LexBAKSHI SECURITY AND PERSONNEL SERVICES PVT. LTD versus DEVKISHAN COMPUTED PVT. LTD. AND ORS.
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[2016] 3 S.C.R. 310 A BAKSHI SECURITY AND PERSONNEL SERVICES PVT. LTD. B c D E F G H v. DEVKISHAN COMPUTED PVT. LTD. AND ORS. (Civil Appeal No. 6978of2016) JULY26,2016 [DIPAK MISRA AND ROHINTON FALi NARIMAN, JJ.J Contract: Tender - Essential conditions - An essential condition of a tender has to be strictly complied with - In the instant case, as per the tender condition, bid below the minimum wage fixed by the government and an open ended offer were liable to be rejected - Respondent no. I tendered bid of an amount which was way below the minimum wage fixed by the Government - Moreover, offer made by it was not fixed, but open ended - Re~pondent no.1 s bid is liable to be rejected. Writ jurisdiction: Commercial bid - Held: Writ jurisdiction cannot be utilized to make a fresh bargain between parties. Allowing the appeal, the Court HELD: 1. First and foremost, under tender condition 2.5.5, commercial bids have to strictly conform to the format for the price bid provided in Annexure 2 of the tender document. Annexure 2 makes it clear that the salary paid to deployed manpower should not be less than the minimum wage. It further goes on to state in paragraph 3 thereof that if the component of salary quoted is less than the minimum wage prescribed, the bid is liable to be rejected. On this ground alone, Respondent No.1 's bid is liable to be rejected inasmuch as, vide its letter dated 3.9.2015, Respondent No.1 stuck to its original figure of Rs.2,77,68,000/- which is way below the minimum wage fixed by the Government. Secondly, offer of Rs.3,00,92,346/- is an offer which is not fixed, but open ended. This is clear from the fact that it was up to the Government then to pick up either figure by way of acceptance. This is clearly interdicted by clause 2.5.6 of the tender which states that prices quoted by the bidder have to be fixed, and no open ended bid can be entertained, the same being liable to be rejected straightaway. Such condition is 310 BAKSHI SECURITY AND PERSONNEL SERVICES PVT. LTD. v. DEVKISHAN COMPUTED PVT. LTD. AND ORS. obviously an essential condition of the tender which goes to the eligibility of persons who make offers under the tender. [Para 13) [318-B-D] 2. Unfortunately, even though the High Court noticed the open ended nature of Respondent No.1 's bid, it went on to add that the offer of Respondent No.1 shall be treated as matching with the revised minimum wage calculation and that it is nowhere envisaged by the tender conditions that rejection of an offer which may have the potential of causing loss to the tenderer is present. Once the tender condition states that the tender must strictly conform to the format provided in Annexure 2, and Annexure 2 in turn clearly states that if the component of salary quoted is less than the minimum wage prescribed, the bid is liable to be rejected, then the High Court cannot hold otherwise. The High Court's further finding that Respondent No.1 's offer was "clear" is wholly incorrect. It was a without prejudice offer which muddied the waters and rendered the price quoted by the bidder as variable and not fixed. [Para 14) [318-E-G] Poddar Steel Corpn. v. Ganesh Engineering Works (1991) 3 sec 273: 1991 (2) SCR 696; B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. (2006) 11 SCC 548: 2006 (8) Suppl. SCR 11 - relied on. 3. The writ jurisdiction cannot be utilized to make a fresh bargain between parties. The High Court was not correct in treating Respondent No.1 's offer as matching with the revised minimum wage calculation, as that would make a new contract between the parties that the parties have not made themselves. [Paras 17, 19) [320-A; F-G] General Assurance Society Ltd. v. Chandmull .Jain (1996) 3 SCR 500; Michigan Rubber (India) Limited v. State of Karnataka and Others (2012) 8 SCC 216 : 2012 (8) SCR 128 - relied on. 4. Respondent No.1 has clearly violated the strict terms of the tender condition on every occasion and hence cannot be given relief. And, secondly, due to litigation the present tender has not taken off for over one year. In the absence of malafides, and indeed the High Court judgment has found that malafides did not vitiate the calculation of minimum wage by the Labour 311 A B c D E F G H 312 SUPREME COURT REPORTS [2016] 3 S.C.R. A Department, it is not accepted that the figure of Rs.2,91,00,000/ - was tailor made to suit the bid offered by the Appe
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