While rejecting the exemption claimed by the PIO under Section 8(1)(d), the CIC said if this is the normal tendering process, then the rates in e-tendering can also be disclosed. This is the 80th in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application

The Central Information Commission (CIC), while allowing a complaint, directed the Public Information Officer (PIO) of Directorate of Health Services at the Government of National Capital Territory of Delhi (GNCTD) to provide information sought by the applicant. The PIO was also issued a show-cause notice for not furnishing the information within 30 days, as mandated under the Right to Information (RTI) Act.

While giving this judgement on 28 January 2011, Shailesh Gandhi, the then Central Information Commissioner said, “Given the fact that announcing the rates of all  tenderers is an intrinsic part of normal tendering process, it cannot be argued that just because of e-tendering the rates cannot be disclosed. The Commission rejects the PIO’s claim of Section 8(1)(d) of the RTI Act.”

New Delhi resident Sidharth Pandey, on 6 August 2010, sought information under the Right to Information (RTI) Act from the Public Information Officer (PIO) of the Directorate of Health Services at the GNCTD. Here is the information he sought and the reply provided by the PIO...

1. Was the tender for purchase of 34 medical items brought out in March 2010?

PIO's Reply: Yes.

2. Reasons for scrapping the first tender. Please provide all relevant copies including file notings showing the reason for scrapping the tender.        

PIO's Reply: This was with on instruction of Pr. Secy(H) as opined by the Finance Department. On representation by some firms accordingly it was re-tendered.

3. Any complaints against first round tendering?   

PIO's Reply: Same as above.

4. Copies of the complaint against the tendering, subsequent action and file notings relating to this.  

PIO's Reply: Same as above

5. Any complaints received against the second round of tendering? 

PIO's Reply: Yes

6. Copies of the complaints with file notings of subsequent actions on the complaints.

PIO's Reply: Yes

7. Certified copy of the list of rates approved with details of winner.

PIO's Reply: Copy enclosed.

8. How many companies applied for second tender?       

PIO's Reply: The second tender was never rejected

9. Details/reasons why these tenders were rejected.      

PIO's Reply: The second tender was never rejected

10. What were L2 and L3 for these products, also give names of companies which made L2 and L3 bids.  

PIO's Reply: Cannot provide under sec 8 of RTI act

11. Details of directors applying on behalf of the companies.   

PIO's Reply: List enclosed

12. Is an inquiry being conducted regarding tender process?  

PIO's Reply: No

13, 14, 15  Has the purchase been stopped, date of stopping and the reason.   

PIO's Reply: No (13 and 14)

Not satisfied with the information, Pande then filed his first appeal, in which he stated...

1- Copies of all correspondence and file notings for scrapping First Tender sought in queries 2 and 4 not provided.

2- Copies of complaints received after the First Tender with respect to 34 medical items were not provided as sought in query-3 & 4. The copies of complaints provided are of June 2010 whereas tender happened in March 2010. Hence correct information was not provided.

3- Query-5 and 6: Copies of file notings with respect to complaints are not provided.

4- Query-10: Refusal is wrong because as per Section 10(1) the PIO can provide limited information. This can be done without disclosing the name of the company. By provided this no commercial interest of any company will be harmed.

5- Query-11: Name of the director, contact details and addresses of these companies not been provided.

There was no mention of any order passed by the First Appellate Authority (FAA).

Pande, aggrieved due to incomplete information provided by the PIO and no action by the FAA, then approached the CIC with his second appeal.

During the hearing, Pandey showed the Commission booking receipt and delivery report of his first appeal sent to the FAA. Mr Gandhi, the then CIC, observed that the FAA Dr B Mohanty appeared to be guilty of dereliction of duty since he did not pass any order in the matter. He then directed the FAA to present himself before the CIC with his explanation on 11 March 2011 to show cause why the Commission should not recommend disciplinary action against him for dereliction of duty.

Deemed PIO Dr Praveen Kumar stated that the files relating to the complaints were with Health and Family Welfare Department and hence information relating to queries 2, 3, 4, 5 and 6 were not provided.

The Commission then pointed out that the PIO should have either sought the assistance under Section 5(4) or transferred the application under Section 6(3) of the RTI Act to ensure that the Appellant got the information.

The PIO while refusing information on query10 claimed exemption under Section 8(1)(d) of the RTI Act. He stated that the commercial confidence placed by the L2 and L3 bidders would be violated leading to affecting their competitive position.

Mr Gandhi, the then CIC, asked whether this was the process followed in normal tendering, to which the PIO admitted that the rates of all the tenderers are openly announced when the tenders are open. He, however, claimed that in the instant case since there was e-tendering the rates of L2 and L3 were not known to others.

Given the fact that announcing the rates of all  tenderers is an intrinsic part of normal tendering process, Mr Gandhi noted that it cannot be argued that just because of e-tendering the rates cannot be disclosed. The CIC then rejected the PIO's claim for exemption under Section 8(1)(d) of the RTI Act.

While allowing the appeal, the Commission directed the PIO to provide information on query- 11 and 12 to Pandey before 10 February 2011. The CIC also directed Dr Kumar, the deemed PIO to obtain the information on queries 2, 3, 4, 5 and 6 which has not been provided earlier to Pandey after seeking the assistance of other offices/ officers under Section 5(4) of the RTI Act. Dr Kumar after obtaining the information within 15 days from other officers, would provide it to Pandey before 25 February 2011, the Commission said in its order.

The Commission also found the PIO guilty of not furnishing information within the time specified under sub-section (1) of Section 7 by not replying within 30 days. The CIC, then issued a show-cause notice to the deemed PIO Dr Kumar and directed to submit his reasons showing cause why penalty should not be imposed on him as mandated under Section 20(1).

CENTRAL INFORMATION COMMISSION

Decision No. CIC/SG/A/2010/003598/11167

https://ciconline.nic.in/cic_decisions/CIC_SG_A_2010_003598_11167_M_50835.pdf

Appeal No. CIC/SG/A/2010/003598

Appellant                                            : Sidharth Pandey,

                                                                  New Delhi 110048.

Respondent                                        : Dr RN Sharma

                                                                  Public Information Officer & Dy. Director (Planning)

                                                                  Directorate of Health Services

                                                                  Govt. of NCT of Delhi

                                                                   F - 17, Karkardooma, Delhi