STERLITE TECHNOLOGIES LIMITED Vs. BHARAT SANCHAR NIGAM LIMITED

JUDGEMENT

(1.) The narrow controversy that needs to be settled in this writ petition is whether the respondent (hereafter referred to as "BSNL") was justified in invoking Clause 9.2 of Section IV Part B of the tender invited by it on 29.12.2017 (hereafter called "the NIT"). That condition results in the price bid loading of any given bidder "to the extent of the difference in quantity of the item to meet the full requirement of the SOR on a pro-rata basis for the purpose of evaluation and ordering."

(2.) The facts are that BSNL issued the NIT further to its Bharat Net Phase-II Project for the States of Assam, Madhya Pradesh, Rajasthan, Uttar Pradesh, West Bengal and Sikkim. These six states were further divided into six clusters. The bids were for the selection of Project Implementing Agency to carry out survey, supply, installation, end-to-end integration, testing and commissioning of network for connecting Gram Panchayats on turnkey basis. It is not disputed that the petitioner had bid for three clusters - MP-1, MP-3 and MP-4 when it furnished its tender on 15.02.2018. It claims to have been declared as L-I in respect of MP-1 and MP-4 clusters. The latter four clusters were at the stage of price negotiations. Concededly, the present proceedings relate to its bid for MP-1 cluster.

(3.) The petitioner contends that it quoted 100% of the requisite quantities in the NIT. It further relies upon the pre-bid clarifications to the tender issued by the BSNL on 29.01.2018 to state that with respect to the relevant part of the bid, all the prescribed quantities had in fact been quoted and accounted for. It complains that BSNL's decision, therefore, to load its price bid, for under-quoting some quantities is entirely unjustified and unfair. It is submitted that this action by the respondent is contrary to the terms of the tender and, therefore, utterly arbitrary.