GLODYNE TECHNOSERVE LTD.versusSTATE OF M.P. & ORS.

                               ·,


                  [2011] 15 (ADDL.) S.C.R. 930


A                GLODYNE TECHNOSERVE LTD.
                                    V.
                      STATE OF M.P. & ORS.
                  (Civil Appeal No. 2907 of 2011)
                          APRIL 04, 2011
B
         [ALTAMAS KABIR AND .CYRIAC JOSEPH, JJ.]
                                         '   '



       Tender - Technical Bid - Appointment of vendor for
  District Mechanism for Public Distribution System - Issuance
c of Request for Proposal (RFP) - Pre qualification (Eligibility
  Criteria) provided in the RFP - Subsequently, tender
  documents and bidder's check list amended - Issuance of
  corrigendum - Quality Certificate in the form of an active /SO
  9001 :2000 certification to be submitted alongwith bid papers
  and other documents - Appellant submitted copy of the /SO
0
  90001:2000 certificate of the previous year instead of the
  current year documents for the bid even though it had the
  active ISO 90001:2000 certification at the time of making of
  the bid - Disqualification of the appellant from consideration
  - On appeal held: Appellant had a valid and active /SO
E 9001:2000 certification which it did not submit along with the
  Bid documents, may be due to inadvertence - However,
  whether such an explanation was to be accepted or not lay ·
  within the discretionary powers of the authority inviting the bids
  - Rejection of the Technical Bid of the appellant cannot be
F said to be peNerse or atbitrary.
       In the year 2009, the Government of Madhya Pradesh
  in the Department of Food, Civil Supplies and Consumer
  Protection issued a Request for Proposal (RFP) for the
  appointment of a vendor for District Mechanism for Public
G Distribution System. The-pre qualification (Eligibility
  Criteria) was provided in RFP. Subsequently, the
  provisions of Section 3 of the Tender documents and
  Section 7 of the Bidder's Check List were amended. The
  Quality Certificate in the form of an active ISO 9001 :2000
H                              930
 GLODYNE TECHNOSERVE LTD. v. STATE OF M.P. & 931
                  ORS.
certification was to be submitted alongwith the other A
documents with the bid papers. The appellant, a Public
Limited Company was disqualified from consideration
since through inadvertence or otherwise, along with the
Tender documents it had filed a copy of the ISO
9001 :2000 certificate of the previous year, instead of the 8
current year, although, it did have the said valid ISO
9001 :2000 certificate at the time of making of the bid.
Therefore, the appellant filed the instant appeal.
     Dismissing the appeal, the Court
      HELD: 1.1. The introduction of the Corrigendum C
 completely changed the provision in the Bidder's
  Response Form relating to submission of the Quality
 Certificate in the form of an active ISO
 9001 :2000certification. In any event, the appellant's
 contention based on clause 9 of Section 7.1.1 of the RFP D
 as it stood prior to corrigendum is misconceived. The
 said clause 9 obliges a tenderer to produce along with
 the bid document a copy of the Quality certificate which
 is valid and active on the date of submission of the bid
 and it does not enable a bidder to withhold the copy of E
such Quality.Certificate. Where the Quality certificate will
be expiring shortly and is due for renewal, the bidder is
also obliged to produce the renewed certificate at the
time Qf signing of the contract. The appellant claimed to
have a valid and active ISO 9001 :2000 certificate at the
time> of submission of the bid, but did not produce a copy F
of the said certificate along with the bid document. [Para
32) (945-H; 946-A-B, D-E]
     1.2. The submissions made on behalf of the appellant
proceeds on the basis~that it was entitled, almost as a G
matter of right, not to submit the documents required to
be submitted along with the bid ·documents on the
supposition that, even if such documents were valid and
active, they could be submitted at the time of signing of
the Memorandum of Understanding. The appellant had a
                                                          H
   932   SUPREME COURT .REPORTS (2011] 15 (ADDL.) S.C.R.


A valid and active ISO 9001 :2000 certification which it did
  not submit along with the Bid documents, may be due to
  inadvertence, but whether such explanation was to be
  accepted or not lay within the discretionary powers of the
  authority inviting the bids. The decision taken to reject
8 the Technical Bid of the appellant cannot be said to be
  perverse or arbitrary. [Para 33] [946-F·H]
       1.3. Even the question as to whether 'NP' the
  consultant agency had obtained information that the
  appellant had a valid and active ISO 9001 :2000
c certification and had passed on such information to 'K' •
  Commissioner-cum-Director, Food, Civil supplies and
  Consumer Protection does not make any difference,
  since the same was never asked for or placed before the
  Tender Advisory Committee constituted for the purpose
  of scrutinizing the Bids despite the presence of 'NP'·
D Consultant for the selection of suitable candidates, at the
  meeting of the Advisory Committee at 2.15 p.m. on the
  same day. [Para 34] [947-B-C]
       Tata Cellular vs. Union of India (1994) 6 SCC 651; New
E Horizons Limited and Anr. vs. Union of India and Ors. (1995)
  1 SCC 478; Reliance Energy Ltd. and Anr. vs. Maharashtra
  State Road Development Coipn. Ltd. and Ors. (2007) 8 SCC
  1; Siemens Public Communication Network Pvt. Ltd. vs.
  Union of India and Ors. (2008) 16 SCC 215; Ram Gajadhar
  Nishad vs. State ofU.P. (1990) 2 SCC 486; Sorath Builders
F vs. Shreejikrupa Buildcon Ltd. and Anr. (2009) 11 SCC 9 -
  referred to.
                         Case Law Reference:
       (1994) 6 sec 651             Referred to.      Para 15
G      (1995) 1 sec 478             Referred to.      Para 17
       (2001) 8 sec 1               Referred to.      Para 17
       (2008) 16 sec 215            Referred to.      Para 24
       (1990) 2 sec 486             Referred to.      Para 25
H      (2009) 11 sec 9              Referred to.      Para 26
GLODYNE TECHNOSERVE LTD. v. STATE OF M.P. & 933
                 ORS.

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.              A
2907 of 2011.
     From the Judgment & Order dated 29.7.2010 of the High
Court of Madhya Pradesh at Jabalpur in Writ Petition No. 7348
of 2010.
                                                                 B
.   Harish Salve, Dr. A.M. Singhvi, Shyam Divan, Vikram
Mehta, Rohit Bhat, Nar Hari Singh, Vikas Mehta for the
Appellant.
     G.E. \/ahanvati, A.G. Ravindra Shrivastava, B.S. Banthia,
Vikas Upadhyay, Anup Jain, Pars Kuhad, Pancham Surana,           c
Biju Mattam, lndu Sharma, Vibha Datta Makhija, Rishi Kesh for
the Respondents.
     The Judgment of the Court was delivered by
     ALTAMAS KABIR, J. 1. Leave granted.
                                                                 D
       2. The Appellant is a Public Limited Company which
  claims-to have an annual turnover of almost Rs.750 crores and
  has been carrying out large scale infrastructure projects for
·various State Governments in India, including Maharashtra and
  Bihar, where bio-metrics of millions of people are required to E
 be collected to ensure identification of the population which is
 targeted as beneficiaries of various Government Welfare
 Schemes, such as the National Rural Employment Guarantee
 Scheme. The Appellant Company has been holding ISO
 9001 :2000 Certificate for the highest quality standards in F
 respect of the services rendered by it. The Appellant Company·
 claims to have carried out a pilot project in respect of 10 shops
 in the State Government Public Distribution System in Bhopal.
      3. On 12th December, 2009, the Government of Madhya
Pradesh in the Department of Food, Civil Supplies and G
Consumer Protection, hereinafter referred to as "FCS", issued
a Request for Proposal, hereinafter referred to as "RFP", for·
the appointment of a vendor for District Mechanism for Public
Distribution System, hereinafter referred to as "PDS". The last
date for submission of bids was 7th January, 2010, which was
subsequently extended till 17th February, 2010.                 H
    934    SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.


A         4. The RFP, as it stood at the time when the bids were
    invited, included Section 3.1 which, inter alia, provides that the
 .. bidder/one partner in the consortium must possess a valid
    certification in the Capability Maturity Model (CMM level 3 or
    above). In addition, the bidder/all partners of consortium (in
8 case of consortium) should have an active (valid at least till
    June, 2010) ISO 9001 :2000 certificate which had to be
    submitted as qualifying documents.
        5. Subsequently, on 18th January, 2010, the pre-
  qualification (Eligibility Criteria) provided in the RFP was
c changed and the corrigendum, as far as it relates to Section
  3.1, was amended so that the bidder/one partner in the
  consortium had to possess a valid certification in the Capability
  Maturity Model (CMM level 3 or above). In case of consortium,
  the partner develo;>ing the software application should have
  CMM level 3 certification and the bidder/lead partners of the
0
  consortium (in case of consortium, should have an active (valid
  at least till June, 2010) ISO 9001 :2000 certification at the tim~
  of submission of the bid. The documents to be submitted along
  with the bid remained the same. Vide the corrigendum dated .
  18th January, 2010, Section 7 which provided for the Bidder
E Check List, was also altered. Prior to its amendment, Section
  7.1.1 provided that the Company/one partner in the consortium
  (in case of consortium) should have an active ISO 9001 :2000
  certification at the time of submission of the bid, and it was also
  provided that a copy of the Quality Certificate or documentation
F of the quality policy were required to be provided along with
  the bid document. It was also submitted that in case the
  certificate was issued for renewal, the bidder should ensure that
  the renewed certificate was made available at thEl time of
  signing of the contract. It was mentioned that in case the same
G was not provided, the Department may consider initiating the
  Award of the contract with the second lowest bidder. The
  criteria relating to the documents to be submitted as qualifying
  documents included a copy of the quality certificate/
  documentation of quality policy. The corrigendum dated 18th
  January, 2010, amended the said provision to indicate that the
H
GLOOYNE TECHNOSERVE LTD. v. STATE OF M.P. & 935
          ORS. [ALTAMAS KABIR, J.]
bidder/one partner in the consortium must possess a valid              A
certification in the Capability Maturity Model (CMM level 3 or
above), in case of consortium the partner developing the
software application was required to have CMM level 3
certification. It was further stated that the bidder/lead partners
of the consortium (in case of consortium) should have an active        B
(valid at least till June, 2010) ISO 9001 :2000 certification at the
time of the submission of the bid. The documents to be
submitted along with the bid remained unchanged.
      6. The question for decision in this case is whether, on
account of the corrigendum whereby the provisions of Section c
3 of the Tender documents and Section 7 of the Bidder's Check
List were amended, the appellant was, disqualified from
consideration, in view of the fact that along with the Tender
documents it had filed, through inadvertence or otherwise, a
copy of the ISO 9001 :2000 certificate of the previous year,
instead of the current year, although, it did have the said valid D
ISO 9001 :2000 certificate at the time of making of the bid.
     7. The case of the Appellant depends almost entirely on
the submission that on the date of submission of the Bid, it had
a valid and active ISO 9001 :2000 certification, but that through      E
inadvertence the expired certification of the previous year had
been filed along with the bid papers.
      8. Mr. Harish N. Salve, learned Senior Advocate, appearing
for the Appellant Company, submitted that even if no ISO
9001 :2000 certification was filed along with the bid documents, F
it would have made no difference and the submission of the
bid would have been fully valid in view of Section 7.1.1, which
consists' of the Bidder's Check List and indicates what were
the requirements for a valid bid and what supporting documents
were to be submitted along with the bid papers. Referring to G
Clause 9 of the aforesaid Section, which deals with Quality
Certification, Mr. Salve pointed out that the requirement of the
said Clause was that the Company/one of the partners of the
consortium (in case of consortium) should have an active ISO
9001 :2000 certification at the time of submission of the Bid.
Mr. Salve submitted that the said condition was duly satisfied H
  . 936 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.


A 'by the Ai;pellant who had such a valid and active ISO
   9001 :2000 certification when the bid documents were filed.
          9. Mr. Salve submitted that, although, one of the conditions
   of the Tender document required that the Quality Certification
   and the documentation of the quality policy were to be provided
B along with the bid documents as supporting documents, Clause
    9 also provided that in case the certificate was due for renewal,
    the bidder should ensure that the renewal certificate was made
    available at the time of signing of the contract. In case the same
    was not provided, the department could consider negotiating
c the award of contract with the second lowest bidder. Mr. Salve
    submitted that it would be clear from the said condition that it
    was not absolutely necessary for the valid ISO 9001:2000
  · certification to be filed along with the bid documents and that
    they could be filed before the agreement was ultimately signed.
     Mr. Salve once again reiterated that despite having such a valid
0
     certificate, through inadvertence the previous year's certificate
     had been enclosed with the bid documents. It was urged by
     learned Counsel that this is not a case of a tenderer not having
     a valid certification, as required, but a case of not filing it with
     the bid documents, despite having the same. Mr. Salve urged
E that in view of Clause 9 of Section 7.1.1, the Appellant's bid
     documents had been wrongly rejected at the Technical Bid
     stage, without even considering the Financial Bid which had
     been submitted by it.
       10. Iii addition to the above, Mr. Salve submitted that after
F the Financial Bids, except that of the Appellant. were opened,
  the Appellant came to learn that its offer was about Rs. 200
  crores less than the second-lowest tenderer to whom the
  contract was ultimately given and that by awarding the contract
  to the second. lowest tenderer, the State of Madhya Pradesh
G was incurring a loss of such a huge amount.
       11. Mr. Salve urged that the aforesaid position would be.
  further strengthened from Section 3 of the Request for Proposal.
  which contained the pre-qualification (eligibility) criteria relating
  to technical, operational, functional and other requirell")~nts. Mr.
H Salve submitted that Clause 3 of Section 3.1 provides that the
 GLODYNE TECHNOSERVE LTD. v. STATE OF M.P. 937
         & ORS. [ALTAMAS KABIR, J.]

bidder/one partner in the consortium must possess a valid             A
certification in the Capability Maturity Model, which condition
had been duly satisfied, and that all the partners of the
consortium (in case of consortium) should have an active (valid
at least till June, 2010) ISO 9001 :2000 certification, at the time
of submission of the bid. Mr. Salve submitted that all those          B
documents to be submitted as qualifying documents, included
the Quality Certificate and ISO 9001 :2000 certificate, and if the
said condition is read with the conditions contained in Clause
9 of Section 7.1.1 of the RFP, it would be seen that the
requirement of a valid ISO 9001 :2000 certification on the date       C
of submission of the Bid documents was duly satisfied in the
Appellant's case.
      12. Mr. Salve also referred to the correspondence between
Shri Naveen Prakash, the represeotative of the Wipro
Consulting Services, which had been appointi!d a consultant
                                                                   0
for the selection of suitable candidates, and Shri Sandeep R.
Chalke, who was the Chief Executive of QAL International
Certification (India), which was the repository of information
relating to such certificates. Mr. Salve pointed out that Shri
Naveen Prakash had sent an E-mail to Shri Sandeep R.
Chalke, requesting information as to whether Glodyne E
Technoserve Ltd., the Appellant herein, had a valid ISO
9001 :2000 certificate al the relevant point of time. It was
pointed out that in reply, Shri Chalke informed Shri Naveen
Prakash on 1oth April, 2010, that the certificate of the AppPllant
as on the current date was active and valid till 18th November, F
2010, and would continue to be valid there<After if the
reassessment was conducted on or before 18th NovembP.r,
2010. Mr. Salve submitted that Shri Naveen Prakash, as the
representative of the consultan{ was present at every meeting
of the Committee which had been set up to oversee the Tender G
process and on the date when the APl:>ellant's bid was rejected
on account of non-compliance with Clause 9 of Section 7.1.1
of the RFP, he had knowledge of the fact !hat the Appellant had
a valid and active ISO 9001 :2000 certification which would
expire only on 18th November, 2009, unless continued after H 1
reassessment.

                       i
    938   SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.


A      13. Mr. Salve referred to the affidavit affirmed by Shri Ajit
  Kesari, the Commissioner-cum-Director, Food, Civil Supplies
  and Consumer Protection, Government of Madhya Pradesh,
  Bhopal, on 8th July, 2010, which clearly indicated that the
  Respondents concerned had due notice of the fact that the
B Appellant held an active ISO 9001 :2000 certificate which was
  valid till 18th November, 2009. Mr. Salve submitted that the
  information received by Shri Naveen Prakash from Shri
  Sandeep R. Chalke was forwarded to Shri Ajit Kesari by E-
  mail on 4th December, 2010, although, in the affidavit affirmed
  by Shri Kesari it was sought to be stated that the same had
C not been sent to the official E-mail address of the Director,
  Food, Government of Madhya Pradesh, nor to each Committee
  Member and was sent to his personal E-mail address for
  information only. Mr. Salve urged that whether it was sent to the
  Director's official E-mail address or his personal E-mail
D address, the fact remains that Shri Ajit Kesari had knowledge
  that the Appellant was in possession of a valid and active ISO
  9001 :2000 certificate at the time of submission of the Bid
  documents.
       14. Mr. Salve also referred to the reply of Wipro Ltd. to the
E writ petition filed by the Appellant and pointed out that the
  manner and circumstances in which Shri Naveen Prakash had
  obtained the information that the Appellant Company held a
  valid ISO 9001 :2000 certificate had been spett out in Paragraph
  5 of the said reply, which duly corroborated the fact that the
F same information had been passed on to Shri Kesari.
        15. In support of his aforesaid submissions, Mr. Salve firstly
  referred to the decision of a Three- Judge Bench of this Court
  in Tata Cellular Vs. Union of India ((1994) 6 SCC 651], which
  laid down certain tests in regard to the right of the Courts to
G intervene in a Tender process. This Court, inter alia, held that
  while the Court does not normally interfere with the
  Government's freedom of contract, invitation of Tender and
  refusal of any Tender which pertain to policy matters, when such
  a decision or action is vitiated by arbitrariness, unfairness,
H illegality or irrationality, then such decision can be looked into
 GLODYNE TECHNOSERVE LTD. v. STATE OF M.P. & 939
           ORS. [ALTAMAS KABIR, J.]
 by the Court since the test was as to whether the wrong was of       A
 such a nature as to require intervention. ln{his regard, the Court
 laid down the areas of scope of judicial review in paragraph
 69 of the judgment. For the sake of convenience, paragraph
 69 of the said judgment is extracted hereinbelow :
      "69. A tender is an offer. It is something which invites and B
      is communicated to notify acceptance. Broadly stated, the .
      following are the requisites of a valid tender :
       1.    It must be unconditional.
       2.    Must be made at the proper place.                        c
       3.    Must conform to the terms of obligation.
       4.    Must be made at the proper time.
       5.   Must be made in the proper form.
      6.    The person by whom the tender is made must be
            able and willing to perform his obligations.  ·D
      7.    There must be reasonable opportunity for
            inspection.
      8.    Tender must be made to the proper person.
      9.    It must be of full amount."                               E
     16. Mr. Salve urged that the Bid documents submitted by
the Appellant fully satisfy the aforesaid tests and the rejection
of the Appellant's bid was unlawful and cannot i>e sustained.
      17. In this regard Mr. Salve also referred to the decision F
of this Court in New Horizons Limited & Anr. Vs. Union of
India & Ors. [(1995) 1 SCC 478], which set out the
circumstances in which the Court could lift the veil to ascertain
the true nature of a decision which had been taken in order to
satisfy itself that the same was not unjust and was not opposed
to the interest of revenue.                                       G
     Reference was also made to the decision of this Court in
Reliance Energy Ltd. & Anr. Vs. Ma.harashtra State Road
Development Corpn. Ltd. & Ors. [(2007) 8 SCC 1], which was
essentially a decision in regard to the right of every participant H
    940 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A to a level playing field in respect of Government contracts and
  the extent of judicial review by the Court under Articles 32, 226
  and 136 of the Constitution, in cases of illegality, irrationality,
  procedural impropriety and Wednesbury unreasonableness.
       18. Mr. Salve urged that the rejection of the Appellant's
B Technical Bid for the reasons mentioned above, was not
  supported by the terms and conditions of the RFP and even
  the amendments effect to the Bidder's Response Form
  containing Clause 7.1.1 that was changed by the Corrigendum
  issued on 18th January, 2010, did not alter the position. He
c urged that the judgment of the Division Bench of the High Court,
  impugned in this Appeal, was liable to be quashed.
          19. Appearing for the State of Madhya Pradesh, the
    learned Attorney General submitted that primarily four issues
    fall for the determination in the present case, namely,
D         (i)     What is the relevance of Section 7 of the Request
                  For Proposal as far as this Court case is
                  concerned?
          (ii)    Does this case involve a mere mistake and is such
                  a mistake fatal as far as the Appellant's bid
E                 documents are concerned?
          (iii)   What is the significance of Shri Navin Prakash's
                  attempts to obtain clarification about the Appellant
                  having a valid ISO 9001 Certificate on the date of
                  submission of bid documents? and
F
          (iv)    Even assuming that the Appellant possessed a
                  valid ISO 9001 Certification, was the same
                  produced before the Respondents?
        Referring to Clause 3.1 of the RFP relating to Pre-
G qualification (Eligibility Criteria), the learned Attorney General
  submitted that both the CMM Certificate and the ISO
  9001 :2000 Certificate were listed as documents to be
  submitted as qualifying documents and that the criteria set out
  in the said form would have to be read accordingly. In any event,
  the Bidder's Check List was completely changed by the
H
 GLODYNE TECHNOSERVE LTD. v. STATE OF M.P. &941
           ORS. [ALTAMAS KABIR, J.)
 Corrigendum which was subsequently issued.                       A
      20. The learned Attorney General submitted that the
provisions of the RFP which had been initially. provided were
subsequently altered which had the effect of replacing the
provisions relating to Pre- qualification (Criteria Eligibility)
contained in Section 3 of the Request For Proposal and B
Section 7.1 containing the proforma of the Bidder's Response,
Form. The learned Attorney General submitted that the
Appellant could not, therefore, rely any longer on the terms and
conditions indicated in the un-amended RFP since the
provisions o.f Sections 3 and 7 stood substituted by the c
subsequent Corrigendum. In this regard, the learned Attorney
General referred to the unamended provisions of Section 7.1
comprising the Bidder's Response Form wherein in paragraph
9, it has been indicated as follows :-
      "9. Qualify Certification - The Company/one of the D
    partners of Consortium (in case of Consortium) should
    have an active ISO 9001 :2000 certification at the time of
    submission of the bid. A copy of the Quality Certificate or
    documentation of the Quality Policy needs to be provided
    along with the bid document. In case the certificate is due E
    for renewal, the bidder should ensure that the renewed
    certificate is made available at the time of signing of
    contract. In case the same is not provided, the Department
    may consider negotiating the award of contract with the L2
    bidder."
                                                                 F
     The aforesaid paragraph indicates that a copy of the Quality
Certificate/document of quality policy would have to be
submitted along with the bid documents, with the relaxation that
in case the quality certificate was due for renewal, the bidder
should ensure that the renewed certificate was made available G
at the time of signing of the contract. The learned Attorney
General submitted that although a good deal of reliance had
been placed by Mr. Salve on the said provisions, the same was
altered by the first corrigendum, which in paragraph 8 of the
Bidder Information Sheet indicates as follows :-
                                                                  H
    942     SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A         "8. Bidder should have active ISO 9001 :2000 Certification
          at the time of submission of Bids. Copies of the certificates··
          or briefs on Quality policy & System being followed to be
          provided.
          In case the certificate is due for renewal, the bidder should
B         ensure that the renewed certificate is made available at
          the time of signing the contract. In case the same is not
          provided, the Department may consider negotiating the
          award of contract with the L2 Bidder."
       21. The learned Attorney General then contended that
C even the said provision was replaced by a fresh corrigendum,
  wherein in paragraph 3 of the provision relating to "Turnover"
  it was differently provided as follows:-
          "3. The Bidder/one partner in the consortium must possess
          a valid Certification in the Capability Maturity Model (CMM
D         Level 3 or above). In case of consortium, the partner
          developing the Software Application should have CMM
          Level 3 Certification. The Bidder/Lead Partners of
          consortium (in case of Consortium) should have an active
          (valid at least till June 2010) ISO 9001 :2000 certification
E         at the time of submission of the bid."
         22. The learned Attorney General urged that once the
    provisions relating to the Bidder's Response Form contained
    in Section 7.1 stood substituted by the Corrigendum and the
    provision relating to Quality Certification stood altered omitting
F   the relaxation given regarding filing of documents with the
    tender papers, it was no longer open to the Appellants to rely
    on the unamended Form.
        23. The learned Attorney General also submitted that Shri
  Navin Prakash had collected the information regarding the ISO
G 9001 Certification of the Appellant Company on his private
  initiative and not under the i.nstructions of the Tender Advisory
  Coll)mittee. Furthermore, the said information was not divulged
  by him at the meeting which was held at 2.15 p.m. on the same
  day when the said information was received. Referring to the
H Disqualification Clause contained in paragraph 4.11.6 in the
GLODYNE TECHNOSERVE LTD. v. STATE OF M.P. & 943
          ORS. [ALTAMAS KABIR, J.]

Request For Proposal, the learned Attorney General pointed A
out that the proposal of the bidder was liable to be disqualified
if, inter alia, the bid received from him was in incomplete form
or not accompanied by the bid security amount or by all
requisite documents. He also referred to paragraph 5.2 under
Section 5 which deals with proposal evaluation and lays special B
emphasis on the provisions under technical evaluation which
set out that the said bid would be rejected if it did not meet the
pre-qualification criteria. The learned Attorney General
submitted that there was no provision at the time of technical
evaluation for relaxation of the pre-qualification criteria.
                                                                      c
      24. In support of his aforesaid submission, the learned
Attorney General firstly referred to the decision of a Three-
 Judge bench of this Court in Siemens Public Communication
 Network Pvt. Ltd. vs. Union of India & Ors. [(2Q08) 16 SCC
215], wherein while considering the decision making process
                                                                       0
of the Government or its instrumentality in awarding contracts,
it was held that such process should exclude the remotest
possibility of discrimination, arbitrariness and favouritism and
the same should be transparent, fair, bona fide and in public
interest. It was also held that it is not possible to re-write entries
in bid documents and read into the bid documents terms that E
did not exist therein.
      25. Reference was also made to another decision of this
Court in Ram Gajadhar Nishad vs. State of U.P. [(1990) 2
SCC 486], wherein it was held that the effect of non-compliance F
of a mandatory condition in a Tender notice was fatal and the
fact that the Appellant's Tender was not opened, accordingly,
did not call for interference under Article 136 of the Constitution.
     26. The learned Attorney General lastly referred to the
decision in Sorath Builders vs. Shreejikrupa Buildcon Ltd. & G
Anr. [(2009) 11 SCC 9], where similar views had been
expressed in relation to the acceptance of the lowest bid by
the Respondent No.2 University, despite the fact that such
bidder had failed to furnish pre-qualification documents within
the specified time. This Court held that the judgment of the High
Court setting aside the decision of the University was improper H
    944   SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.


A as the said tenderer was itself to blame as it was late in
  submitting the required documents by three days and the
  Respondent No.2 University was justified in not opening the
  tender submitted by it. This Court observed that the lowest
  tenderer could not make any grievance as the lapse was due
8 to his own fault. This Court noticed that of the three bidders who
  had responded to the tender notice, one stood disqualified at
  the threshold and the lowest tenderer stood disqualified for
  having filed the requisite documents three days late. In effect,
  the Appellant in the said case ultimately turned out to be sole
C bidder and his bid was accepted, being the lowest among all
  the eligible bids.
         27. Referring to the decision in the Tata Cellular case
    (supra), cited on behalf of the Appellant Company, the learned
    Attorney General pointed out that the said case was not a case
    of omission, but of breach of the mandatory condition of filing
0   certain documents which were required to be filed.
         28. The learned Attorney General submitted that the order
    of the High Court impugned in the present appeal did not suffer
    from any infirmity which required any interference by this Court.
E     29. The submissions made by the learned Attorney
  General were reiterated by Mr. Paras Kuhad, appearing for the
  Respondent No.4, HCL Construction Ltd, which was impleaded
  as a Respondent by this Court on 3rd August, 2010. Mr. Kuhad
  submitted that having regard to the fact that a Corrigendum had
F been issued by which the provisions of paragraphs 3.1 and 7.1
  had been completely substituted, it was no longer open to the
  Appellant to µlace reliance on the same since the said
  provisions no longer existed. Mr. Kuhad contended that the
  submissions made on behalf of the Appellant Company with
  regard to the conditions in the Bidder's Response Form and
G the Bidder's Check List, as it stood prior to the Corrigendum
  having been issued, was devoid of substance and the same
  had been made only to be. rejected.
       30. Mr. Kuhad pointed out that once the work had been
H entrusted to the Respondent No.4, it had taken various steps
  GLODYNE TECHNOSERVE LTD. v. STATE OF M.P. & 945
            ORS. [ALTAMAS KABIR, J.]
  in establishing the District Mechanism for Public Distribution A
  System in Madhya Pradesh. It was urged that in that regard
  steps 'had been taken for Data Digitization Application
  Development, Preparation of Pre-Enrolment Data, Training and
  Certification of Operators, Establishment of Enrolment Camps,
  Biometric Enrolment of Beneficiaries, Data Transfer to UID, B
 Generation of Aadhaar/UID Number and Mapping of EID
 number to UID number. Mr. Kuhad urged that the steps which
 were yet to be completed. related to the loading of the data to
 the server and for preparation of the Ration Cards and for
 issuance of the same and also Food Coupons printing and
 distribution and retrieval thereof. It was submitted that at this C
 advanced stage, it would be highly inequitable if the public
 distribution supply project in Madhya Pradesh was interfered
 ~~.                                                     '


       31. Replying to the submissions made on behalf of the D
 Respondents, Mr. Shyam Divan, learned Senior Advocate,
 urged that the Corrigendum which was issu-ed by the
 Respondents was not a replacement, as had been c9ntended
 both by the learned Attorney General as well as Mr. Kuhad, but
 an addition to what was already in existence. Mr. Shyam Divan
 reiterated the submissions made by Mr. Salve that the clause E
 relating to filing of certificate of registration even at the stage
 of signing of the agreement was valid and capable of being
acted upon. Mr. Divan contended that the only change which
was effected by the Corrigendum in regard to the Bidder's
response clearly indicated that the Corrigendum related only F
to the introduction of Lead Partners in case of Consortium and
that in case of a Consortium, the partner developing the
software application should have CMM Level 3 Certification. It
was submitted that in any event, in the absence of clarity, the
benefit should go to the Appellant and its bid ought not to have G
been rejected at the Technical bid stage.
     32. Having considered the submissions made on behalf
of the respective parties, we are inclined to accept the
submissions made by the Attorney General that the.Jntroduction
of the Corrigendum completely changed the provision in the H
    946    SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A Bidder's Response Form relating to submission of the Quality
   Certificate in the form of an active ISO 9001 :2000 certification.
 · In any event, the appellant's contention based on claus·e 9 of
   Section 7.1.1 of the RFP as ii stood prior to corrigendum is
   misconceived. The said clause 9 specifically provided:
B         ".....A copy of the Quality certificate or documentation of
          the Quality policy needs to be provided along with the bid
          document. In case the certificate is due for renewal, the
          bidder should ensure that the renewed certificate is made
          available at the lime of signing of contract. In case the
c         same is not provided, the Department may consider
          negotiating the award of contract with the L2 bidder."
  The above provision obliges a tenderer to produce along with
  the bid document a copy of the Quality certificate which is valid
  and active on the date of submission of the bid and it does not
D enable a bidder to withhold the copy of such Quality Certificate.
  Where the Quality certificate will be expiring shortly and is due
  for renewal, the bidder is also obliged to produce the renewed
  certificate at the lime of signing of the contract. The appellant
  claimed to have a valid and active ISO 9001 :2000 certificate
E at the time of submission of the bid, but did not produce a copy
   of the said certificate along with the bid document.
         33. The submissions made on behalf of the Appellant
   proceeds on the basis that it was entitled, almost as a matter
   of right, not to submit the documents required to be submitted
 F along with the bid documents on the supposition that, even if
   such documents were valid and active, they could be submitted
   at the time of signing of the Memorandum of Understanding.
   The Appellant had a valid and active ISO 9001 :2000
   certification which it did not submit along with the Bid
   documents, may be due IQ inadvertence, but whether such
 G explanation was to be accepted or not lay within the
   discretionary powers of the authority inviting the bids. ·The
   decision taken to reject the Technical Bid of the Appellant
   cannot be said to be perverse or arbitrary. We need not refer
   to the decisions.cited by the learned Attorney General or the
 H
GLODYNE TECHNOSERVE LTD. v. STATE OF M.P. & 947
          ORS. [ALTAMAS KABIR, J.]
Appellant in this regard, as the principies enunciated therein     A
are well-established.
      34. Even the question as to whether Shri Naveen Prakash
 of the consultant agency had obtained information that the
 Appellant had a valid and active ISO 9001 :2000 certification
 and had passed on such information to Shri Kesari, does not       B
 make any difference, since the same was never asked for or
.placed before the Tender Advisory Committee constituted for
 the purpose of scrutinizing the Bids despite the presence of
 Shri Naveen Prakash at the meeting of the Advisory Committee
 at 2.15 p.m. on the same day.                                     c
    35. We are not, therefore, inclined to entertain the appeal,
which is dismissed, but without any order as to costs.
N.J.                                        Appeal dismissed.