Is an appellant is entitled to get a copy of the comparative statement of the tenderers for the aforesaid tender after its finalization? - CIC: Provide it after redacting the commercial /personal information of the bidders such as TIN no., PAN no. etc.
O R D E R
1. The appellant filed an application under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officer (CPIO), National Thermal Power Corporation, New Delhi seeking following information:-
“The information relates to the work ‘Balance work of Construction of outfall drain from raw water Reservoir Stage-I to Lailagarh River awarded to RSB Projects Ltd., Okhla Ind Estate, New Delhi’. The following information is required:-
a. Certified copy of the comparative statement prepared for finalization of the tenders for the above work.
b. Certified copies of all the versions of Service Purchase Order, Certified Copies of all the RA bills with detailed measurements including level book/sheets.
c. Certified copy of the initial Levels taken jointly with the contractor before commencement of the work, stating the date of measurement.
d. The date of actual completion of the work.”
2. The CPIO responded on 30-11-2018. The appellant filed the first appeal dated 08-12-2018 which was not disposed of by the first appellate authority. Thereafter, he filed a second appeal u/Section 19(3) A second appeal against the decision under sub-section (1) shall lie within ninety days from the date on which the decision should have been made or was actually received, with the Central Information Commission or the State Information Commission: Provided that the Central Information Commission or the State Information Commission, as the case may be, may admit the appeal after the expiry of the period of ninety days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. of the RTI Act before the Commission requesting to take appropriate legal action against the CPIO u/Section 20 of the RTI Act, 2005 and also to direct him to provide the sought for information.
3. The appellant, Mr. Anchal Kharya attended the hearing through audio conferencing. Mr. Shantimoy Nandan, AGM(RTI) and Mr. Satyanarayan Soni, DGM(Civil) participated in the hearing representing the respondent through audio conferencing. The written submissions are taken on record.
4. The appellant limited his submissions to supplying of certified copy of the comparative statement of the tenderers for the aforesaid tender. In this regard, he contended that the exemption claimed by the respondent is not applicable in this case after finalization of the tender process.
5. The respondent contended that the disclosure of the sought for information would impact on their competitive position and therefore, they have claimed exemption u/Section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; of the RTI Act, 2005. Also, the information such as Service Purchase Order, copies of all the RA bills with detailed measurements including level book/sheets etc. is voluminous in nature and therefore, they have quoted the provisions of Section 7(9) An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question. of the RTI Act, 2005. Inadvertently due to typing mistake, exemption u/Section 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; of the RTI Act, 2005 was wrongly mentioned and accordingly, they have withdrawn this exemption clause.
6. Primarily, the issue to be decided herein is whether the appellant is entitled to get a certified copy of the comparative statement of the tenderers for the aforesaid tender after its finalization. On this point, the Commission refers to the legal principle enunciated in the judgment dated 08-08-2007 rendered by the Division Bench of the Hon’ble Jharkhand High Court in State of Jharkhand v. Navin Kumar Sinha and Anr., AIR 2008 Jhar 19, 2007 (3) JCR 668 Jhr, wherein, it was held as follows:-
“26...The question therefore that falls for consideration is as to whether disclosure of various documents submitted by the bidders is a trade secret or commercial confidence or intellectual property. Prima facie, we are of the view that once a decision is taken in the matter of grant of tender, there is no justification to keep it secret. People have a right to know the basis on which the decision has been taken. If tenders are invited by the public authority and on the basis of tender documents, the eligibility of a tenderor or a bidder is decided, then those tender documents cannot be secret, that too, after the tender is decided and work order is issued on the ground that it will amount to disclosure of trade secret or commercial confidence. If the authorities of Government refuse to disclose the document, the very purpose of the Act will be frustrated. Moreover, disclosure of information, sought for by the petitioner, cannot and shall not be a trade secret or commercial confidence; rather disclosure of such information shall be in public interest, inasmuch as it will show the transparency in the activities of the Government
27…Since the tender process is completed and contract has been awarded, it will not influence the contract. Besides the above, a citizen has a right to know the genuineness of a document submitted by the tenderer in the matter of grant of tender for consultancy work or for any other work. As noticed above, the tender process is completed and the contract has been awarded, therefore, it will not influence the contract. In any view of the matter, the document in question cannot be treated as trade secret or commercial confidence. In our considered opinion a contract entered into by the public authority with a private person cannot be treated as confidential after completion of contract.”
7. In the aforesaid case of Navin Kumar Sinha and Anr. (Supra), the Hon’ble Jharkhand High Court was of the considered opinion that the contract entered into by the public authority with a private person cannot be treated as confidential after the tendering process is over and specifically after the conclusion of the contract. In view of the foregoing, this Commission observes that the tender process has since been completed and hence, there is no harm in providing certified copy of the comparative statement to the appellant. Accordingly, the respondent is directed to provide the information to the appellant on point no. 1 i.e. certified copy of the comparative statement, after redacting the commercial /personal information of the bidders such as TIN no., PAN no. etc., within a period of 15 working days from the date of receipt of this order.
8. With the above observations, the appeal is disposed of.
9. Copy of the decision be provided free of cost to the parties.
Neeraj Kumar Gupta
Citation: Anchal Kharya v. National Thermal Power Corporation in Second Appeal No. CIC/NTPCO/A/2019/109270