High Court
Case Details
WP(C) 535/2013 BEFORE HON’BLE MR JUSTICE BK SHARMA 1. Heard Mr PJ Saikia, learned counsel for the petitioner. Also heard Mr AK Das, learned counsel appearing for the respondents 1 to 4. I have also heard Ms M Barua led by Ms M Hazarika, learned senior counsel representing the responden
Legal Reasoning
t No.6. This writ petition is directed against the Annexure-H letter dated 29.11 2. .2012 addressed to the respondent No.6 by the authority in GAIL (India) Limited requesting confirmation of acceptance of L1 rate as indicated in the letter. 3. The brief facts leading to filing the instant writ petition as projected by the petitioner is as follows :- The petitioner who is possessing all the requisite criteria to become qualified for 100% Schedule of Rates (SOR) has submitted its tender on 2nd June, 2012 comp rising both the un-priced Bid and the Priced Bid Part-II for the entire quantity of 17000 MT. Along with the commercial bid, the petitioner also submitted all t he necessary documents including EMD, financial status, notarized copy of R.C. B ook for 10 Tank Trucks with Insurance, National Permit, Fitness etc. Out of the 3 tenderers/bidders who had participated in the tender process, the rate of the petitioner having found to be the lowest, vide FOI dated 22.8.2012 GAIL offered the 100% of the SOR item to the petitioner but by a subsequent FOI dated 23.08.2 012, the petitioner was offered only 50% of the SOR item allegedly for complian ce of the Clause 27.1 of SCC Part-B under Section- IV . Although, the balance 50 % of the SOR item was offered to the respondent No. 6 who was the L2 bidder and also to the L3 bidder in compliance to the said Clause 27.1 yet, they having not responded, the petitioner was asked to execute the 100% of the work to coup up the situation though no formal work order was issued and the petitioner has also lifted the 100% of the daily produce of GAIL without any complaint or hindrance . The respondent No. 6/L2 and the L3 bidder having not accepted the offer of the GAIL for balance 50% of the SOR item their EMD were also refunded by GAIL and th e petitioner was assured of the 100% of SOR item. But surprisingly, the responde nt GAIL has re-offered the balance 50% of the SOR item to the respondent No.6 th ough the bid validity period had already expired in the meantime and also asked to furnish the EMD and to rectify the defects in the tender and the ground assig ned for non-awarding of the balance 50% of the SOR item to the petitioner is tha t the petitioner do not qualify for the 100% SOR item. (cid:29) 4. It is in the aforesaid backdrop, the petitioner is aggrieved by the offe r made to the respondent No.6 by the impugned Annexure-H letter dated 29.11.2012 . It will be pertinent to mention here that the petitioner is not aggrieved by t he offer of 50% SOR item which was done by GAIL authority in reference to Clause 27.1 of Special Conditions of Contract, which reads as follows :-
Legal Reasoning
EVALUATION AND COMPARISON OF BIDS: Pursuant to the (cid:28)ITB Clause-28 (cid:29), M/S GAIL (India) Limited will evaluate and comp are the bids previously determined to be substantially responsive and accordin gly the work the Bid evaluation would be on individual item basis and the Evalua tion of bids would be based on the following criteria for the SOR item. Based on the requirement for dispatch of Naphtha, GAIL Lakwa intends to hire Tan k Trucks to ensure lifting of approx. 700 MT per month for dispatch of Naphtha t o HPL Haldia (W.B.) which works out to 2/3 Tank Trucks per day considering an a verage 13.5 MT carrying capacity of Naphtha per truck and the one way distance of HPL Haldia from Lakwa as 1600 kms. The percentage distribution of work in ca se of award to the contractors will be as follows: Maximum TWO transporters shall be required for transporting material from GAIL, Lakwa to HPL, Haldia (W.B.). Work distribution between the transporters will be done on proportionate basis for all the successful transporters as indicated in table below :- IN CASE 2(TWO) OR MORE BIDDERS QUALIFY Distribution Two bidders are L1 as per original offers Scenario One bidder is L1 as per original offer Sl.No. 1 50% of the total job shall be aw arded to L1 bidder and remaining 50% job shall be awarded to next lower bidder a t L1 rates. 2 ll be awarded to each of the two L1 bidders. 3 The bidder whose Annual Turnover for the FY 2010-11 is found highest, shall be considered as act ual L1 bidder and the immediate lower than the actual L1 bidder shall be conside red as actual L2 bidder and accordingly 50% of the total job shall be awarded t o each of the actual L1 and L2 bidders on L1 rates. Three or more bidders are L1 as per original offers 50% of the total job sha In case of scenario 1, L2 bidder (as the case may be) shall be asked to match th eir rates with the L1 rates. In the event of L2 transporter not agreeing on L1 rates, possibility shall be explored with L3, L4,L5,L6 etc. so as to shortlist t wo (2) transporters on L1 rates. However, in case, none of the bidders agrees t o match the L1 rate, then 100% of the total job shall be awarded to the L1 bidde r if he/she qualifies for 100% of SOR item No. 10 otherwise only 50% job shall b e awarded to the L1 bidder he qualifies for 50% of SOR item No. 10 and balance 5 0% shall be re-tendered. 5. In the counter affidavit filed by the respondent Nos. 1 to 4, it has bee n denied that the petitioner is qualified for 100% of the contract job. Accordin g to the respondents, in order to avoid the possibilities of disruption in carry ing activities of Nephta produced by the L.P.G. Recovery plant at Lakwa, the Ten der Committee decided in favour of granting the contract of carriage to two tran sporters. It has been stated that the requirement of two transporters was incorp orated in the SCC. Accordingly the Tender Committee found the petitioner to be eligible for only 50% of the tendered job. 6. Referring to the Annexure-F Fax Massage dated 22.8.2012, in reference to which the petitioner has claimed that he was offered 100% of the job, the respo ndents have stated that in fact by the same Fax Massage, the petitioner was offe red 50% of the job. It is the stand of the respondents that the petitioner havin g entered into the contract in writing for 50% job, cannot now question the awar ding of balance 50% job to the respondent No.6. There is no dispute that the respondent No.6 is the L2 bidder and accord 7. ing to the respondents, it was entitled to 50% of the job subject however to the condition that they had agreed to accept the same rate offered by the L1 bidder i.e. the petitioner. Accordingly communication was sent to the respondent No.6. It has been stated in the counter affidavit that in response to the letter dat ed 29.11.2012 the respondent No.6 in turn accepted the offer and agreed to accep t 50% of the job at the rate offered by the petitioner. Be it stated here that p ursuant to the impugned communication the respondent No.6 has been performing th eir carriage job. As regards the allegation made in the writ petition that there was discr 8. epancy in the tender documents submitted by the respondent No.6 the stand of the respondent is that as per prevalent practice adopted by the GAIL, technicalitie s are not adhered to and minor and inconsequential shortcomings are allowed to b e rectified. It has been stated that even in case of the petitioner some shortco mings and deficiencies were noticed in the documents submitted, the same was all owed to be rectified. 9. It has been stated in the counter affidavit that the 50% of the job has been allotted to the respondent No.6 in the interest of the respondent Company and consequential public interest and while doing so, the Special Conditions of Contract has been referred to. 10. Mr PJ Saikia, learned counsel for the petitioner has submitted that afte r the process was over and the EMD had been refunded, the respondent Company c ould not have made the offer, and that too twice to the respondent No.6. 11. Countering the said argument Mr AK Das, learned counsel representing the respondent Company submits that Clause 27.1 of the SCC does not prohibit sendi ng of request letter to other valid tenderers asking as to whether they will agr ee to carry out the job. He submits that the action of the respondent Company in attempting to get the confirmation from the respondent No.6 was to get the bes t deal and that the action on the part of the respondent Company is in public interest. 12. In paragraph-19 of the counter affidavit the respondent Company has stat ed about certain shortcomings of the petitioner. The same paragraph refers to th e occasions where the Company had to complain about the shortcomings in the job carried out by the petitioner. 13. As noted above, the offer made by the respondents to the petitioner is f or the 50% job and there is no grievance of the petitioner in respect of the sam e. It is not the case of the petitioner that the respondent Company acted illega lly in awarding 50% of the job. However, according to the petitioner the allotme nt of balance 50% job to the respondent No. 6 being illegal, the same should hav e been offered to the petitioner, more particularly, when it is eligible in all respects. 14. As noted above, it is the stand of the respondent Company that the petit ioner was found eligible for 50% of the job which the petitioner itself has acce pted. It was in reference to Clause 27.1 of the SCC, the communications were mad e to the respondent No.6 and eventually upon acceptance of the offer made the re spondent No.6 was awarded with the balance 50% of the job. Such a course of acti on was adopted to meet the exigencies, in the event of any shortcomings or lache s on the part of a single transporter. Keeping in mind this aspect of the matter the requirement of two transporters was incorporated in the SCC. 15. While it is true that initially there was no response from the responden t No.6 but as explained in the counter affidavit filed by the said respondent No .6 there was no initial response in absence of the sole proprietor. However on h is availability and on receipt of the authority, the same was accepted by the re spondent No.6 and presently the 50% of the balance job is being carried out by t he said respondent. 16. As regards the alleged deficiencies/shortcomings as stated in the counte r affidavit, even the petitioner was allowed to rectify the same. No mala fide a nd colourful exercise of power is discernable on the part of the respondent Comp any in making the contractual bid to the respondent No.6. Needless to say that i n the matter of awarding of contract the authority is the best Judge as to how t he matter should be dealt with. As disclosed in the counter affidavit, it was on ly in the interest of the Company and for that matter the public interest, the p articular action, challenged in the writ petition, has been taken. I find no inf irmity in the impugned order. 17. For all the aforesaid discussions, I do not find any merit in the writ p etition and accordingly it is dismissed, leaving the parties to bear their own c osts.