High Court
Case Details
WP(C) 1225/2013 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (CAV) Both the writ petitions challenging the action of the respondents in rej ecting the tender submitted by the petitioner in respect of the particular NIT h ave been heard together and are being disposed of by this common judgement and o rder. WP(C) No. 1520/2013
Decision
1. The petitioner M/s. D.B. Enterprise, represented by its proprietor, as c laimed in the writ petition, is engaged in various kinds of supply works includi ng supply of goods to various department of Govt. of Assam. Responding to the NI T dated 07/02/2013 inviting offers for supply of kitchen devices, more particula rly, Stainless Steel plate and glass for Lower Primary and Upper Primary Schools under Mid-day meal scheme, the petitioner offered its bid. The process of tende r was a 2 (two) bid system, technical bid followed by commercial bid. The bidder s were required to supply the samples of the items mentioned in the NIT. The las t date of submission of bid documents was 18/02/2013. The bids were to be opened on the same day and the date of opening of the commercial bid was to be intimat ed to the qualified bidders on the date of opening of technical bids. 2. According to the petitioner, it came to know about the decision of the t ender committee to award the contract to the respondent no.3 whose offered rate was Rs. 122/- per set of one plate and one glass as against the petitioner’s off ered rate of Rs. 111.15. It is the case of the petitioner that there being no va lid ground to reject its technical bid, its commercial bid should have been cons idered and awarded with the contract, more particularly, when its bid value was lower than that of the respondent No.3. 3. In the counter affidavit filed by the respondents, it has been stated th at while selecting the respondent No.3 for the contract, the commercial bids wer e opened in respect of those tenderers whose samples were found satisfactory and technical bids were also found valid. As regards the petitioner’s bid it has be en stated that its tender was rejected because of non-fulfillment of one of the criteria i.e. annual sales turnover of Rs. 2 crores in any single year during th e past 3 (three) years. 4. In response to the said plea of the respondents in their counter affidav it, the petitioner has contended in its affidavit-in-reply that it is wholly inc orrect to say that the petitioner did not submit any evidence of having received a minimum sale turnover of Rs. 2 crores in any single year during the last thre e years. It has been stated that the petitioner is the sole proprietor of 3 (thr ee) firms, namely, M/s. D.B. Enterprise, M/s. Smooth Wine and M/s. Tanvi Enterpr ise. Taking together all the 3 units, their annual turnover is more than Rs. 2 c rores in the year 2011-12 and thus its technical bid could not have been rejecte d. As shown in the affidavit-in-reply, the annual turnover of the 3 units are as follows :- M/s. D.B. Enterprise (petitioner) Rs. 56,10,000/- M/s. Smooth Wine Rs. 1,58,78,169/- M/s. Tanvi Enterprise Rs. 9,90,000/-. WP(C) No. 1225/2013 5. The petitioner is a company duly incorporated under the Companies Act, 1 956 having its registered office at Guwahati. According to the petitioner, it is engaged in manufacturing as well as resale of various commodities like motor pa rts, cars, vehicles, trucks, accessories, iron and steel furniture, etc. It is a lso engaged in supply of goods to various departments of Govt. of Assam. Referri ng to the aforesaid NIT, the petitioner has stated in the writ petition that in response to the said NIT it submitted its tender putting the rate of Rs. 108/- w hich is much lower than the rate offered by the Respondent no. 3 (Rs. 122/-). Th us according to the petitioner, the respondents ought to have accepted its tende r and awarded the contract instead of awarding he same to the respondent No.3. 6. In the counter affidavit filed by the respondents it has been stated th at upon technical evaluation of the bids, it was found that its technical bid wa s not technically acceptable as per terms and conditions of the NIT. As stated i n the affidavit, 11 tenderers participated in the tender process and after techn ical evaluation, 3 tenderers were rejected including that of the petitioner. Ref erring to the purchase committee meeting held on 26.2.2013 under the Chairmanshi p of the Commissioner and Secretary, Education (Ele) Department, it has been sta ted that the said committee unanimously decided not to approve the samples furni shed by the petitioner as the same was found un-finished and un-safe for student s and not up to the mark for use of the students. 7. In the affidavit-in-opposition filed by the respondent No.3 it has been stated that the sample furnished by the respondent No.3 having demonstrated supe rior quality to the samples furnished by the petitioner, the tender committee ri ghtly selected it for awarding of the contract. Referring to the certificate of registration annexed to the writ petition, it is stated that it does not disclos e that the petitioner is authorized to sale kitchen equipments, devices and uten sils. 8. I have heard Mr. I. Choudhury, learned counsel appearing for the petitio ner in WP(C) No. 1520/2013. I have also heard Mr. G. Choudhury, learned counsel appearing fore the petitioner in WP(C) No. 1225/2013. Mr. D. Saikia, learned AAG , Assam, appearing for the official respondents made his submission in reference to the stand of the respondents in their counter affidavit and also records pro duced by him. Mr. K.R. Surana, learned counsel appearing for the successful bidd er i.e. the respondent No.3, while adopting the arguments advanced by the learne d AAG, Assam also submitted that the case of the petitioners being devoid of mer it, both the writ petitions are liable to be dismissed. 9. Mr. I. Choudhury, learned counsel for the petitioner in WP(C) No. 1520/2 013 in his persuasive pursuits attributing fault on the part of the respondents in rejecting the technical bid of the petitioner submitted that the annual turno ver of the petitioner being more than Rs. 2 crores, its bid would not have been rejected on the ground of non-conforming to the requirement of annual turnover. Referring to the turnover of the 3 (three) units /firms of the petitioner’s prop rietor, he submitted that it being not the requirement of the turnover annually in respect of the tenderer, the tender committee ought to have considered the an nual turnover of all the 3 firms of the proprietor of the petitioner form. In th is connection, he placed reliance on two decisions, which are reported in (1995) 1 SCC 478 (New Horizons Ltd. and another Vs. Union of India and others) and 20 09(2)GLT 968 (G.R. Engineering Works Ltd. Vs. Oil India Limited and others). 10. Countering the above argument, both Mr. D. Saikia, learned AAG, Assam an d Mr. K.R. Surana, learned counsel for respondent No.3 referring to the various clauses of the NIT submitted that the petitioner cannot claim the benefit of ann ual turn over of some other firms, proprietor of which might be the petitioner’s proprietor. Emphasising the need for reading the tender conditions compositely, it was also submitted that on a total reading of the said conditions, there is absolutely no manner of doubt that the petitioner lacked in the requisite criter ion of annual turn over and accordingly the tender committee rightly rejected it s technical bid. As regards the second writ petition, Mr.G. Choudhury, learned counsel ap 11. pearing for the petitioner submitted that its bid value being much lower than th at of the respondent No.3, the authority could not have rejected its bid at the very threshold i.e. at the stage of technical evaluation. According to him, the committee ought to have considered is commercial bid upon acceptance of the tech nical bid. Countering the said argument, both Mr. Saikia, learned AAG, Assam and Mr. K.R. Surana, learned counsel for official respondents and private responden t No.3 submitted that it is for the technical committee to consider the technica l bids in reference to the various parameters laid down in the NIT and the petit ioner cannot dictate its terms. They submitted that merely because the bid amoun t of the petitioner was lower than that of the respondent no.3, the same cannot be the whole criterion for acceptance of tender. I have given my anxious consideration to the submissions made by the lea 12. rned counsel for the parties and have also perused the entire materials on recor ds including the file in which the impugned decision has been taken. My findings and conclusions are as follows. WP(C) No. 1520/2013 13. By the NIT in question it was provided that a composite set of bid docum ents can be purchased by (cid:28)interested eligible bidder (cid:29). The invitation of bids wa s open only for (cid:28)reputed authorized dealers of Steel Utensils having minimum ann ual turnover of Rs. 2 crores in any single year during last 3 years (cid:29). This means that the tenderer/dealer not only will have to be a reputed authorized dealer o f steel utensils but also will have to have a minimum annual turn over of Rs. 2 crores in any single year during the last 3 years. The question is whether this qualification can be shown to have had by referring to annual turn over of other firms not dealing with the steel utensils, although the proprietor of the said firm/firms is the one representing the petitioner said to have dealings with ste el utensils. 14. Apart from the fact that the NIT is concerned with reputed authorized d ealers of steel utensils having minimum annual turn over of Rs. 2 crores, the bi dder must also fulfill other conditions stipulated in the tender documents. The term bidder will have to be understood in the context of the particular firm off ering the bid. If we refer to the eligibility of the bidder as reflected in the tender documents, the bidder must have registration under VAT, manufacturers aut horization certificates, copy of PAN card from Income Tax Authority in the name of the firm/dealer, VAT registration certificate etc. It is the bidder who must have minimum sales turnover of Rs. 2 crores in a year during last 3 years. In the instant case, admittedly, the bidder M/s. D.B. Enterprise (petiti 15. oner) does not have the annual turnover of Rs. 2 crores. As shown by the petitio ner itself it has annual turnover of Rs. 56,10,000/-. It is only by taking into account the other two firms of the petitioner’s proprietor, it is sought to be s hown that the petitioner has a turnover of more than Rs. 2 crores. 16. Clause-3(x) and Clause 22.2 of the NIT read as follows :- (cid:28)3(x) t (CA), stating therein that the bidder has achieved a minimum sales turnover of A certificate from the bidder’s banker or registered Chartered Accountan Rs. 2.00 crores in any single year during the past three years. ******* 22.2 The Bidder must furnish evidence of having achieved a minimum sales turn over of Rs. 2.00 crores in any single year during the last 3 Years supported by audit reports, loss and profit statement, Balance Sheet and Banker’s Certioficat e, etc. (cid:28) 17. The aforesaid two clauses with the specified eligibility of bidder which is the requirement of being a reputed authorized dealer of steel utensils havin g minimum annual turnover of Rs. 2 crores is relatable only to the dealer partic ipating in the bid process. In the instant case, it is M/s. D.B. Enterprise whic h participated in the tender process whose turnover is only Rs. 56,10,000/- and thus having not conformed to the requirement of the annual turnover of Rs. 2 cro res, if the tender committee decided to reject its technical bid, no fault can b e attributed to it. Clause-4 of the tender documents laying down the procedure o f consideration of the tenders reads as follows :- Procedure of consideration on the tenders - The envelope marked as ’Tech (cid:28)4. nical bid’ will be opened and the contents will be evaluated at the first stage. Then the samples submitted by the bidders will be inspected. The commercial bid of those bidders will only be opened whose samples are found satisfactory and T echnical bid are found valid in accordance with the instructions and specificati ons. (cid:29) In New Horizon Ltd. (Supra), the Apex Court was concerned with a joint v 18. enture corporation. In the said case, an advertisement was published inviting se aled tenders from competent agencies for printing, binding and supply of specifi ed number of telephone directories for 3 annual issues commencing from 1993. Dea ling with the particular experience required for the tenderer, it was held that the said experience may not be construed to mean that it should be of the tender er in his name only. The particular joint venture company was a tenderer and in the said circumstances it was held that experience of constituents of the joint venture company should be treated as the own experience of the tenderer. Same is not the case in hand. The petitioner is not a joint venture company so as to ta ke into account its experience of financial conditions of its constituents as it s own experience. As noted above, the petitioner is an independent firm having n o nexus with other two firms, namely, M/s. Smooth Wine and M/s. Tanvi Enterprise . The said two other firms also do not deal with steel utensils and not the auth orized dealers of steel utensils. 19. In G.R. Engineering Works Ltd. (Supra), this Court was concerned with th e assessment of eligibility conditions, it was observed that the satisfaction of the authority that really matters in awarding of a contract to a prospective bi dder. Such satisfaction is from the commercial and not the legalistic point of v iew. In the said case, the scope of the work was residual design, detailed engin eering procurement of materials and bought out components, fabrication etc. It w as stipulated in the NIT that the tender must be an established fabricator of mo unded storage vessels/ vessels of carbon steel etc. and should have fabricated a t-least two such items in the past 7(seven) years. It was also provided that the minimum annual turnover of the bidder should be equal to or more than INR 2325 lakhs during any one of the last 3 (three) financial years. In that case, the 3r d respondent company came to be incorporated on 11.6.2002. It was a partnership firm carrying on business from 1994 with two partners for the purpose of fabrica ted, welding etc. The said partnership firm came to be reconstituted in the year 1999 by taking a 3rd partner and continued the business. The said three partner s floated the 3rd respondent, a private limited company in the year 2002. The ma in object of the 3rd respondent to take over the existing business of the partne rship firm with all its assets and liabilities and to continue with the business . It was in the said circumstances, it was held that there was no impediment in law in taking into account the experience and financial soundness of the 3rd res pondent when the persons were partners not only became the share holders but dir ectors of the respondent no.3. The said position in G.R. Engineering Works Ltd. (Supra) is not the pos 20. ition here. As discussed above, the tender was submitted by M/s. D.B. Enterprise as dealer in steel utensils. Its proprietor may be the proprietor of two other firms unconnected with the dealings of steel utensils. The annual turnover of th e petitioner firm inter alia is shown independently. When the NIT has specified that bid will be accepted only from the reputed dealers of steel utensils having minimum annual turnover of Rs. 2 crores, the petitioner firm cannot fall back o n the annual turnover of the other two firms unconnected with the tender process . 21. Above being the position, none of the aforesaid decision is applicable t o the facts situation of the present case and accordingly the writ petition is l iable to be dismissed, which I accordingly do. WP(C) No. 1225/2013 22. As noted above as per the tender clause, the commercial bid of those bid ders will only be opened whose samples are found satisfactory and technical bid are found valid in accordance with the instructions and specifications. On perus al of the records produced by the learned AAG, Assam, it is found that the purch ase committee in its meeting held on 07/03/2013 duly considered the bid of the p etitioner and noticing the diameters and weight of the utensils offered by it as samples, found the same un-finished, unsafe and not up to the mark of the stude nts. Accordingly, its bid was rejected. During the course of hearing of the writ petition also as per the earlie 23. r direction of this Court issued on 05/04/2013, the officials of the respondents along with record also produced the samples furnished by the petitioner as well as the respondent No.3. For a prima-facie satisfaction of the said utensils, th e same was verified in presence of the learned counsel for the parties and prima -facie it was found that the utensils offered by the respondent No.3 are of bet ter in quality than that of the petitioner. However, this aspect of the matter n eed not detain us as the samples were verified by an expert body and this Court exercising writ jurisdiction cannot sit on appeal over the findings recorded by the said expert body so as to return a finding that the utensils offered by the petitioner are of inferior quality than the one offered by the respondent No.3. In absence of any malafide and / or colourable exercise of power and nothing to show that the decision making process of the tender committee is vitiated by an y procedural irregularity, it is not for the Writ Court to issue any direction t o the respondents to act in a particular manner as has been desired by the petit ioner. 24. For all the aforesaid reasons, this writ petition also merits dismissal, which I accordingly do. 25. the parties are left to bear their own costs. Both the writ petitions are dismissed. Interim orders stand vacated and