High Court
Case Details
WP(C) 346/2013 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (CAV) Both the Writ petitions by and between the same parties pertaining to the impugn ed tender processes have been heard together and are being disposed of by this c ommon judgment and order. 2. The petitioner which is a duly constituted registered proprietorship fi rm having its office at Guwahati and represented by sole proprietor has filed the first Writ Petition being WP(C) No. 346/2013 challenging the order of acce ptance issued in favour of the respondent No. 4 in connection with the (cid:28)work fo r Supply, installation and commissioning of SDH Add/Drop MUX(STM-1/STM-4) (cid:29) and o ther associated equipments for OFC communication in various section including pr ovision of OFC(24 fibre) and 6 Quad cable involving trenching, laying, jointin g and their termination in section Golakgangj-Bilasipara (New Line) under NMX-JP Z project of APDJ Divn. Of N.F. Railway’’ in pursuance of tender processes conve ned vide Tender No. DY. CSTE/Con/NJP/2012/03/GKJ- Bilasipara/OFC-SYS pertaining to Tender Notice No. S & T/CON/2012/03. 3. In the second Writ petition being WP(C) No. 356/2013 the challenge made is to is to set aside and quash the letter of acceptance issued in favour of re spondent No. 4 in connection with the work for (cid:28)Supply, installation and commiss ioning of SDH Add/Drop MUX(STM-1/STM-4) and other associated equipments for OFC communication in various section including provision of OFC(24 fibre) and 6 Qu ad cable involving trenching, laying, jointing and their termination in section Golakgangj-Bilasipara (New Line) under NMX-JPZ project of APDJ Divn. Of N.F. Rai lway’’ in pursuance of tender processes convened vide Tender No. DY. CSTE/Con/NJ P/2012/03/GKJ- Bilasipara/OFC-SYS pertaining to Tender Notice No. S & T/CON/2012 /03. 4. In both the writ petitions, further prayer made is to direct the respond ents 1, 2, & 3 to reconsider the bid of the petitioner in respect of both the co ntracts. Facts involved and the issues raised in both the Writ petitions being m ore or less the same, the learned counsel for the parties argued their respectiv e cases in reference to the first Writ petition being WP(C) No. 346/2013. 5. Mr. S.S. Dey, learned counsel appearing for the petitioners referring to the qualifying/eligibility criteria both under the technical eligibility criter ia and financial eligibility criteria submitted that the respondent No. 4 in who se favour the letter of acceptance has been issued being not qualified/eligible ought not to have been considered. He submitted that as per the requirement of t he said qualifying/eligibility criteria, respondent No. 4 having not done the wo rk stipulated under technical eligibility criteria and the work in reference to which its bid has been accepted, being in the joint venture, the same could not have been considered by the tender committee. Referring to the minutes of the t ender committee he also submitted that there is total non-application of mind to wards accepting the tender submitted by the respondent No. 4.
Legal Reasoning
6. Mr. A.K. Sarkar, learned Standing Counsel, Railways referring to the var ious tender conditions submitted, that the petitioner having not fulfilled the e ligibility criteria, the tender committee could not consider his bid, but on the other hand, the respondent No. 4 having fulfilled the required criteria, the wo rk has been entrusted to the said respondent in acceptance of its tender. 7. Mr. U. Dutta, learned counsel appearing for the respondent No. 4 submitt ed that if the plea of the petitioner is to be accepted, compromise will have t o be made with the tender conditions. Referring to the pleas on which the writ p etitions are structured and the counter thereof in the affidavits in opposition filed by the respondent No. 4 and also the official respondents, he submitted that the particular exercise carried out by the tender committee cannot be inte rfered with in exercise of writ jurisdiction. He submitted that the petitioner h aving not fulfilled the eligibility criteria, the tender committee was not in a position to consider its tender, but on the other hand, the respondent No. 4 hav ing fulfilled all the requisite criteria, the letter of acceptance has been issu ed to it in acceptance of the tender submitted by it. 8. ments read as follows:- The qualifying/eligibility criteria under clause 12.0 of the tender docu (cid:28)QUALIFYING/ELIGIBILTY CRITERIA: All the tenderer(s) irrespective of their being known to this organisation or no t, must submit related supporting documents in respect of the following: 12.1. Technical Eligibility Criteria i) The tender(s) should have completed at least one similar single word for a minimum value of 35% of advertised tender value work. ii) Similar nature of works physically completed within the qualified period i.e., the last three financial years and current financial year (even though th e word might have commenced before the qualifying period) should only be conside red in evaluating the eligibility criteria. The total value of similar nature of work completed during the qualifyin iii) g period and not the payments received within qualifying period alone should be considered. iv) In the case of composite works involving combination of different works, even separate completed works of required value should be considered while eval uating the eligibility criteria. v) Similar nature work means: (cid:28)Telecom Works of Trenching and laying includ ing splicing, termination with supply of STM/PDMUX equipment and/or associated t elecom equipment for: OFC and Quad cable (cid:29). Note: (cid:28)If the tenderer is not OEM of STM/DMUX equipment, then MOU (Notarised with OEM for technical support in installation commissioning, post commissioning maintena nce problem, failures and supply of its spares to be submitted vi) uted/being executed shall not be considered. (cid:29) Certificate from private individuals/firms for whom such works are exec 12.2 Financial Eligibility Criteria: Total contract amount received by the during the last years (i.e., current year and three previous financial years) should be total minimum of 150% of advertise d tender value of work, supported by a) nt of PSUs etc. or Authenticated payment record of N.F. Railway or any other Govt. Departme b) Audited Financial Statement certified by Chartered Accountant. 12.3 Joint Venture will be permitted in this tender. (cid:29) As per the clause 2.2 of the tender document, the value of contract cove 9. rs a total of 05(5) number of stations viz. Golakgang, Gouripur, Alamgang, Bogri bari and Bilasipara in APDJ division of NF railway which comprises the following . (cid:28)Schedules Schedule- A- Supply of OFC equipment Schedule- B- Execution of OFC equipment Schedule- C- Supply of other telecom materials Schedule- D -Execution of outdoor telecom work (cid:29). 10. Under clause 20.0 of the tender documents, the Railways reserve the righ t to hold negotiations with L-1 tenderer, who should be the lowest, valid, eligi ble and technically acceptable tenderer could also been considered for award of the contract directly if the rates were not unreasonably high. 11. ns of tender and contract, clause 12.3 reads as follows:- Under chapter III of the tender documents providing for special conditio (cid:28)The signalling and Telecomm. Materials for which RDSO approved firms exist sho uld be procured from Part-I approved firms only. In case for any materials for w hich there is no Part-I approved firm, it can be procured form Part-II approved firm. No materials are to be procured from firms which are banned by Railway Boa rd/RDSO (cid:29). 12. The grounds on which the challenge to the acceptance of the tender submi tted by the respondent No. 4 has been formulated are available in paragraph 9 of
Decision
the Writ petition which is quoted below:- (cid:28)That your Petitioner states subsequent to the opening of the tenders, the petit ioner detected that the following prima facie glaring defects in the Tender Docu ments of the Respondent No. 4.:- (a) contrary to the requirements of the Clause 12.1(i) of Qualifying/Eligibi lity criteria, the Respondent No. 4 had neither completed any similar single wor k for the minimum value of 35% of the advertised Tender Value of the Work indivi dually in last 3 years. (b) The Respondent No. 4 also could not show any document of receipt of paym ent amounting to total minimum of 150% of Tender Value of the work individually for last 3 financial years. (c) The Respondent No. 4 also did not comply with the requirements of TDS Ce rtificates, audited Balance Sheets as well as attested Certificates from employe r/clients as required under various clauses of the Tender Document for verificat ion. It may be stated herein that as per Clause 12.3 SECTION-I (Chapter-II) having de barred from Joint Ventures, it essentially signifies that individual entitles ha ve to submit tenders also fulfilling all the qualifying/eligibility criteria set out under the entire Clause-12 on the basis of their individual/personal qualif ication and not their qualification based on any past joint Venture project. (cid:29) 13. According to the petitioner, the respondent No. 4, has not fulfilled the qualifying/eligibility criteria on the basis of their individual/personal quali fication, although they might have fulfilled the same on the basis of joint vent ure project which is barred in the present tender. On the other hand it is the s tand of the respondents that the petitioner has emphasised on (cid:28)individual/person al qualification (cid:29) of its own without there being any such requirements in the te nder document. 14. According to the petitioner, the respondent No. 4 is disqualified in te rms of the above quoted clause 12, having not fulfilled the eligibility criteria of an individual tenderer and its individual eligibility criteria being sought to be fulfilled by means of its past association for execution of work under joi nt venture. The Railways in its affidavit while dealing with the eligibility cri teria of the petitioner has stated thus: (cid:28)That in regard to the statements made in Para 6 of the writ petition, it is sta ted that the petitioner did not fulfil the requirements of Para 12.3 (cid:29)of Chapter- II (special conditions of Tender). The clause 12.3 of Chapter-II reads thus:- th e clause 12.3 of chapter-III reads:- (cid:28)The Signalling and Telecom. Materials for which RDSO approved firms should be p rocured form Part-I approved firms only. In case for any materials for which the re is no Part-I approved, it can be procured from Part-II approved firm. No mate rials are to be procured from firms which are banned by Railway Board/RDSO. At t he relevant point of time when the tender was invited by the respondent no.3, it was the Research Designs and Standards Organisation, (Ministry of Railway), Luc know QS-M7. 1-3, July 2012 Approved List of Firms for Manufacture and Supply jof Electrical Signalling and Telecommunication Items was in force. The said approv ed list was valid from 01.07.2012 to 31.12.2012. there are only two firms under the Part-I approved list and these are-M/s Punjab Communications Limited, Chandi garh and M/s Webfil Limited of Kolkata. Again, there are two firms under the Par t-II approved list and these are:- M/s Commtel Networks Pvt Ltd of Mumbai, and M /s Coral Telecom Limited of Noida. In the present tender, the petitioner has quo ted PDMUX from M.s Coral Telecom Limited of Part-II RDSO approved firm and so, i t is not as per requirement of tender condition as mentioned in Para 12.3 of Sec tion-I, Chapter-III (Special Conditions of Tender & Contract). The Section-II of the tender contains the Technical Specifications. The Chapter- VII of the Section-II contains inter-alia the Scope of work and in bold letters it is stated therein- (cid:28) Since this work is incremental work to existing OFS syste m, full compatibility and conformity should be maintained with existing associat e OFC, MUX and Control Equipment (cid:29). (Page No. 116 of the writ petition). As such, it is crystal clear that the work is an incremental work to existing OFC syste m and in the existing control board/OFC link SDH of M/s Tejas, PDMUX of M/s Punj ab Communication are installed. Hence, technically the offer of the petitioner is not considered responsive and not conforms all the specifications without any material deviation. Furthermore, the offer of the petitioner is non-economic in the sense of spare management. Because, some additional inventory, i.e. new kin d of cars and modules will be required for maintenance of the OFC link. Hence th e offer of the petitioner is technically not a suitable offer. Instead, the resp ondent no. 4 as submitted MOU (Notarised) with OEM (Original Equipment Manufactu rer) M/s Punjab Communication Ltd. In support of PDMUX and a MOU (Notarised) a w ith OEM Tejas Network India Limited, Banglore in support of SDH ADD/DROP MUX. (cid:29) 15. Although the petitioner has emphasised on the purported requirement on (cid:28) individual/personal qualification (cid:29) but nowhere, under clause 12(qualifying/eligi bility criteria) it is provided that the tender(s) has /have to complete individ ually in similar single work for the minimum value of 30% of the advertised ten der value of work. As stated in the counter-affidavit filed by the respondent ra ilways, the petitioner along with the tender documents submitted unaudited figur e for financial year 2010-2011 and further put one approximate amount from 1st A pril 2011 to 31.07.2011. On the other hand, the respondent No. 4 has submitted d efinite figures showing receipt of 150% of the advertised tender value of work d uring the prescribed period. The same is also supported by an audit financial st atement certified by the Charter Accountant for the financial year 2010-2011 and also the record of payment issued by Railway officials and the same were proper ly verified and found to be correct and genuine. 16. Although the petitioner has put much emphasise on the term (cid:28)joint ventur e (cid:29), but as per clause 12.3 of the tender document, it is only the participation of joint venture which is not permitted/debarred in the tender as it is not the major tender. Coupled with this, as per annexure 1 of the Railway Board’s circul ar letter dated 02.09.2008, value of a completed work done by a tender in an ear lier partnership firm or a Joint Venture firm shall be reckoned only to the exte nt of the concerned tenderers share in that partnership firm/Joint Venture firm for the purpose of satisfying compliance of the above mentioned technical eligib ility criteria in the tender under consideration. 17. Clause 16.2 of the said circular is related to the financial eligibility criteria. The NOTE under heading financial eligibility criteria reads thus:- (cid:28)Contractual payment received by a Member in an earlier JV firm shall be reckone d only to the extent of the concerned member’s share in that JV firm for the pur pose of satisfying compliance of the above mentioned financial eligibility crite ria in the tender under consideration (cid:29). 18. It is for the above reason that the tender committee found respondent N o. 4 as financially qualified even though its qualification may be based on past joint venture project in which the said respondent has a major stack. 19. Tenders were finalised in compliance of the terms and conditions laid do wn in the tender documents of the concerned tender notice and also in compliance of Railways Boards Policy on the said matter (cid:28)appointment of works contractor a nd finalisation of tenders (cid:29). In this connection the respondent railways have ref erred to the Railway Board’s letter dated 22.01.2001 in which the term L-1 has b een defined as the lowest, valid, logical and technically acceptable tenderer. I n the instant case, the respondent No. 4 has been issued with the LOA on 12.01.2 013 as it was found that the offer made by the said respondent satisfied the tec hnical and financial requirements. The offer made by the said respondent was reg arded as the valid L-1 lowest offer. there would be a failure in saving the system integrity of entire instal there would be material deviation in the integrity of entire installatio 20. In paragraph 10 of the counter-affidavit filed by the respondent railway s, it has been stated that if the tender of the petitioner was to be accepted, t hen in such events, (I) lation as the nature of the work is incremental in nature; (II) n as the protocol will not match; (III) new kind of cards and modules will be required for maintenance of the OFC link; (IV) e; there will be wilful violation of the Approved List of Firms for Manufac (V) ture and Supply of Electrical Signalling and Telecommunication items prepared by the Research Designs and Standards Organisation, (Ministry of Railway), Lucknow vide QS-M-7. 1-3, July 2012, which was in force at the relevant time frame; the authority will have to incur more cost as additional inventory i.e. there would be wastage of public money and it will dent the sate largess It is to be noted that as per the minutes of the tender committee, the o 21. ffer made by the respondent No. 4 was found to be technically sound and viable a nd in conformity with the approved list prepared by (cid:28)Research Designs and Standa rds Organisations (cid:29) (RDSO), Ministry of Railways, Lucknow QS-M-7.1-3, July 2012, Approved List of Firms for Manufacturer and Supply of electrical signalling t elecommunication items, which was in force at the relevant time. As against the annexure 8 RDSO approved list of January 2011, annexed to the reply affidavit fi led by the petitioner, the respondent No. 4 in his affidavit has referred to the approved list of July 2012, which was applicable at the time of invitation and opening the present tenders. The said RDSO approved list is for the period from 01.07.2012 to 31.12.2012. The nature of work is incremental and thus the increme ntal telecom work in the aforementioned five stations is also required to be exe cuted in conformity with the other station of which Golakganj and Bilasipara is a small part as stated in the counter-affidavit filed by the respondent No. 4 wh ich in its proprietorship business enterprise has MOU with different firms which are approved as per the part (I) of RDSO approved list and it has offered PINCO M-MUX and SDH equipment of Messer’s TEJAS in its tender. Thus, it cannot be said that the offer made by the respondent No. 4 is not in consonance with the exist ing installation set up Per contra, the Writ petitioner has no MOU with M/s PUNC OM and it has MOU only with M/s WEBFIL limited as reflected in the minutes of th e tender committee. The petitioner has quoted MUX of M/s Corel telecom limited w hich is in part II of the approved list of RDSO. As regards the emphasis on the clause in the tender document, (cid:28)joint ven 22. ture is not permitted in this tender (cid:28)it is clear that the same leads to only on e meaning which is participation of any joint venture company/business firm is n ot permitted in the tender process. As reflected in the tender document itself, tenders have been invited from the established firms and manufacturers or their authorised agents for supply and execution. The tender documents have nowhere pu t any restriction that the participant in the tender process has to be qualified financially on his individual basis. 23. It was argued on behalf of the petitioner, that it being joint L-1 alon g with the respondent No. 4 should have been invited for negotiation. Suffice i s to say that mere similarity in the financial bid of the petitioner did not ent itle it to be considered unless it was found technically competent to be offer ed with the work. Admittedly, the petitioner has no MOU standing with M/s Punjab communication limited of Mohali Chandigarh shortly known as PUNCUM. Pursuant to the, letter of acceptance issued to the respondent No. 4, th 24. e said respondent has already executed guarantee bond towards performance of the contract on 17.01.2013 (value of guarantee rupees 21,47,808/-). The work in que stion is also required to be executed with 180 days form the date of LOA. The tender committee constituted by experts in its meeting held on 03.12 25. .2012 having deliberated upon the matter in details(page:-19-31 of Annexure-2-c ounter-affidavit of railways), this court exercising its power of Judicial Revi ew under article 226 of the constitution of India cannot interfere with the said findings lightly. The committee in consideration the eligibility, both technica l and financial upon evaluating the bids has commented thus :- (cid:28)Techno Compact Builder, Guwahati (offer No. 4/4): the tenderer Techno Compact b uilder, Guwahati ()offer No. 4/4) has submitted the following MOU (Noarised) wit h OEM A. M/S CORAL TELECOM LIMITED. Noida in support of PDMUX. B. TEJAS NETWORK INDIA LIMITED, Bangalore in support of SDH ADD/DROP MUX (S N-125 to 130). The MOU (Notarised) has been legally vetted with some observation s by LO/Con at (SN- 372, Para 1 & 2). TC is of the opinion observation is minor & will be compelled by the tenderer if the tenderer if the tenderer will become eligible L-1 C. support of PDMUX Observation of TC member for MOU of M/S CORAL TELECOM LIMITED, Noida in It is mentioned n Section-I Chapter-III(Special Condition of Ten der & Contract) Para 12.3 that the signalling & Telecom materials for which RD SO approved firm exist should be procured from Part-I approved firm only. In cas e for any materials for which there is no Part-I approved firm, it can be procur ed from Part-II approved firm. No materials are to be procured from firms which are banned by Railways Board/RDSO. Techno Contact Builder has quoted PDMUX from M/s Coral of Part II RDSO approved firm which is not as per the requirement of tender condition me ntioned as in Section-I Chapter-III(Special Condition of Tender & Contract) para 12.3. Thus, TC is of the opinion that their offer is incomplete & does not satisfy the requirement as mentioned in Section-I Chapter-III(Special Condi tion of Tender & Contract) para 12.3. 12.0 OBSERVATIONS BY TENDER COMMITTEE: Under Technical Eligibility, criteria, it is stipulated that (cid:28)IF the tenderer is not OEM of STM/DMUX equipment, then MOU (Notarised) with OEM fo r technical support in installation commissioning, post commissioning maintenanc e problems, failures and supply of its spares to be submitted’’. It is seen that MOU has been submitted by all the tenderer for the period of the validity of th e contract. 13.0 With the discussion vide para 3 to para 11, TC found that 13.01 Offer (3/4) of Rama Telecom Pvt. Ltd. Rejected vide NIT Clauses B & TD Cl ause 8.0 (b), as firm has not deposited requisite amount toward Tender Cost as d iscussed in item No.3.3 13.02 Offer (1/4) of East India Enterprise, Guwahati does not satisfying the T echnical Eligibility Criteria of NIT Clause 1 & TD Clauses 12.1 (i). Hence, East India Enterprise, Guwahati officer is not considered. 13.03 Offer of Techno Compact Builder, Guwahati ( Offer 4/4) has not satisfy the tender document condition as mentioned in Section-I Chapter-III ( Sp ecial Conditions of Tender & Contract) para 12.3 respectively. Hence, treated in complete as discussed in para 11.4 & considered not to discussed further. In view of the above, TC considers the offer of 13.04 Global Communications, Siliguri (Offer No. 2/4) is technically & financially sui table and eligible L-1 in terms of eligibility criteria & satisfy the tender doc ument condition laid down for the present tender. 17.0 Discussion of the lowest offer:- Out of the 4(four) Tender, the lowest eligible offer L-1 is rece ived form Global Communication, Siliguri at a total cost of Rs. 4,40,45,040/- w hich is (+)9.2% above from the Railways estimated cost of Rs. 4,03,39,610/- of t he work. So tender committee has decided to negotiate on the offer of Global Com munication Siliguri to explore the possibility of reduction of rate. 18.0 RECOMMENDATIONS In view of the above deliberations, Tender Committee has recomme nded to hold 1(one) round of negotiation with L-1 tendered, Global Communication , Siliguri (2/4), (i) to negotiate for quoted rate Schedule B, Schedule C & Sche dule D & (ii) To withdraw special request, although it has no financial implica tion (cid:29). 26. The tender committee being expert body consisting of technical persons h aving undergone the particular exercise with all its expertise and on the basis of the said exercise having arrived at the particular conclusion, this Court exe rcising its Writ jurisdiction cannot sit on appeal over such expertise none and that too in absence of any malafide exercise of powers the members of a said com mittee. There is also no allegations of violation of any statutory rules. 27. For all the aforesaid reasons, I do not find any merit in the writ petit ions and accordingly they are dismissed, leaving the parties to be bear their ow n costs. 28. The interim order operating in this proceedings stand vacated.