CIC: In case the appellant is a bidder and entitled to witness the price bid at the time of opening the said bid, the comparative statement of the price bid should be provided to the appellant after following severability; Warning to the CPIO

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) O/o. the Oil and Natural Gas Corporation Limited, Bandra (East) Mumbai. The appellant seeking information on two points which are as under:-

2. The CPIO vide letter dated 13-11-2019 had denied the information under 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; 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; 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. Being dissatisfied with the same, the appellant has file first appeal dated 19-11-2019 and requested that the information should be provided to him. The FAA vide order dated 03-12-2019 upheld the reply furnished by the CPIO and disposed of his appeal accordingly.

Thereafter the appellant has filed a second appeal before the Commission on the ground that information sought has not been provided to him and requested to direct the respondent to provide complete and correct information.

Hearing:

3. The appellant attended the hearing through audio-call. The respondent, Shri Vivek Jhiney, General Manager (HR)/ CPIO attended the hearing through audio-call.

4. The respondent submitted their written submissions dated 26.07.2021 and the same has been taken on record.

5. The appellant submitted that the desired information has not been provided to him by the respondent on his RTI application dated 23.10.2019. Further in support of his argument the appellant relied upon a previous judgment passed by the Commission in Second Appeal no. CIC/UCOBK/A/2017/192263 Dated 28.03.2018, wherein the Commission directed the respondent to furnish the comparative statement after severing personal information of third parties from the same.

6. Initially the respondent was unable to explain the case before the Commission as to when and what reply was given to the appellant on his RTI applications dated 23.10.2019. Thereafter the respondent while reiterating the replies of the CPIO/ FAA submitted that vide their letter dated 13.11.2019, they have informed the appellant that the information sought falls under the exemption granted in 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; 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; 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, which will adversely affect the competitors mentioned in the comparative statement. Further the FAA vide its order dated 03.12.2019 also upheld the reply furnished by the CPIO. Upon being queried by the Commission how furnishing the said information as sought in the RTI application will affect the commercial confidence, the CPIO remained mum and was unable to give any plausible explanation for the same.

Decision:

7. The Commission, after hearing the submissions of both the parties and after perusal of records, observes that the appellant has sought information pertaining to the bidding process for visiting card, letterheads and rubberstamp tender contract, including the comparative statement of price bid. The respondent has denied the information to the appellant under 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; 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; 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. The Commission further observes that the previous decision of the Commission relied upon by the appellant vide second appeal no. CIC/UCOBK/A/2017/192263 Dated 28.03.2018, is relevant only in case if the appellant himself is an eligible bidder and participated in the bidding process. A registered vendor/ eligible vendor is entitled and has specific right as per the bidding process in which it is claimed that price bids were to be opened in front of all the participating bidders. In such a condition, in a bidding process every eligible bidder is entitled to know the price bids of all the competing parties and he is free to take note of them. A Comparative statement of all the participating bidders is being prepared with or without inter-se process in the order of their price bids along with the successful bidder being indicated.

8. In this regard, the Commission referred to the decision of the Division bench of Jharkhand High Court, in State of Jharkhand v. Navin Kumar Sinha and Anr., AIR 2008 Jharkhand 19 dated 08/08/2007, has held as under:

“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.”

It is further noted that the aforementioned decision was challenged before the Hon’ble Supreme Court of India in SLP (C) No. 18030/2007 and dismissed on 5th October, 2007.

9. In view of the above, the Commission therefore observes that since it is not categorically confirmed that whether the appellant is a registered vendor by the respondent for the said bid or not. The Commission therefore directs the respondent that in case the appellant is a bidder & entitled to witness the price bid at the time of opening the said bid, the comparative statement of the price bid should be provided to the appellant after following the provisions laid down under Section 10 of the RTI Act, 2005, by redacting the third party personal information such as PAN number, TAN number, registration number, etc. of the third parties, to the appellant, within a period of 30 days from the date of receipt of this order under the intimation to the Commission. In case the appellant is not a bidder in the said bid and seeking the said information merely as a citizen, it cannot be provided as it will affect the commercial interest of the third parties participating in the bidding process as per the provisions of the RTI Act, 2005.

10. Further, the Commission issues a strict warning to the CPIO Shri Vivek Jhiney, to remain more vigilant and cautious in future while dealing with the RTI Applications and is also directed to come fully prepared with the facts of the cases in future.

11. With the above observations, the appeal is disposed of.

12. Copy of the decision be provided free of cost to the parties.

Neeraj Kumar Gupta

Information Commissioner

Citation: Mr. Amol Chandrakant Naik v. Oil and Natural Gas Corporation Limited in Second Appeal No. CIC/ONGCL/A/2019/659345, Date of decision: 25-10-2021