22 April 2019


Judgments

High Court of Delhi

Khalsa Gymnastic Works v. Union of India

MANU/DE/0679/2017

16.03.2017

Contract

A bidder who, submits a bid being fully aware of tender conditions, cannot after award of tender, seek a modification therein

Petitioner impugns the directions of Respondent in banning Petitioner for a period of three years from entering into any business dealings with Respondent-Sports Authority of India and all its Regional Centres / Sub-Centres /Academic Institutions / SAG / SYC Centres etc. under administrative control of Sports Authority of India. Petitioner is aggrieved by banning order as well as 0period of three years for which the petitioner has been banned.

Admittedly, condition of tender invited by Respondent was that supplies had to be made within four days. Said condition was reiterated in Notification of Award as well as the Contract Agreement. Petitioner who had submitted a bid consequent to tender conditions was aware that if tender were awarded to Petitioner, the supplies would have to be made within a period of four days. Admittedly, Petitioner did not make supplies within period of four days. On contrary, Petitioner immediately on award of contract requested for alteration in delivery schedule for extending the period from four days to 40 to 60 days.

A bidder who, submits a bid being fully aware of tender conditions, cannot after award of tender, seek a modification therein. Respondent had invited tender on 24th January, 2014 and Petitioner had submitted the bid on 31st January, 2014. Notification of award and the Contract Agreement were issued on 12th February, 2014. Petitioner who had submitted the bid on 31st January, 2014, being fully aware that, supplies had to be made within four days of award, cannot be permitted to contend that it is humanly impossible to make supplies within stipulated period of four days. If Petitioner was not in a position to make supplies within stipulated period of four days, Petitioner should not have submitted bid.

Fact that the petitioner sought a variation in delivery schedule from four days to 40-60 days, immediately on award, shows that Petitioner was not having sufficient capacity and ability to make supplies within stipulated period of four days. It clearly shows that Petitioner had submitted the bid being fully aware that Petitioner would not be in a position to make the delivery of the tendered quantity. Respondents have clearly stated that time was of essence of the contract. Even wording of the Notice Inviting Tender and the Notification of Award as well as the Contract Agreement show that period of delivery was of essence. It is further stated that, tender was floated on an urgent basis, as goods were required urgently.

In view of very wording of bidding document as well as Notification of Award, it is clear that Petitioner was aware of the urgency and the fact that time was of essence of the contract. Petitioner fully knowing well that, supplies had to be made within stipulated period of four days clearly defaulted in not making supplies within stipulated period thereby causing embarrassment and loss to Respondents.

Present is a commercial matter, where as Petitioner is not a victim of circumstances but was aware, at time of submitting bid, that he does not have the capability to even perform the contract. Despite knowing that he did not have the capacity or capability to perform the contract, he submitted his bid and on award of contract, immediately requested for change in the delivery schedule. No indulgence can be shown to such a Petitioner.

Tags : Directions Ban Validity

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