Tender Inviting Authority Can Modify Terms Before Opening Of Technical Bid, But All Tenderers Must Be Intimated: Karnataka HC

A single judge bench of Justice M Nagaprasanna said, "In terms of Rule 14 (of the Karnataka Transparency in Public Procurements, Rules, 2000) before opening of technical bid, the change, modification or amendment to the tender document is a permissible exercise of power. The only rider is that the information should be given to all the tenderers. The information is required to be given to all the tenderers, if the changes are made after the last date of submission of bids, but before opening of technical bid or opening of any bid for that matter."

The case pertains to a notice issued by the Health and Family Welfare Department in March 2022, inviting bids for the purpose of procurement of food and diet to the Government hospitals, Ramanagara. The petitioner herein Rajath R is one of the bidders. He is the proprietor of registered firm RR Enterprises, having business of supplying readymade food and diet to District Hospital, Ramanagara from 2021.

The petitioner was aggrieved by the Corrigendum issued by the State, requiring bidders to produce GST certificate for 3 years, from the initial requirement of 1 year. The petitioner said that by way of this Corrigendum he was pushed out of the race, as he did not possess a certificate for 3 years.

Findings:

The bench referred to the timeline in the tender document and Rule 14 which pertains to 'Clarification to tender documents'. It said, "A perusal at Rule 14 of the Rules what becomes evident is that at any time after issuance of the tender notification before opening of the tender, the Tender Inviting Authority may, make any change, modification or amendment to the tender document. The word 'may' make any change in Rule 14 of the Rules is unequivocal."

It held that if the dates in the case at hand are considered qua Rule 14, the unmistakable inference would be that the action of the Tender Inviting Authority suffers from no illegality.

"In the case at hand, the corrigendum is notified on 8-04-2022 long before the last date for submission of bids. Therefore, it is information to all the tenderers. The act of the respondent in issuing a corrigendum is in consonance with the power available under Rule 14 of the Rules."

The court also accepted the submission of the government counsel that corrigendum had to be issued, as stipulation of certificate of one year was itself contrary to the Government order which directed that in tenders three years of GST certificate is to be sought merits.

Finally the bench said, "The change in the tender condition by way of impugned corrigendum, does not amount to changing rules of the game after the game had commenced. It was a permissible exercise of power in law. Merely because the petitioner is non-suited by way of the said corrigendum and is moved out of the race, would not make the corrigendum illegal."

Case Title: RAJATH R v. THE STATE OF KARNATAKA

Case NO: WRIT PETITION NO. 8902 OF 2022

Citation: 2022 LiveLaw (Kar) 474

Date of Order: 9TH DAY OF NOVEMBER, 2022

Appearance: D. S. HOSMATH, ADVOCATE for petitioner;

M. VINOD KUMAR, AGA for respondent.

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