M/s.Madras Security Printers v. State of Tamil Nadu

For petitioner in W.P.No.3508/2008 : Mr.S.Parthasarathy, Senior Counsel, for M/s.V.C.Janardhanan.For respondents both W.Ps.:Mr.P.S.Raman, Additional Advocate General, assisted by Mr.V.Arun, Additional Government Pleader.COMMON ORDERThese two Writ Petitions have been filed, one byM/s.Madras Security Printers and the other by M/s.RosemertaTechnologies Pvt.Ltd., praying for a mandamus, directing therespondents to accept the petitioners' bids for issuance of SmartCard based Driving Licence and Vehicle Registration at RegionalTransport Offices of Chennai (South), Cuddalore and Sivagangai on'Build, Own, Operate and Transfer (BOOT) basis and process andconsider the petitioners' bids on merit and in accordance with thetender terms along with other bidders.2. According to the petitioners, they are the leadingconcerns, engaged in the business of security printing and smartcard manufacturing, e-governance, system integration and softwaresolution and they have vast experience in smart card manufacturingand participated in several tenders, issued by the State and theCentral Government and become successful bidders. 3. M/s.Madras Security Printers claim that they arepioneers in India and were key participants in the Multi PurposeNational Identity Card (Pilot Project) of the Government of India.They are eligible bidders for issuance of smart card based drivinglicence and vehicle registration at Regional Transport Offices ofChennai (South), Cuddalore and Sivagangai on BOOT basis. Thebidding was stated to be conducted through open tender system intwo cover system and was expressly required to conform to the TamilNadu Transparency in Tenders Act,1998, (in short, 'the Act') andthe Tamil Nadu Transparency in Tender Rules,2000, (in short, theRules). It is their further case that they purchased the biddocuments and considering the terms and instructions containedtherein decided to submit the bids as a consortium, as permitted. 4. According to both the petitioners, as per the noticeinviting tender, in Schedule-I, it is provided that the address forobtaining and submission of the bid documents would be that of the https://hcservices.ecourts.gov.in/hcservices/ Deputy Transport Commissioner-I, Ezhilagam, Chepauk, Chennai-600005, who is the third respondent in these petitions, whose officeis situated in first floor of Ezhilagam Building, where the officeof second respondent is also situated. The last date and time forsubmission of the bids were set out in the tender documents as30.01.2008. It is a two cover bid system and it is only atechnical bid that was required to be opened first for evaluationand only such of those who are technically qualified afterexamination of the particulars provided in the bid could proceed tothe next stage of the financial bid opening before award of thetender.5. With regard to Madras Security Printers, it is theircase that after duly completing the requirements of the biddocuments, they deputed their representative Mr.Velu to the officeof the third respondent to submit the bid. The said representativereached the premises of the third respondent well within time andat the time of signing of the Entry Register, it was 02.55 p.m.However, since the persons at the reception desk stated that thetime was 03.00 p.m., the same was entered as 03.00 p.m. The saidEntry Register would reveal that the representative of thepetitioner had already gone to the third respondent premises withintime. Thereafter, when he proceeded to the first floor to submitthe bid to the Deputy Transport Commissioner-I, he was not presentand finding that nobody was available there, the representativeimmediately came back to the reception in the ground floor andsought to find out where the bid could be submitted. It was only atthat time the representative was informed that the venue forsubmission of the bids was shifted to fifth floor of the samebuilding and on reaching the fifth floor, it was evident that theofficials of first and second respondent were present there andthen, he submitted the bid to the first respondent. However, tohis shock, the petitioner's bid was refused to be accepted on thefrivolous ground that there was a few minutes delay in submissionof the bid and the cut off time would be strictly construed as03.00 p.m. The representative immediately brought to the attentionof the respondents that it was only because of the shifting of thevenue without any notification or intimation the delay had occurredand that no prejudice would be caused to anybody if the bid wereaccepted. Thereafter, the petitioner met the officials who alsorefused to accept the petitioner's bid.6. In the case of M/s.Rosemetra Technologies, it is theircase that after completing the bid documents as required, theydeputed their Manager, Sales, Mr.S.Ganesh to the office of third https://hcservices.ecourts.gov.in/hcservices/ respondent. The said representative reached the premises of thethird respondent in time. He proceeded to the first floor tosubmit the bid, but the Deputy Transport Commissioner-I, was notpresent there and finding that nobody was available, therepresentative came to the reception in the ground floor and soughtto find out where the bid could be submitted. It was only at thattime, the petitioner's representative came to know that the venuefor submission of the bids has been shifted to fifth floor, whichis the Conference Room of the Planning Commission in the samebuilding. He immediately climbed up to the fifth floor and onreaching the said floor, it was evident that the third respondentand other officials of the second respondent were present.Thereafter, the representative submitted the bid to the firstrespondent. However, to his shock, the petitioner's bid wasrefused to be accepted, on the ground that there was a few minutesdelay in the submission of bid and the cut off time would bestrictly construed as 03.00 p.m. Then, the representative broughtto the notice of the respondents that it was only because of theshifting of the venue without any notification or intimation, thedelay had occurred and that no prejudice would be caused to anybodyby acceptance of the bid, as the petitioner was duly andtechnically qualified. Subsequently, the petitioner met theofficials, who also refused to accept the petitioner's bid. Hence,the petitioner was constrained to record its protest, by a letterdated 30.01.2008 through e-mail.7. Therefore, both the petitioners have filed these WritPetitions, having been aggrieved over the action of the secondrespondent in not accepting the submission of the bids, on theground that the submission of the bids was delayed by a fewminutes, which, according to the petitioners, has actually beencaused by the action of the respondents, by changing the venuewithout intimation and contrary to the express provisions of theAct and the Rules.8. Respondents have filed separate counters in both thepetitions. In the case of Madras Security Printers, a counter hasbeen filed by the second respondent, denying all the allegationsmade in the Writ Petition, except those which are specificallyadmitted.9. According to the second respondent, the Notification,inviting tender for issuance of Smart Cart based Driving Licencesand Registration Certificates of vehicles at Regional TransportOffice, Chennai (South), Cuddalore and Sivagangai on BOOT basis,has been issued on 24.12.2007 in dailies as per the Government https://hcservices.ecourts.gov.in/hcservices/ orders in G.O.Ms.No.1419, Home (Tr.VII) Department, dated10.12.2007, and it has also been hosted on the websitehttp://www.tn.gov.in\sta. It is further stated in the affidavitthat the dates for sale of documents were fixed as from 27.12.2007to 29.01.2008. A Pre-bid meeting was held on 07.01.2008 at 11.00a.m. in the Conference Hall, 5th Floor, Ezhilagam Building, Chennai-5. The replies to all the queries raised by various participantsby way of addendum was also prepared and sent to all theparticipants by post, e-mail and also hosted on the website. Apress note about the availability of addendum and replies to thequeries was also notified in the dailies. The last date forreceipt of sealed tender documents was fixed up to 03.00 p.m. on30.01.2008 and accordingly the tender documents were received up to03.00 p.m. on the appointed day i.e., on 30.01.2008. The TenderOpening Committee appointed for this purpose opened the Tender Boxon the same day at 03.30. p.m., as specified in the TenderNotification. Then, the respondents opened the Tender Box at 03.30p.m., wherein there were six tender applications found, and took upthe processing.10. According to the respondents, the petitioners havestated that they reached the office at 02.55 p.m. and entered at03.00 p.m. in the common reception register maintained at the mainentrance of the building at Ground Floor. There are so many headoffices functioning in the said building, where a common receptionregister is maintained for the movement of the public/visitors.The petitioner himself has admitted that he was present at theentrance of the building at 03.00 p.m. and by that time thesubmission of sealed tenders which was fixed at the V Floor hadalready ended. The department had displayed a board at thereception hall at the main entrance nearer to the receptioncounter, clearly indicating the place and the floor as "TransportDepartment, Submission of Tender Document for issuance of SmartCard Based D.L. and R.C. at Conference Hall, V Floor", where thetender documents could be submitted. This was displayed at theReception Hall by 10.00 a.m. itself. The petitioner did notmention about any time of arrival at the V Floor.11. It is also stated in the counter that exactly at 03.00p.m., it was informed loudly to all the participants who havesubmitted the bid documents in front of the members of TenderOpening Committee that the tender submission time was over and thetenders acceptance had to be closed. Hence, immediately after theexpiry of the appointed time, in the presence of all members ofTender Opening Committee and all other bidders, the Tender Box wasclosed. It was only after closing the tender box, the petitioner https://hcservices.ecourts.gov.in/hcservices/ entered the hall for submission of their tenders. Hence, theirsubmission was refused. Since the petitioners came to the hallafter the time stipulated in the tender document, their tendersubmission could not be accepted. At 03.30 p.m., as alreadynotified, the tender box was opened and totally six applicants hadsubmitted the documents. The Tender Opening Committee constitutedin Transport Commissioner's proceedings No.11989/S4/2007 consistedof the Deputy Transport Commissioner-I, Assistant Director ofStatistics and Assistant Secretary-II. The applicants who havesubmitted their applications before 03.00 p.m. have not complainedabout the place of receipt of tender applications and no one elsefound any difficulty to submit their tender applications withintime at the place of venue and also there was no controversy aboutthe place of submitting and time in between the tender applicantsand authorities. Since the question raised by the petitioners ispurely factual in nature, they cannot invoke the writ jurisdictionto go into the factual aspects.12. While denying the averments in para 9 of theaffidavit, the respondent has stated that as per Rule 17 of theRules, the tender inviting authority may make changes,modifications or amendments to the tender documents. Indeed, theother tenderers raised an objection when the petitioner, namely,Madras Security Printers sought to submit the tender. Therefore,the respondent was under a legal objection to stick to the tenderconditions and reject the tender. Any modification or amendment totender conditions cannot be made by the respondent withoutfollowing the due procedure of intimation to all parties. 13. Further denying para 10 of the affidavit, therespondent has stated that the tender inviting authority hadproperly ensured and fixed the place well in advance, however, thesaid six applicants, who submitted their tender applicationproperly approached and submitted their applications in timewithout any ambiguity. There was a proper display board by thetender inviting authority to inform the tender applicants thatthose who want to submit their applications may approach the VFloor in the same premises. The belated reaching of the petitionerin submitting the tender application was the only reason for notaccepting the application and not for any fault on the respondent'sside. The petitioner is solely responsible for belated submissionof the application on or before 03.00 p.m. at the specified placeand time. The tender inviting authority had properly ensured allthe measures under Section 18 (2) of the Act. https://hcservices.ecourts.gov.in/hcservices/

14. It is also stated while denying para 11 of theaffidavit that Rule 18 (5) of the Act also cannot be invoked by theauthority because there was no necessity for extending or changingtime of submission, as the other applicants submitted theirapplications in time. The respondents properly applied the rulesand provisions of the said Act and followed the procedure and,accordingly, they opened the tender documents and proceeded furtherand also there was no written representation by the petitioner onthe date of submission of documents.15. In the counter filed by the respondents in respect ofM/s.Rosemerta Technologies Pvt.Ltd., almost similar averments madein the case of M/s.Madras Security Printers have been adopted. Inaddition, it is stated that the petitioner reached the office atabout 03.20 p.m., when the tender box was about to be opened innext ten minutes. Further, the applicants, who were present at theplace of the tender submission strongly opposed the authorities forreceiving any belated submission i.e., after 03.00 p.m. and hencethe petitioner's bid was refused to be accepted. Since neithertime nor venue was not changed by the tender inviting authority,the belated submission of application was not accepted. Further,the tender inviting authority for the convenience of the applicantswho wanted to submit the tender applications, displayed a noticeboard informing the venue of receiving place of tender applicationand therefore the allegations of the petitioner are totally falseand to protect the delay caused by himself, the petitioner hasraised that the place of venue was changed. In fact, there was nochange in the place of receipt of tender applications. Therefore,the belated submission of tender application cannot be accepted,which is against the provisions of the Act and the Rules. 16. It is also submitted that the tender invitingauthority had properly ensured and fixed the place well in advancefor receipt of tender applications, however, the six applicants,who submitted their tender applications, properly approached andsubmitted their applications in time without any ambiguity.Further, the tender inviting authority properly displayed the boardto inform the applicants that those who wanted to submit theirtender applications might approach the 5th Floor in the samepremises. The belated reaching of the petitioner for submitting thetender application was the only reason for not accepting the tenderapplication and not for any fault on the respondents' side.Therefore, the tender inviting authority has properly ensured allthe measures under Rule 18 (2) of the Rules and Rule 18 (5) alsocould not be invoked by the authorities, as there was no necessityfor extending or changing the time of submission. https://hcservices.ecourts.gov.in/hcservices/

17. Heard Mr.R.Krishnamurthy, learned Senior Counsel forMr.Sathish Parasaran and Mr.S.Parthasarathy, learned Senior Counselfor Mr.V.C.Janardhanan, appearing for the petitioners andMr.P.S.Raman, learned Additional Advocate General, assisted byMr.V.Arun, Additional Government Pleader.18. Mr.R.Krishnamurthy, learned Senior Counsel for thepetitioner, has strenuously contended that the petitioner is aleading concern, having vast experience in the Smart Cardmanufacturing and has participated in several tenders issued by theState and the Central Government and become the successful bidderand that the petitioner is the pioneer in the said field in India. 19. Secondly, the learned Senior Counsel has argued thatmain object of the Act is to eliminate the irregularities,interference and corrupt practices by providing transparency in theprocessing of tenders by ensuring transparency in the procurementprocedure and that under Section 8 of the Act, it is provided thatthe Tender Accepting Authority or any other officer authorised byit, shall open the tenders in the presence of tenderers present andwho have submitted tenders in such time and in such place as may bespecified in the tender document and that as per the terms andconditions of the tender document, the time and place prescribedtherein have to be strictly adhered to.20. Relying upon Rule 17 of the Rules, the learned SeniorCounsel would contend that at any time after the issue of thetender documents and before the opening of the tender, the TenderInviting Authority may make any changes, modifications oramendments to the tender documents, but such change should beintimated to all those who have purchased the original tenderdocuments.21. On the other hand, Mr.S.Parthasarathy, learned SeniorCounsel appearing for the other petitioner, while reiterating theabove provision of law an the object of the enactment, hascontended that the petitioner has reached the place of venue intime, but as the venue prescribed in Schedule-I of the tenderdocument is Deputy Transport Commissioner-I, Chepauk, Chennai-5,for obtaining and submitting the bid documents, it cannot bechanged and by changing the venue without any intimation, therespondents have closed the receipt of tenders and also refused toaccept the bid submitted by the petitioner, which is a violation ofthe provisions under Section 8 of the Act.22. Per contra, Mr.P.S.Raman, learned Additional AdvocateGeneral appearing for the respondents, has submitted that there are https://hcservices.ecourts.gov.in/hcservices/ no lapses on the part of the respondents in making the tenderprocess more transparent and there is also no violation of theprovisions of the Act or the Rules. In fact, the respondents havestrictly adhered to the provisions of the Act and the Rules andthey made all arrangements by displaying a notice board in theground floor of the building for submission of the bid documents,not to cause any ambiguity with regard to reaching of the place andsubmitting the documents in time.23. The learned Additional Advocate General furthercontended that the six other applicants reached the place of venuein time without any difficulty and therefore the contention of thepetitioners that because of the change of venue, the petitionersfailed to reach the venue in time is not tenable. He also submittedthat the Office of the Deputy Transport Commissioner-I, Chepauk,Chennai-5, which is in the first floor, was the place for obtainingand submission of the bid documents, but the venue for submissionof the bid documents has been shifted to V Floor, after displayinga board at the reception hall, at the entrance nearer to thereception counter, clearly indicating the place and the floor as"TRANSPORT DEPARTMENT, SUBMISSION OF TENER DOCUMENT FOR ISSUANCE OFSMART CARD BASED D.L. AND R.C. AT CONFERENCE HALL, V FLOOR", wherethe tender documents could be submitted and the said display boardwas kept at the reception hall at 10.00 a.m. itself and hence therewas no failure on the part of the respondents in intimating thechange of venue. 24. I have perused the material documents and given acareful attention to the submissions made by the learned SeniorCounsel on either side and also the relevant provisions of the Actand the Rules.25. Admittedly, there was a Notification, invitingtenders, for issuance of Smart Card based Driving Licences andRegistration Certificates of vehicles at Regional Transport Office,Chennai (South), Cuddalore and Sivagangai on BOOT basis. InSchedule-I of the Notice Inviting Tender, it is clearly mentionedthat Sealed bids are invited from the eligible bidders for issuanceof Smart Card based Driving Licences and Registration Certificatesof vehicles at Regional Transport Office, Chennai (South),Cuddalore and Sivagangai on BOOT basis and that the bidding will beconducted through Open Tender System under two cover systemconforming to the Tamil Nadu Transparency in Tenders Act,1998 andRules,2000. It is also mentioned therein that the name of thebidding department is State Transport Authority, Chepauk, Chennai-5, and the name of the work as, Issuance of Smart Card basedDriving Licences and Registration Certificates of vehicles on BOOT https://hcservices.ecourts.gov.in/hcservices/ basis and the address for obtaining and submission of bid documentas "Deputy Transport Commissioner-I, Chepauk, Chennai-5- (TamilNadu) Tele.-28520682, Telefax – 28412244, E-Mail : sta@tn.nic.in,;Website : www.tn.gov.in/sta". Security amount is shown as Rs.10.5lakhs; Cost of bid document as Rs.5,200/-; Sale of bid documentfrom 27.12.2007 to 29.01.2008 on all working days from 10.00 hoursto 17.45 hours; Date and Time of Pre-bid meeting as 07.01.2008 at11.00 A.M. at the second floor of Ezhilagam building at the Chamberof Transport Commissioner, Chennai-5. Further, it is specificallymentioned that the last date and time of submission of bids as30.01.2008 up to 3.00 P.M. and Opening of Technical Bid as30.01.2008 at 3.30 P.M and the Validity of the Bid as 120 days witha further note that the bid documents can also be downloaded fromthe website and that the respondent reserves the right to rejectany or all bids without assigning any reasons therefor.26. It is seen that the petitioners have obtained thetender documents from the respondent and on specifying therequirements as per the terms and conditions prescribed they had tosubmit the document on or before 30.01.2008 at 03.00 P.M., whichwas the last date for submission of the bids. A perusal of thecounter affidavit would reveal that the acceptance of tender wasdone at 5th Floor on the date and time specified. But, in thiscase, the address for opening and submission of bid document hasbeen specifically provided as Deputy Transport Commissioner-I,Chepauk, Chennai-5, which is located in the first floor of thebuilding. 27. As per Section 8 of the Act, the Tender AcceptingAuthority or any such other officer authorised by it shall open thetenders in the presence of tenderers present and who have submittedtenders in such time and in such place as may be specified in thetender document. It is seen that the place of submission of tenderis Deputy Transport Commissioner's Building, which is located inthe first floor and it is stated that it has been shifted to 5thFloor and a display board was kept at the reception hall at themain entrance nearer to the reception centre, indicating the placeand the floor as "TRANSPORT DEPARTMENT, SUBMISSION OF TENDERDOCUMENT FOR ISSUANCE OF SMART CARD BASED D.L.AND R.C.AT CONFERENCEHALL,V FLOOR", where the tender documents could be submitted. Itis also seen that display was made at the reception hall by 10.00a.m.itself.28. As per Rule 17, at any time after the issue of thetender documents and before the opening of the tender, the TenderInviting Authority may make any changes, modifications oramendments to the tender documents and shall send intimation of https://hcservices.ecourts.gov.in/hcservices/ such change to all those who have purchased the original tenderdocuments. 29. It transpires that due to the change of venue from theoffice of Deputy Transport Commissioner-I, Chepauk, Chennai-5,which is located in the first floor of the building to the officeof the Transport Department, which is located in the fifth floor,the petitioners have experienced much difficulty and inconveniencein reaching the place in time. This is evident from the effortsmade by the petitioners to reach the place in one case by 3.00 p.m.and in the other case beyond 03.00 p.m. If there is any changewith regard to venue, it can be done only by intimation of suchchange to all those who have purchased the original tenderdocuments. Since the petitioners have purchased the tenderdocuments, the change of venue should have been intimated to them.In the absence of such intimation, the action of the respondentappears to be irrational and without following the provisionscontemplated under Rules 17 and 18. 30. Therefore, in my opinion, the shifting of the venue isthe cause for delay in submitting the application that too in onecase before 03.00 P.M. i.e., 02.55 P.M. and in the other casebeyond 03.00 P.M. Hence, the action of the respondents in changingthe venue from first floor to fifth floor is the real cause for thedelay in submitting the application. Had the venue not beenchanged, the petitioner would have reached the venue in time andthere could not be much difficulty in submitting the bids withinthe time prescribed. 31. One more contention raised by the learned SeniorCounsel for the petitioners is that any change in the tenderdocuments has to be intimated, which is not done in this case.Rule 17 is very clear that the tender inviting authority may makeany changes, modifications or amendments to the tender documentsand shall send intimation of such change to all those who havepurchased the original tender documents. 32. In Schedule-I of the Tender Document, it is very clearthat the address for obtaining and submission of bid documents isthe Deputy Transport Commissioner-I, Chepauk, Chennai-5, which islocated in the first floor. When the respondent has specificallygiven the date and time of the pre-bid meeting at the second floorof Ezhilagam building at the Chamber of Transport Commissioner,Chennai, a similar indication of the floor of the Deputy TransportCommissioner-I should have been given in the notification.Therefore, the office of the Deputy Transport https://hcservices.ecourts.gov.in/hcservices/ Commissioner, which is located in the first floor, is theappropriate place for submission of bids, as stated in the tenderschedule. Any change or shift of the venue without any intimationto the purchasers of the original tender documents is contrary tothe provisions of Rule 17. Therefore, the respondents have not madeserious efforts in adhering to the provisions of the Act and theRules. 33. The object of the enactment is to foster and encourageeffective participation by tenderers in the process of tenders; topromote healthy competition among tenderers; to provide for fairand equitable treatment of all tenderers; to eliminateirregularities, interference and corrupt practices in the mattersrelating to tender processes by providing transparency in suchmatters and also to promote the integrity of the process of tendersand to promote fairness and public confidence in the processing oftenders by ensuring transparency in the procedure relating toprocurement. 34. The said object has to be achieved by following thetransparency in the tender process, as contemplated in the Act andthe Rules, which the respondents have not adhered to, while makingsuch changes in the tender document in specifying the place ofsubmission of the bid. Therefore, there was delay in submission oftenders and it was because of the change of venue by therespondents from first floor to fifth floor.35. In my considered opinion, the action of therespondents appears to be not fair and transparent in so far as thepetitioners' case is concerned, which has caused delay insubmission of the bid documents by the petitioners. Therefore, themandamus sought for in these Writ Petitions has to be granted tothe petitioners. Accordingly, I direct the respondents to acceptthe petitioners' bids for issuance of Smart Card based DrivingLicence and Vehicle Registration at Regional Transport Offices ofChennai (South), Cuddalore and Sivagangai on 'Build, Own, Operateand Transfer (BOOT) basis and process and consider the petitioners'bids on merits in accordance with the tender terms along with otherbidders. https://hcservices.ecourts.gov.in/hcservices/

36. Writ Petitions stand allowed. No costs. Consequently,the connected M.P.Nos.1 and 2 of 2008 in each petition are closed.dixitSd/-Asst. Registrar./true copy/Sub Asst. Registrar.To1.The Secretary to Government, State of Tamil Nadu, Transport Department, Secretariat, Fort.St.George, Chennai – 600 009.2.The State Transport Authority, rep.by the Transport Commissioner, Ezhilalagam, Chepauk, Chennai – 600 005.3.The Deputy Transport Commissioner, Ezhilagam, I Floor, Chepauk, Chennai-600 005.1 cc to M/s.Sathish Parasaran, Advocate, SR.90871 cc to M/s.V.C.Janardhanan, Advocate, SR.91151 cc to Government Pleader, SR.9052avm (co)dv/29.2.W.P.Nos.2774 & 3508/2008