[Civil Appeal No. 1049 of 2019 arising out of SLP (C) No. 26811 of 2018]
[Civil Appeal No. 1050 of 2019 arising out of SLP (C) No. 27818 of 2018]
ROHINTON F. NARIMAN, J.
1. Leave granted.
2. A Tender was called by the appellant before us on 06.01.2018 for balance earthwork to be done in a canal. The Tender was ultimately replied to by three persons whose bids, respectively, were – Rs.39.53 crores by Respondent No.1, Rs.39.15 crores by Respondent No.2, and Rs.46.81 crores by Respondent No.3. There is no dispute that the bid of Respondent No. 2 was the lowest bid. At this stage, it is a little important to advert to some of the tender conditions:-
“Contract” is defined by the e-tender in question as follows:-
“1.3.9 CONTRACT :-
It shall mean and include following documents.
Tender document & information/data submitted by contractor Common set of conditions/Minutes of pre- Tender conference.”
Clause 2.15 speaks of “Pre-tender Conference” as follows:-
“1) Pre-tenders conference open to all prospective tenderer will be held in the office as stated in this Section, wherein the prospective tenderer will have an opportunity to obtain clarifications regarding the work and the tender conditions.
2) The prospective tenderers are free to ask for any additional clarification either in writing or orally and the reply to the same will be given by the Chief Engineer/Superintending Engineer in writing and these clarifications referred to as common set of conditions, shall form part of tender documents and which will also be common and applicable to all tenderer.
3) The e-tender submitted by the tenderer shall be based on the clarification, additional facility issued (if any) by the Corporation and this tender shall be unconditional. Conditional tenders will summarily be rejected as non-responsive.
4) All tenderers are cautioned that the tenders containing any deviation from the contractual terms and conditions, specifications or other requirements and 2 conditional Tenders will be rejected as non-responsive.”