 and 2 contend to the contrary. However, that issue may not be the determinative factor because even if it is assumed that the petitioner s bid was inclusive of trade and sales taxes even then its prices etc. exclusive of the price of the A. C. Adapter were admittedly lower than that of the respondent no. 2. The dispute which; needs resolution, therefore, pertains to the bid relating to the A. C. Adapter, quoted by the petitioner. The petitioner s plea is that the A. C adopter was already a part of its bid and could not be taken into reckoning while evaluating the prices quoted by it viz-a-viz the prices quoted by respondent No. 2. 2. The dispute which; needs resolution, therefore, pertains to the bid relating to the A. C. Adapter, quoted by the petitioner. The petitioner s plea is that the A. C adopter was already a part of its bid and could not be taken into reckoning while evaluating the prices quoted by it viz-a-viz the prices quoted by respondent No. 2. It is also in dispute that if the A. C. Adapter price is added to the prices, quoted by the petitioner then its bid goes higher than that of the respondent. No. 2. and the respondent No. 2 s bid then is the lowest bid. ( 7 ) THEREFORE, it is necessary:to determine and evaluate the petitioner s bid and the supplementary bid which as per the tenders were to be opened together. The learned counsel for the petitioner has sought to rely upon the subsequent letters sent by it to the Union of India, i. e. , respondent no. 1 after the, last date for the submission of the supplementary tender, i. e. , 30th of June, 1998, sent by the petitioner such as Letter dated 7th December, 1998 by which it was asserted that the A/c Adapter was a standard feature and part of the PMD-222 Portable Recorder of MARANTZ. However, in my view once thetenders have been submitted it is the tender documents that have to be construed to arrive at the scope and effect of the submitted tender and the tender evaluation should not be based on any subsequent correspondence sent by any of the parties. This otherwise would lead to an. :avoidable, position as post tender afterthoughts and subsequent information gathered from the marketplace inclusive of the competitor s pricing set-up could be sought to be used to suitably modify the original tender by post tender correspondence. Consequently I am only looking at the original tender and the supplementary bid submitted by the petitioner. ( 8 ) THE following factors are. significant: (a) that in the supplementary bid the petitioner has mentioned 4; items, i. e. , a) rechargeable battery pack; b) Carrying case CLC 21; c) Service Manual; d) A/c adapter DA 39; (b) that in so far as the first second and fourth items were concerned, rates were indicated in respect of each of them and as. significant: (a) that in the supplementary bid the petitioner has mentioned 4; items, i. e. , a) rechargeable battery pack; b) Carrying case CLC 21; c) Service Manual; d) A/c adapter DA 39; (b) that in so far as the first second and fourth items were concerned, rates were indicated in respect of each of them and as. far as service manual which is the third item is concerned, it was specifically stated that it is free of cost (c) that the revised tender of the petitioner also quotes clearly in the footnote that reference to the earlier bid and states "already quoted in the, Commercial Bid. Now quoting revised price. " ( 9 ) IN my view, the fact. that the petitioner has specifically mentioned the A. C. Adapter separately with its price is a factor which is significant. The reference to the brochure/catalogue of the article bid to contend that the A. C. . Adapter was a part and parcel of the original equipment, cannot have any relevance when the price of the a. C. Adapter has been specifically quoted by the petitioner. In respect of item for which no price was charged i. e. , free as in Item (C) it was specifically so stated. It is the bid alone which has to be considered and it is not the brochure/catalogue which may have been sent later on or even simultaneously. Furthermore the learned counsel for the petitioner also relied Upon several extensions of their offer which the bidders were required to accede to keep the bid open. He submitted that since the bids validity was extended, the post bid correspondence could be looked at. ( 10 ) IN my view whatever be the nature and extent of the extensions sought for by the respondent No. 1 to keep the offer open, the bids still have to be considered in the original form, and no post bid correspondence or documents can be used in support of and/or amplification of the bid. Mere extensions do not make the. post tender correspondence and events relevant for considering the bid which must be evaluated in the form and manner in which it is submitted. Mere extensions do not make the. post tender correspondence and events relevant for considering the bid which must be evaluated in the form and manner in which it is submitted. ( 11 ) IN this view of the matter, since I have found that the respondent No. 1 had correctly taken into account the a. C. Adapter as a part of the petitioner s bid, no fault can be found in awarding tender to respondent No. 2 because it is not disputed before me that if the A. C. Adapter is added to the price of the products sought to be supplied by the petitioner then the bid of the respondent No. 2 is the lowest. Consequently the writ petition fails and is accordingly dismissed with no orders as to costs. --- *** --- .