1 2025:CGHC:17943-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 1942 of 2025 Amit Enterprises Private Limited Through Its Authorized Representative Khilesh Kumar Patle, Having Its Registered Office At Jalan Industrial Complex, Village Baniara, PO Begri, PS Domjur, District Howrah, West Bengal ... Petitioner versus 1 - Union Of India Through The Ministry Of Commerce And Industry, Vanijya Bhawan, New Delhi 2 - Government E-Marketplace, Through Its Chief Executive Officer And Director, 3rd Floor Tower II, Jeevan Bharti Building, Connaught Place, New Delhi 3 - South Eastern Coalfield Limited Through The CMD, Seepat Road, Bilaspur, Chhattisgarh- 495006 ... Respondents For Petitioner : Mr.Ratan K.Singh, Senior Advocate through video conferencing assisted by Mr.Abhyuday Singh, Advocate For Respondent No.1 For Respondent No.3 : : Ms.Anmol Sharma, Central Government Counsel Mr.Pankaj Singh, Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Arvind Kumar Verma , Judge BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.04.24 15:57:08 +0530 2 Order on Board Per Ramesh Sinha , Chief Justice 21.04.2025 1. Proceedings of this matter have been taken through video conferencing. 2. Heard Mr.Ratan K.Singh, learned Senior Advocate through video conferencing assisted by Mr.Abhyuday Singh, learned counsel for the petitioner as well as Ms.Anmol Sharma, learned Central Government Counsel appearing for respondent No.1 and Mr.Pankaj Singh, learned counsel appearing for respondent No.3. 3. The present writ petition has been filed by the petitioner with the following prayers: “10.1 It is prayed that this Hon'ble Court may kindly be pleased to issue an appropriate writ quashing and setting aside the disqualification of the Petitioner in Bid Number GEM/2024/B/4848773 vide communication dated 02.08.2024 (ANNEXURE P-4) 10.2 It is prayed that this Hon'ble Court may kindly be pleased to issue an appropriate writ quashing and setting aside the rejection of clarification representation dated 20.11.2024 in Bid Number GEM/2024/B/4848773 (ANNEXURE P-1). 10.3 It is prayed that this Hon'ble Court may kindly be pleased to issue an appropriate writ directing the Respondent no. 3 to open the price bid of the Petitioner 3 and thus proceed with the tender. 10.4 Alternatively, it is prayed that this Hon'ble Court may kindly be pleased to issue an appropriate writ directing the Respondent no. 3 to place the clarification representation (ANNEXURE P-5) before the Tender Committee and thus direct the Respondent no. 3 to decide the same with a reasoned order. 10.5 Any other relief, which this Hon'ble Court, may deem fir and proper, in the facts and circumstances of the case.” 4. Facts of the case are that the petitioner is a company incorporated under Companies Act, 2013 and is engaged in the business of providing heavy castings and heavy machinery parts for use in mining activities. The Petitioner company commands international reputation with worldwide supply and frequently participates in tenders for supply of heavy industrial equipments to respondent No. 3. The Petitioner Company participated in a trial tender for source development towards purchase of 300T capacity Tyre Dismantler Machine suitable for Tyres up to 240T Dumper. A 'trial tender for source development' is floated to explore potential suppliers and gather information, helping refine requirements and assess capabilities. The said tender was floated by respondent No. 1 through the Government e-Marketplace portal, commonly referred to as GeM portal. The said portal is a National Public Procurement Portal, being a dedicated a market for different goods & services procured by Government Organisations/Departments/PSUs. 4 Thus, the Petitioner had to submit the documents through the Respondent No.2 portal and the portal handled any and all the communication done in furtherance of the tender. 5. As per the NIT, the participants had no submit their application in three parts, being Technical Qualification, Commercial Evaluation and the Price bid. The participant who successfully qualified the Technical Qualification and Commercial Evaluation were eligible for competition under the Price Bid. Upon two or more qualified bidders, the Respondents were required to conduct reverse auction to discover the lowest rate available for the purchase of the heavy machinery required under the NIT. The Petitioner Company participated in the Trial Tender being Bid Number GEM/2024/8/4848773 hosted through GeM portal. As such, the Petitioner Company had to upload the documents in support of their technical qualifications, commercial evaluation and price bid through the portal under separate sub-heads provided for different requirements by the tenderer. Though not a part of the NIT floated by the Respondent No. 3, while submitting the price bid, the GeM portal displayed a message that the price thus quoted by the participants towards the bid should be inclusive of all the components and tax. As such, the petitioner duly quoted the price inclusive of all the components and GST towards the price bid. Furthermore, under the heading of "Additional Documents to be uploaded under Commercial Evaluation, the Petitioner submitted a declaration of the components thus included in the price quoted by them under the price bid. However, upon evaluation of the technical bid on 02.08.2024, the Petitioner was disqualified with the reason endorsed as "Price has been quoted with price elements like GST, Freight, P&F and 5 Insurance as extra, whereas Gem & NIT requirement is of all inclusive prices". The same was communicated to the Petitioner on 03.08.2024, whereby the GeM portal advised that "Disqualified sellers may review the reason for rejection as recorded by the Buyer and may raise a one-time representation to the Buyer to challenge rejection if they feel that the rejection of their bid was not as per bid eligibility requirement. Please note that you must submit your comprehensive reasons as this one-time opportunity only". 6. In pursuance to the opportunity of challenging the reason for disqualification by submitting a representation thus seeking its review, the Petitioner submitted a comprehensive request for clarification, whereby it was clearly stated that the price quoted in the price bid is the 'landing rate' inclusive of all components and that the deceleration was submitted only to the effect of denoting the components included in the price. Thus, the petitioner clearly dispelled the misunderstanding by the Respondent No. 1 in reading the declaration as being an assertion of separate charges and thus unequivocally confirmed that the price indicated in the offer is a FOR destination price inclusive of all charged and taxes. However, the said representation was rejected by the Respondent No. 3 without any application of mind and appreciation of the clarification, whereby the representation was rejected by a one-line reasoning. The non-application of mind is also apparent from the fact that despite the unambiguous clarification that the price quoted by the Petitioner included all the components, the representation has been rejected while copying the very same reason word-to-word and comma-to-comma, which was given for disqualification. The order of rejection of representation indicated the 6 reason as "No merit in representation as Price has been quoted with price elements like GST, Freight, P&F and Insurance as extra, whereas Gem & NIT requirement is of all-inclusive prices". 7. Being aggrieved by the disqualification and rejection of representation, the Petitioner made several representations before the authorities within Respondent No. 3 institution for fair consideration of his clarification. The Petitioner was assured of a decision on his representation and hence the award of tender has not yet been concluded. However, despite lapse of substantial time, no action whatsoever has been taken by the Respondents No. 3 till date. Through a long period of continuous communication and requests for consideration, the Petitioner has come to the knowledge that its clarification was not even presented before the tender committee for consideration but was rejected at the threshold by the concerned ofÏcer responsible for accepting the document of clarification. The clarification submitted by the Petitioner was not even given fair consideration. It is fairly submitted that since the tender has not yet concluded, the Petitioner cannot procure and submit the documents towards the same and the Respondent No. 3 must be put to strict test of this allegation. The petitioner has duly complied with the conditions of the NIT and has not made any deviation. However, the Petitioner has been disqualified only upon the misunderstand of a document, towards which though a clarification was submitted, yet the same has been arbitrarily rejected. Thus, the Petitioner stands to suffer grave loss, without any fault on its part and hence the petitioner seeks the indulgence of this Court. 8. Learned Senior Advocate for the petitioner submits that the 7 disqualification of the Petitioner by the Respondents in Bid Number GEM/2024/B/4848773 is absolutely irrational, arbitrary, unfair and perverse, thus being a fit case calling for interference by this Court, as falling within the realm of conditions whereby this Court can exercise the power of judicial review in tender matters. It is apparent that the Petitioner has strictly adhered to the terms of the NIT and GeM and thus has quoted the price bid inclusive of all components and GST. However, the Respondents have misinterpreted the declaration of the components included in the price and thus have disqualified the Petitioner, without any fault on its part. Diligently, the Petitioner has submitted the clarification thus explaining the document, which has been rejected without any application of mind in an unfair manner, only to scuttle the competition in favour of a sole bidder. He further submits that the representation for clarification has been rejected without any application of mind, while repeating the order of disqualification, which is absolutely perverse. No reasonable authority could have rejected the request for review after due application of mind, since the clarification clearly mitigated and alleviated the reasons mentioned in the order of disqualification. There is no apparent deviation on part of the Petitioner from the conditions of the NIT, which could have been apprehended if the clarification had been considered objectively. Thus, the total non-application of mind imputes the rejection and disqualification as being completely irrational, unreasonable and perverse. He also submits that the petitioner also has a legitimate expectation that its representation for clarification ought to have been objectively considered by the Tender Committee, as per the procure laid down in Manual for procurement of Goods. However, the clarification 8 was shot down without ever being referred to the tender committee, thus making the entire process as a mere ruse and a sham proceeding. The manner of rejection raises a presumption that it was ever considered by any authority competent to apply its mind and take an objective decision. The entire purpose of giving an opportunity of calling for review has been negated and despoiled by the Respondents by not applying its mind to the representation. Thus, the Respondents have failed in adhering to the legitimate expectation and have failed on the touchstone of fairness and reasonableness in adopting the process of decision. 9. He contended that though it is trite law that this Court cannot sit as an expert over the decision of the tenderer, yer this Court can exercise the power of judicial review to test the adherence to the fundamental principles underling Article 14 of the Constitution of India. Thus, this is a fit case for this Court to examine the decision-making process and thus ensure that the representation has been decided fairly and without any irrelevant consideration. He further contended that the petitioner has duly complied with the conditions of the NIT and has not made any deviation. However, the Petitioner has been disqualified only upon the misunderstand of a document, towards which though a clarification was submitted, yet the same has been arbitrarily rejected. Thus, the Petitioner stands to suffer grave loss, without any fault on its part and thus must be interfered by this Court. As such, the writ petition deserves to be allowed and disqualification of the petitioner in Bid Number GEM/2024/B/4848773 vide communication dated 2.8.2024 (Annexure P-4) and rejection of clarification representation dated 20.11.2024 in Bid Number GEM/2024/B/4848773 (Annexure P-1) deserve to be set aside. 9 10. On the other hand, learned counsel appearing for respondent No.3 opposes the submissions made by learned Senior Advocate for the petitioner and submits that in terms of Clause 6 (iii) of the General Terms & Conditions, which is binding upon the Petitioner as has been provided in Note 4 of the ‘Bid Document’, Petitioner/Bidder was required/mandated to submit an all-inclusive/ consolidated/ landed price, but in the instant case, the Petitioner/Bidder failed to adhere to the said condition and instead, while submitting the bid, uploaded the document bearing number AEPL/SECL-HQ/24-25/02 dated 06.05.2024 wherein Petitioner proclaimed/declared that it shall charge ‘extra’ the following on basic price – (i) Packing & Forwarding @ .85 %; (ii) Freight Charges @ 1.25 %; (iii) Insurance @ .5 % or actual; and (iv) GST @ 18%. It is submitted that the Petitioner/Bidder deviated from an essential stipulation contained in the General Terms & Conditions and failed to quote an all-inclusive/consolidated price despite submitting an undertaking before the Respondent-South Eastern Coalfields Limited that it shall abide by all the stipulations of General Terms & Conditions. In view of above said deviation on part of the Petitioner/Bidder which corrupted the entire bidding process, Respondent-South Eastern Coalfields Limited was compelled to oust the Petitioner/Bidder from the tendering process. He also submits that in view of repeated representation/agitation made by the Petitioner/Bidder against its disqualification, the same was referred to the Independent Expert Monitor, an independent agency, to examine the cause espoused by the Petitioner/Bidder. It is submitted that the Independent Expert Monitor, 10 upon due consideration and thorough investigation, rejected the contention and agitation as was raised by the Petitioner/Bidder and upheld the tendering process. Furthermore, the work order in respect to the subject tender has already been issued on 12.04.2025 and the tendering process stands concluded as on date rendering the present petition academic. He contended that the Petitioner/Bidder was disqualified on 02.08.2024, as is evident from Annexure P/4, and representation made against the said disqualification was rejected on 20.11.2024, as is reflected from Annexure P/1, and the Petitioner/Bidder chose to approach this Court only on 09.04.2025 i.e. after a delay of more than four months and made no effort to explain the said delay. Hence, it is humbly submitted that the present petition suffers from delay and latches and ought to be rejected on the said count alone. He further contended that reliance placed on representation dated 03.08.2024 (Annexure P/5) by the Petitioner/Bidder wherein an explanation/clarification was sought to be offered does not help the case of the Petitioner/Bidder as the said explanation/clarification fails to reconcile with the bide document bearing number AEPL/SECL-HQ/24- 25/02 dated 06.05.2024 (Annexure P/3), wherein the Petitioner proclaimed/declared that it shall charge ‘extra’ the following on basic price – (i) Packing & Forwarding @ .85 %; (ii) Freight Charges @ 1.25 %; (iii) Insurance @ .5 % or actual; and (iv) GST @ 18 %. As Petitioner/Bidder has categorically proclaimed/declared that it shall charge ‘extra’ on basic price which violated an essential stipulation contained in the General Terms & Conditions, Respondent South 11 Eastern Coalfields was forced to oust the Petitioner/Bidder from the tendering process. 11. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also perused the documents appended with writ petition. 12. From perusal of the documents, it transpires that in terms of Clause 6 (iii) of the General Terms & Conditions, which is binding upon the Petitioner as has been provided in Note 4 of the ‘Bid Document’, the Petitioner/Bidder was required/mandated to submit an all-inclusive/ consolidated/ landed price, but in the instant case, the Petitioner/Bidder failed to adhere to the said condition and instead, while submitting the bid, uploaded the document bearing number AEPL/SECL-HQ/24-25/02 dated 06.05.2024 wherein the Petitioner proclaimed/declared that it shall charge ‘extra’ the following on basic price – (i) Packing & Forwarding @ .85 %; (ii) Freight Charges @ 1.25 %; (iii) Insurance @ .5 % or actual; and (iv) GST @ 18 %. Thus, the Petitioner/Bidder deviated from an essential stipulation contained in the General Terms & Conditions and failed to quote an all-inclusive/consolidated price despite submitting an undertaking before the Respondent-South Eastern Coalfields Limited that it shall abide by all the stipulations of General Terms & Conditions. In view of above said deviation on part of the Petitioner/Bidder, the Respondent-South Eastern Coalfields Limited was compelled to oust the Petitioner/Bidder from the tendering process. It further transpires that in view of repeated representation/agitation made 12 by the Petitioner/Bidder against its disqualification, the same was referred to the Independent Expert Monitor, an independent agency, to examine the cause espoused by the Petitioner/Bidder and the Independent Expert Monitor upon due consideration and thorough investigation rejected the contention and agitation as was raised by the Petitioner/Bidder and upheld the tendering process. Furthermore, the work order in respect to the subject tender has already been issued on 12.04.2025 and the tendering process stands concluded. It also transpires that the Petitioner/Bidder was disqualified on 02.08.2024, as is evident from Annexure P/4, and representation made against the said disqualification was rejected on 20.11.2024, as is reflected from Annexure P/1, and the Petitioner/Bidder chose to approach this Court only on 09.04.2025 i.e. after a delay of more than four months and made no effort to explain the said delay. Further, reliance placed on representation dated 03.08.2024 by the Petitioner/Bidder wherein an explanation/clarification was sought to be offered does not help the case of the Petitioner/Bidder as the said explanation/clarification fails to reconcile with the bide document bearing number AEPL/SECL-HQ/24- 25/02 dated 06.05.2024 wherein the Petitioner proclaimed/declared that it shall charge ‘extra’ the following on basic price – (i) Packing & Forwarding @ .85 %; (ii) Freight Charges @ 1.25 %; (iii) Insurance @ .5 % or actual; and (iv) GST @ 18 %. 13. Considering the submissions advanced by learned counsel for the parties, further considering the fact that work order in respect to the subject tender has already been issued on 12.04.2025 and the 13 tendering process stands concluded and also considering that the Petitioner/Bidder was disqualified on 02.08.2024, representation made against the said disqualification was rejected on 20.11.2024 and the Petitioner/Bidder has filed this writ petition only on 09.04.2025 i.e. after a delay of more than four months, we do not find any good ground to entertain this writ petition. 14. Accordingly, the writ petition being devoid of merit is liable to be and is hereby dismissed. No cost(s). Sd/- Sd/- (Arvind Kumar Verma) (Ramesh Sinha) Judge Chief Justice Bablu