Madrasdated High Court · 2025

W.P.No.36078 of 2024For Petitioner: M/s.Vikram P JainFor R1: Mr.N.NithianandamFor R2: Mr.S.Makesh Additional Central Government Standing CounselFor R3: Mr.Sandeep Bagmar.RFor R4: Mr.P.SureshO R D E RThe Writ Petition is filed challenging the impugned order of the 1st respondent disqualifying the petitioner's bid submitted in response to the Tender Notice No.GEM/2024/B/4974749, dated 23.05.2024 and further to direct the 1st respondent to re-evaluate the petitioner's bid in accordance with law.2. It is the case of the petitioner that the petitioner is a reputed manufacturer of steel cord belts with an established track record of supplying to various industries, including the respondents. On 23.05.2024, the 1st respondent issued a Tender Notice for procurement of 24,300 meters of 2000mm wide ST3150 steel cord belts. As per the Pre-Qualification 3/15 https://www.mhc.tn.gov.in/judis W.P.No.36078 of 2024Requirements (PQR-2) mentioned in the tender conditions, the bidders should have supplied steel cord belts of 1800mm or higher width, with atleast 400 meters having worked satisfactorily for two years or 10,000 hours. The petitioner already supplied 2000 meters and 600 meters of steel cord belts under two separate Purchase Orders dated 06.04.2019 and 08.01.2021 respectively to the 1st respondent itself. The 1st respondent also issued a Performance Certificate dated 26.04.2023 certifying the satisfactory performance of these belts supplied by the petitioner. It is also stated that till the date of filing of writ petition, there was no adverse communication from the 1st respondent regarding non-satisfactory performance of the steel cord belts supplied by the petitioner. Therefore, it is the case of the petitioner that it satisfied the PQR-2 conditions. But however, overlooking the qualification of the petitioner, the 1st respondent passed the impugned order and uploaded it on online portal as if, the petitioner failed to satisfy the PQR-2 requirements and aggrieved by the same, the petitioner has come before this Court.3. The learned counsel appearing for the petitioner submitted that earlier the petitioner supplied 600 meters of specified steel cord belts to 1st 4/15 https://www.mhc.tn.gov.in/judis W.P.No.36078 of 2024respondent and Performance Certificate was issued on 26.04.2023 regarding satisfactory performance of these belts supplied by the petitioner. Thereafter, nearly for more than 17 months, there is no adverse communication from the 1st respondent regarding unsatisfactory performance of the steel cord belts supplied by the petitioner in the years 2021 to 2023. Therefore, it is the contention of the learned counsel appearing for the petitioner that the steel cord belts supplied by the petitioner performed with the 1st respondent for more than 2 years satisfactorily and hence, the impugned order is bad. The learned counsel further submitted that the 1st respondent failed to issue necessary Performance Certificate after completion of 2 years and the same cannot be put against the petitioner. The learned counsel further submitted that the averment raised by the respondents as if, the belts supplied by the petitioner have not been continuously used and it has not completed the required period of two years is far from truth and in the absence of any adverse communication regarding non-satisfactory performance of the belts supplied by the petitioner, it shall be deemed that petitioner's belts have been used by the 1st respondent continuously from the date of supply.5/15 https://www.mhc.tn.gov.in/judis W.P.No.36078 of 20244. The learned counsel appearing for the 1st respondent by taking this Court to the Performance Certificate produced by the petitioner, submitted that the belts supplied by the petitioner did not complete two years period and therefore, the petitioner failed to satisfy the PQR-2. It is also claimed by the 1st respondent that pre-qualification requirements fixed in the tender conditions cannot be challenged by the petitioner as the same was fixed by the experts by taking into consideration various factors under requirements of the Tender Inviting Authority. It is also claimed by the 1st respondent that if the petitioner was really aggrieved by the PQR-2 mentioned in the tender conditions, it should have challenged the same earlier at appropriate time and petitioner is not entitled to challenge the PQR-2 after participating in the tender and suffered an order of rejection. It is also stated by the learned counsel appearing for the 1st respondent that the petitioner had knowledge of the rejection order as early as 01.07.2024, when the rejection order was uploaded in the online portal. The learned counsel also referred to the communication of the 1st respondent addressed to the petitioner dated 19.09.2024 wherein, a detailed response was given to the petitioner with regard to disqualification.6/15 https://www.mhc.tn.gov.in/judis W.P.No.36078 of 20245. The Pre-Qualification Requirements-2 in the tender conditions reads as follows:-Factor No.Pre Qualification Requirement factorsSellers Response2PQR-2: The bidder should have manufactured and supplied steel cord belts of 1800 mm or higher width and ST2250 or higher strength for a minimum length of 10% of tender qty. At least 400 mtrs of belt, having 1800 mm or higher width and ST2250 or higher strength, manufactured and supplied by the bidder, should have worked satisfactorily for a minimum period of two years or 10,000 hours as on the original scheduled date of opening of the first cover. The said 400 meters of belts should have been used for carrying over burden / Mineral / Coal / Lignite. The bidder should have their own vulcanizing press for the manufacture of steel cord belt of 2000 mm or higher width. Note: The bidders who have supplied steel cord belts as above previously to NLCIL should also satisfy the POR-1 & 2 conditions and will be qualified based on the performance with NLCIL. However, they should give references of previous supplies to NLCIL. Yes / No3Documentary Evidence for Manufacturing: Copy of certificates issued by Bureau of Indian Standard (BIS) or National Small Industries Corporation Ltd. (NSIC) or Small Scale Industries Ltd. (SSI) or Udyam Registration certificate or any accredited agency for International Standard Organization (ISO) or Excise Invoice duly attested by Notary Public valid as on original scheduled date of tender opening and certificate for having vulcanizing press on their own for manufacture of steel cord belt of 2400 mm or higher width issued by Notary / Chartered Accountant (CA)/Chartered Engineer (CE) shall be furnished. Documentary Evidence for Supplying: Documentary evidences such as copies of purchase order(s), material acceptance/completion report and performance certificate with clear indication of the material conveyed through the supplied belt (type of material) from the end user of the belt.Yes / No7/15 https://www.mhc.tn.gov.in/judis W.P.No.36078 of 20246. Therefore, it is clear that all the participating bidders should have manufactured and supplied steel cord belts with 1800mm or higher width and atleast 400 meters of such belt supplied by the bidder, should have worked satisfactorily for a minimum period of two years or 10,000 hours as on the original scheduled date of opening of the first cover. It is also clear that the bidders shall submit documentary evidence for supplying specified steel belts along with Performance Certificate with clear indication of the material conveyed from the end user of the belt. 7. At the time of participation in the tender, the petitioner was aware of the above mentioned PQR-2 conditions. The incorporation of the same in the tender conditions has not been questioned by the petitioner. Knowing fully well what is the Pre-Qualification Requirements as per the tender conditions, the petitioner participated in the tender by submitting its bid. A perusal of the Performance Certificate submitted by the petitioner would indicate that it supplied 600 mts. of 1800mm wide ST2250 Steel Cord Belt to the 1st respondent under Purchased Order No.20-21/004733 dated 08.01.2021 and the same was installed in the mines of the 1st respondent from 22.09.2021 to 13.02.2023. Therefore, it is clear that the Performance 8/15 https://www.mhc.tn.gov.in/judis W.P.No.36078 of 2024Certificate produced by the petitioner only indicate the specified steel cord belt supplied by the petitioner performed satisfactorily for nearly 17 months (22.09.2021 to 13.02.2023). Even assuming it was taken that satisfactory performance continued upto date of issue of certificate (i.e., 26.04.2023), it can only prove satisfactory performance for 19 months less than required time of two years. Therefore, the Performance Certificate submitted by the petitioner is not satisfying the PQR-2 mentioned in the tender conditions. It was forcefully argued by the learned counsel appearing for the petitioner that after date of Performance Certificate till the date of submission of the bid by the petitioner, there was no communication from the 1st respondent regarding the non-satisfactory performance of belts supplied by the petitioner and therefore, it shall be presumed that it performed satisfactorily upto the submission of the bid. 8. As per the Tender Conditions, the petitioner is expected to produce Performance Certificate from the end user. In the case on hand, the petitioner failed to produce the Performance Certificate for minimum required time. The Certificate produced by the petitioner only talks about satisfactory performance for 17 months. In the case on hand, the end user is 9/15 https://www.mhc.tn.gov.in/judis W.P.No.36078 of 2024also happens to be the Tender Inviting Authority. Therefore, the learned counsel appearing for the petitioner submitted that failure of the petitioner in producing Performance Certificate for required length of time may not be put against the petitioner.9. The 1st respondent in his counter affidavit clearly averred that the belts supplied by the petitioner did not complete the performance of the minimum period of two years or 10,000 hours as on the original scheduled date of opening of the first cover. Infact, the learned counsel appearing for the 1st respondent relied on the communication of the 1st respondent dated 19.09.2024 to the petitioner wherein a reply was given by the 1st respondent to the petitioner's query regarding the performance of the steel cord belts supplied by the petitioner. 10. The petitioner in its email communication dated 17.09.2024 enclosed in Page No.89 of the typed-set of papers mentioned about the length of performance of steel cord belts supplied by the petitioner, the relevant portion of the e-mail reads as follows:-“The above fact raises the doubt in our minds that a 10/15 https://www.mhc.tn.gov.in/judis W.P.No.36078 of 2024deliberate attempt is being made from NLC India Limited to get NRC Industries Limited disqualified in the subject tender with a mala fide motive.We therefore request you to furnish us details of the conveyor number, machine number length of belt installed respectively on the conveyor / machines, date of installation, date of removal and number of hours run.Once we have the above information, transparency can be established without a shadow of doubt whether NRC's belts of a quantity of 400 metres performed for 2 years or 10000 hours or not.In the absence of the above information we tend to disagree with your claim that NRC's belt of quantity of 400 metres did not perform for the abovesaid period.”11. In response to the above email query by the petitioner, the 1st respondent sent a letter on 19.09.2024 wherein, the details of the performance of belts supplied by the petitioner were mentioned. 12. Hence, it is clear that the 1st respondent informed the petitioner that the steel cord belts supplied by the petitioner have not met the PQR Requirement of running for more than 2 years as early as 19.09.2024. As per 11/15 https://www.mhc.tn.gov.in/judis W.P.No.36078 of 2024the tender conditions, the petitioner is required to produce Performance Certificate for minimum period of two years from the end user. In the case on hand, as mentioned earlier, the petitioner failed to produce the Performance Certificate from end user for the minimum required time of two years. In the case on hand, the end user to whom the petitioner supplied steel belts is also the Tender Inviting Authority. In its communication dated 19.09.2024, the 1st respondent clearly conveyed to the petitioner that steel cord belts supplied by the petitioner did not work for more than 2 years and hence, PQR-2 are not met. 13. In these circumstances, the petitioner failed to show any materials that it fulfilled PQR-2 requirements mentioned in the tender conditions. If the petitioner feels the PQR-2 requirements are arbitrary, it should have challenged the tender conditions, immediately after publication of tender notice by the 1st respondent. The petitioner participated in the tender by submitting its bids without any murmur and suddenly, turned around and filed this writ petition after rejection of its bid. Therefore, it is not open to the petitioner to challenge the PQR requirements at this distant time. Even at the time of submitting its bid, the petitioner was very well 12/15 https://www.mhc.tn.gov.in/judis W.P.No.36078 of 2024aware that it was not having required performance certificate for two years. The petitioner could have made a request to the 1st respondent to issue Performance Certificate even before submission of the bid or approached this Court with necessary prayers. Only after rejection of its bid for failure to fulfil the PQR-2 requirements, the petitioner has filed this writ petition by making a request to the Court to assume that the petitioner's belts satisfactorily performed for minimum required length of two years. In the absence of any concrete material to support the claim of the petitioner that steel cord belts supplied by it performed for more than two years, this Court is not inclined to interfere with the impugned rejection order passed by the 1st respondent.14. Accordingly, the Writ Petition stands dismissed. No costs. Consequently, the connected writ miscellaneous petitions are closed.06.01.2025Index : YesSpeaking order:YesNeutral Citation:Yesdm13/15 https://www.mhc.tn.gov.in/judis W.P.No.36078 of 2024To1.The Chief General Manager/Executive Director Mines NLC India Limited Having its registered office at: No. 135, EVR Periyar High Road, Kilpauk, Chennai – 600010, Tamil Nadu, India and Administrative Office at Mine I & IA, Block – 26 Neyveli – 607 803. Cuddalore District, Tamilnadu State. Mobile: 04142-252419 Email:[email protected] 2.The Secretary, Union of India Ministry of Coal Having its registered office at: A-wing, Ministry of Coal, Shastri Bhawan, Dr. Rajender Prasad Marg, New Delhi – 110001 Mobile: 011-23384884 Email:[email protected] E-Marketplace of India Address: 2nd Floor, Jeevan Tara Building, 5-Sansad Marg, Near Patel Chowk, New Delhi – 110001 Phone: 1800-419-3436 & 1800-102-3436 Email: [email protected]/15 https://www.mhc.tn.gov.in/judis W.P.No.36078 of 2024S.SOUNTHAR, J.dmW.P.No.36078 of 202406.01.202515/15