(Per : HONOURABLE MR.JUSTICE G.B.SHAH)
1. This Special Civil Application has been filed by the petitioner on 20.1.2012 challenging the order dated 17.1.2012 passed by respondent No.2 whereby the technical bid submitted by the petitioner has been rejected. It is averred by the petitioner that he has been ousted from the technical bid in an arbitrary manner to favour respondent No.4 by raising clarification on eligibility criteria in the technical bid and though the same was clarified by supplying necessary documents and in spite of the fact that the petitioner is lowest bidder, it has been ousted in an arbitrary manner and hence it has approached this Court by way of this petition.
2. In para 9 (A) of the petition the petitioner has mainly sought prayer to quash and set aside the order dated 17.1.2012 at Annexure 'A' passed by respondent No.2 rejecting the technical bid submitted by the petitioner.
2.1. On 23.1.2012 notice was issued by this Court, making it returnable on 6.2.2012. On 6.3.2012, learned counsel for the respondents have jointly made a statement that the contract has been awarded to respondent No.4 by agreement dated 4.2.2012. On 13.3.2012 the draft amendment filed by the petitioner has been allowed. By the above amendment, the petitioner has added para 4.17 and grounds 5 (k) and
(l) along with prayer 9(CC) and 9(CCC). Prayer 9(CC) and 9(CCC) reads as under:
"9(CC) Your Lordships may be pleased to quash and set aside the act of the respondent No.2/3 of awarding of the contract to respondent No.4 by entering into an agreement dated 4.2.2012, as the respondent No.4 was not eligible as well as holding that undue favour has been shown towards respondent No.4 by respondent Nos. 1 to 3 by relaxing the eligibility criteria.
(9CCC) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondent Nos. 1 to 4 not to further act upon the agreement dated 4.2.2012 executed between respondent No.2/3 and respondent No.4, awarding the contract in favour of respondent No.4."
3. Learned counsel Mr Ramnandan Singh has vehemently submitted that respondents No.1 to 3 have shown utter disregard to the notice issued by this Court and without even informing this Court that they are going to award contract to respondent No.4, entered into an agreement with respondent No.4 on 4.2.2012. Further, it is submitted that the respondent No.4 was not having required eligibility criteria as OEM. As per the eligibility criteria, 'OEM should have supplied and supported at least two orders, not less than 5 weighbridges at any location/office across the country within last 3 years in a single order'. In the present case the respondent was not fulfilling this criteria and the respondent had supplied the documents, viz. one by IOC dated 25.4.2011, another by Mundra Port and Special Zone Economic Ltd. vide purchase order No. PURC/F/005 dated 21.8.2010, and another purchase order by Adani Hazira Port Pvt. Ltd. Dated 23.8.2010. In any of the contract, as per the tender document, there should not have been less than 5 weighbridges in any location. So far as IOC purchasing document is concerned, the order is for 6 weighbridges. So far as other purchase orders are concerned, there is no purchase orders showing 5 weighbridges at any location/office across the country. Whereas the respondent No.4 failed to fulfil the criteria for purchase order of any company having 5 weighbridges in one location/office. Thus, in the eligibility criteria of technical bid, the respondent No.4 failed to qualify the requirement for having two orders of not less than 5 weighbridges. This is nothing but favour to the respondent No.4 directly in spite of the fact that it was not fulfilling the criteria for technical bid. The respondent Corporation cannot give relaxation in what is required as per the tender conditions and qualifications. On this ground alone, the respondent Corporation could not award the contract to respondent No.4.
3.1. Then the learned counsel for the petitioner, drawing our attention to letter dated 1.12.2011 written by respondent No.2, (Annexure 'F'), submitted that change of schedule, though not permissible under the tender terms and conditions, respondent No.2 has deliberately rescheduled the same with ulterior motive and with a view to oust the present petitioner.
3.2. Though the clarification letters by way of reply to letter dated 1.12.2011 Annexure 'G' were forwarded on 3.12.2011 (Annexure 'H') and on 5.12.2011, (Annexure 'I') respectively, the same have not been taken into consideration in its true spirit and the same have been discarded with a view to favour respondent No.4.
3.3. Though the technical bid of the petitioner was rejected on 17.1.2012, the financial bid should not have been opened but it has opened on the same day and time and it is surprising that much prior to that i.e. on 13.1.2012, respondent No.1 has filed caveat (Annexure 'K' page
120) against the petitioner and this conduct of the respondents shows that they are 'hands-in-glove' with each other in favouring respondent No.4.
4. Learned Advocate General appearing with Ms Sangeeta Vishen, Assistant Government Pleader for respondents No.1 and 3 and learned Senior Counsel Mr K M Patel for respondent No.2 have drawn our attention to the affidavit-in-reply dated 26.3.2012 filed on behalf of respondent No.2 and the affidavit-in-reply filed on behalf of respondent No.3 dated 18.4.2012 and submitted that respondents No. 1 to 3 have very clearly and in detail shown the reasons as to why the technical bid of the petitioner was required to be rejected and in support of the said contention, respondents No.1 to 3 have also furnished documentary evidence for the same. They have read over and drawn our attention to the said affidavits-in-reply and further submitted that the said affidavits-in-reply be considered as their oral submissions also. We have carefully perused the same.
4.1. It is contended by Respondents No.1 to 3 that with a view to overcome various difficulties and to save time, State of Gujarat had brought the advance system of automatic weighment of goods contained in the vehicles, by allotting the contract to private company by way of tender which was being implemented by the State since 2001. The contract period of earlier vendor was put to an end and therefore, respondent No.1 decided to select a new vendor by way of tendering process to allot contract for performing the aforesaid work at the check posts. Respondent No.1 has also appointed respondent No.2 i.e. Gujarat Info Petro Ltd. (hereinafter referred to as 'the GIPL") as its nodal agency for undertaking the process to prepare the tender documents to float tender, to accept bids, to scrutinize the bids, to assist respondent No.3 by use of its expertise in the process of evaluation of the bids and all other relevant aspects in the whole tendering process. Before the present e-Tender Notice dated 21.10.2011, for the same requirement, a Tender Notice was published on 01.11.2010 in newspapers having vide publication and the said tendering process was challenged by filing petition being Special Civil Application No. 2401 of 2011 and ultimately it was decided to cancel the said tender notice and, therefore, on 16.9.2011 the High Court has disposed of the said petition. Ultimately the present revised tender No. GIPL/COT/REVWBG/2011/3 for delivery, installation and maintenance of pitless electronic weighbridges at RTO check-posts of Gujarat came to be floated on n-procure website through e-tendering process on 21.10.2011 as well through publication of the notice in that behalf in the Gujarati daily newspaper. It is not in dispute that only two bidders i.e. the present petitioner and respondent No.4 have participated in the said tendering process.
4.2. It is also contended that the preliminary bids of both the parties were opened on-line on 22.11.2011 at 3.30 pm. Their technical bids were opened on 22.11.2011 at 3.35 p.m. During the period from 22.11.2011 to 1.12.2011 GIPL conducted preliminary scrutiny of the bids submitted by the above mentioned bidders. There were certain points regarding eligibility criteria which needed detailed technical scrutiny for which respondent No.3 formed a formal committee on 2.12.2011 as per the provisions contained in clause 3.5.2 of the tender documents. During the technical evaluation process, minor discrepancies were noticed in the bid documents of respondent No.4 related to the purchase orders whereas major discrepancies were noted in the bid documents submitted by the petitioner and therefore, clarifications were sought from respondent No.4 as well as the petitioner. So far as the clarification sought from respondent No.4 with regard to the query of purchase orders wherein it had supplied and supported at least two orders for not less than five weighbridges at any location across the country within last three years in a single order is concerned, respondent No. 4 had produced one order of IOC as even admitted by the petitioner and second order was of Mundra Port and Special Economic Zone Limited wherein letter of the said company of Adani dated 21.8.2010 was provided by respondent No.4, copy of which is annexed as Annexure-R 4 at page No.222 which clarifies that it was a single purchase order and, therefore, the allegation of the petitioner company that respondent No.4 did not fulfil the said criteria is misconceived is the submissions made by the learned counsel for the respondents. We have considered the letter dated 21.8.2010 at Annexure R-4 page No. 222 and in our view, it cannot be said that respondent No.4 has not fulfilled the required criteria while filling up the e-tender in question. Thus it has substantially come on the record that respondent No.4 has qualified and fulfilled the requirement for having supplied two orders of not less than 4 weighbridges within the stipulated period. In our view much have been argued by the learned counsel for the petitioner on the above requirement but in our view the petitioner has miserably failed to prove the same. In our view the entire submission on this point referred above in para 3 is misconceived. We are of the considered view that equal opportunity for clarification to the petitioner as well as to respondent No.4 had been given by GIPL and respondent No.4 has rightly convinced the GIPL by furnishing the documents at Annexure R-4.
5. The letter seeking clarification sought by the present petitioner is at Annexure 'G' (page 97) dated 1.12.2011. Learned counsel for the petitioner has drawn our attention to Annexure 'H' at page No.99 and the document annexed with the same as well as page No.112 at Annexure 'I' and vehemently submitted that in spite of the fact that cogent and convincing clarification has been given by the petitioner, the same has not been considered.
5.1. It is not in dispute that there are certain eligibility criteria in the e-tendering process. It is also mandatory to upload all the documents which qualify any bidder on the n-procure website. But in case of the petitioner, only three documents were uploaded viz. CST copy, GST copy and ISO certificate and other documents have not been uploaded on n-procure website. In the clarification sought, the petitioner has mentioned size and time constraint as the reasons for not uploading the documents on the e-tendering website, which cannot be considered as valid reasons according to the respondent No.3. The eligibility criterion contained in sub-point 5 of Point 1 of clause 3.3 of the tender document requires submission of at least 2 purchase orders of 5 nos. weighbridges in a single order of Original Equipment Manufacturer (OEM) within last three years. However, the petitioner has submitted Purchase Order of his own company and not of its OEM i.e. M/s. ESIT. The eligibility criterion contained in sub-point 1 of point 2 of clause 3.3 of the tender documents requires furnishing of a self-certified letter showing that the petitioner is in the business of weighbridge at least for a period of five years. However, the petitioner has neither supplied such letter nor supplied the details to show that it has been in the business of weighbridges at least for a period of last 5 years. From the Balance Sheets submitted by the petitioner, it is clear that the petitioner has been incorporated since last 3 years, only in 2008, against the requirement of 5 years. The petitioner has never disclosed its erstwhile status of a proprietory concern during the tendering process. The eligibility criterion contained in sub-point 4 of point 2 of clause 3.3 of the tender documents requires the bidder to submit an authorisation letter from OEM suggesting that OEM has appointed the bidder as its Authorised Dealer and OEM should also confirm the status of its relationship with the Authorised Dealer. The petitioner did not supply such authorization letter initially, but later on when asked, provided it on 2.12.2011 which is signed on behalf of M/s. ESIT and at the outset states that, 'we hereby appoint', without specifying the requisite period as well as status of relationship. Thus it is clear that the petitioner came to be appointed as Authorised Dealer only on 2.12.2011 and it was not an Authorised Dealer on 22.11.2011 when the bid was submitted.
Copy of the said certificate dated 2.12.2011 is annexed at page No.415. The next eligibility criterion contained in sub-point 6 of point 2 of clause 3.3 of the tender documents requires to provide a list of 30 employees on the pay roll of the bidder, who should either be B.E. Or Diploma Holders in Mechanical subjects. Against this, the petitioner has submitted a list of 30 employees, majority of whom are ITI passed without there being any employee having Bachelor degree or Diploma in Mechanical subjects. On asking clarification, they provided information that they have around 360 people working in different departments out of which 13 employees have Bachelors Degree in Mechanical and Metallurgical subjects, 3 employees are with Bachelor's degree in civil Engineering whereas 15 employees are with Bachelors degree in Electrical, Electronic and Instrumentation and they have not provided list of these employees as required by the tender documents. Comparison between the aforesaid list and the clarification given by the petitioner reveals apparent contradiction between the information initially provided by the petitioner and the information later on provided in the clarification. Thus the petitioner did not fulfil any of the aforesaid eligibility criteria as laid down in the tender documents. Accordingly after detailed scrutiny, the Committee submitted its report on 21.12.2011 to respondent No.2 wherein it was specified that the petitioner is technically disqualified whereas respondent No.4 was found to be technically qualified. In view of the above developments, on 16.1.2012, respondent No.3 requested GIPL to proceed with opening of the financial bid on 17.1.2012 pursuant to the report of the committee. Accordingly vide its communication dated 17.1.2012 the petitioner was informed that it has not been selected in the technical evaluation.
6. It has been argued by the learned counsel for the petitioner that as per the terms and conditions of the tender, change of schedule is not permissible but the same was deliberately rescheduled by respondent No.2 to oust the petitioner from the tender. The relevant portion of condition (d) 'Reserve Rights of COT' of Chapter II : Invitation for proposal is extracted as under:
"...To assist in the evaluation, comparison and an examination of bids, COT, may, at its sole discretion, ask the Bidder for a clarification of its bid including breakdown of unit rates etc. The request for clarification and the response shall be in writing. If the response to the clarification is not received before the expiration of deadline prescribed in the request, COT, reserves the right to make its own reasonable assumptions and take appropriate decision.
COT reserves the right to modify/change the dates of Bid opening/submission/technical presentation at its own discretion and these changes shall be binding on the bidders."
6.1. Referring the above condition of the Tender it is clear that COT has reserved the rights to change the date of Bid opening. We are of the view that merely because date of opening of the price bids are rescheduled due to the on going scrutiny of the bids, it is not permissible to the petitioner to attach any ill-motive behind the same as has been canvassed by the learned counsel for the petitioner.
7. Much has been argued by the learned counsel for the petitioner as referred earlier in para 3.3 of this order that though technical bid of the petitioner was rejected on 17.1.2012, the financial bid should not have been opened on the same day and time and much prior to that i.e. on 13.1.2012 respondent No.1 has filed caveat. We have perused the said caveat dated 13.1.2012 at Annexure 'K' at page No.120. Referring the cause title, it is clear that the caveat was filed against the petitioner as well as respondent No.4. Because the caveat was filed, it cannot be said that conduct of the respondent shows that they are 'hands-in-glove' with each other in favouring respondent No.4. Though the technical bid of the petitioner was rejected on 17.1.2012 and simultaneously the financial bid was also opened on the same day, it makes no difference because in the case on hand only two bidders have participated in the bid process and so on rejection of one technical bid, the financial bid was opened. To us there appears nothing mala fide in it more particularly in view of the above referred irregularities and lacunae committed by the petitioner in filling up e-tender on n-procure website.
7.1. It has also been argued by the learned counsel for the petitioner that in spite of the show cause notice issued by this court on 23.1.2012 making it returnable on 6.2.2012, respondents No.1 to 3 without even informing this Court awarded contract on 4.2.2012 to respondent No.4 and this conduct of the respondents also shows ill-motive on the part of them. It is the fact that this court has issued Notice but no stay was granted and accordingly during the pendency of the proceedings, if the respondents have entered into the agreement with respondent No.4, we do not find any ill-motive in the same more particularly when no stay was in existence and also the technical bid of the petitioner was disqualified.
8. At this juncture, it is important to note that learned counsel for the respondent No.4 submitted that respondent No. 4 has already started functioning under the agreement/contract awarded to it whereby number of weighbridges have already been dismantled and new weighbridges are in the process of being installed and he requested not to entertain the present petition.
9. Learned counsel for the petitioner has placed reliance on a decision in the case of
(a) Reliance Energy Ltd. And Anr v. Maharashtra State Road Development Corprn.Ltd. And Others [(2007) 8 SCC page
1.] Para 36 of the said decision reads as under:
"36.
We find merit in this civil appeal. Standards applied by courts in judicial review must be justified by constitutional principles which govern the proper exercise of public power in a democracy. Article 14 of the Constitution embodies the principle of "non-discrimination". However, it is not a freestanding provision. It has to be read in conjunction with rights conferred by other articles like Article 21 of the Constitution. The said Article 21 refers to "right to life". It includes "opportunity". In our view, as held in the latest judgment of the Constitution Bench of nine-Judges in I.R. Coelho vs. State of Tamil Nadu (2007) 2 SCC 1, Article 21/14 are the heart of the chapter on fundamental rights. They cover various aspects of life. "Level playing field" is an important concept while construing Article 19(1)(g) of the Constitution. It is this doctrine which is invoked by REL/HDEC in the present case. When Article 19(1)(g) confers fundamental right to carry on business to a company, it is entitled to invoke the said doctrine of "level playing field". We may clarify that this doctrine is, however, subject to public interest. In the world of globalization, competition is an important factor to be kept in mind. The doctrine of "level playing field" is an important doctrine which is embodied in Article 19(1)(g) of the Constitution. This is because the said doctrine provides space within which equally-placed competitors are allowed to bid so as to subserve the larger public interest. "Globalization", in essence, is liberalization of trade. Today India has dismantled licence-raj. The economic reforms introduced after 1992 have brought in the concept of "globalization". Decisions or acts which results in unequal and discriminatory treatment, would violate the doctrine of "level playing field" embodied in Article 19(1)(g). Time has come, therefore, to say that Article 14 which refers to the principle of "equality" should not be read as a stand alone item but it should be read in conjunction with Article 21 which embodies several aspects of life. There is one more aspect which needs to be mentioned in the matter of implementation of the aforestated doctrine of "level playing field". According to Lord Goldsmith, commitment to "rule of law" is the heart of parliamentary democracy. One of the important elements of the "rule of law" is legal certainty. Article 14 applies to government policies and if the policy or act of the government, even in contractual matters, fails to satisfy the test of "reasonableness", then such an act or decision would be unconstitutional."
9.1. So far as the doctrine "level playing field" discussed in the above referred para is concerned, we are in complete agreement with the same and considering the above discussed submissions made by the learned counsel for the parties, we are of the view that in the case on hand, the respondents have not failed to satisfy test of reasonableness and so in our view the action and decision taken by the respondents No.1 to 3 does not appear to be unconstitutional. In our considered view, no unequal or discriminatory treatment has been meted out by respondents No.1 to 3 to the present petitioner.
(b) Learned Advocate General has placed reliance on a decision in the case of Jagdish Mandal v. State of Orissa and Others (2007) 14 SCC 517. relevant paras 22 and 28 of the same reads as under:
"22.
Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions :
i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone.
OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say : 'the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached.'
ii) Whether public interest is affected.
If the answers are in the negative, there should be no interference under Article 226. Cases involving black-listing or imposition of penal consequences on a tenderer/contractor or distribution of state largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action."
"28.
The limited scope of judicial review by the High Court envisaged examination of the question whether there was any material irregularity in the decision making process or whether the decision of the Committee and consequential rejection of fifth respondent's tender was irrational, unreasonable or arbitrary. The validity of the decision of the Committee taken on the material available at the time of consideration of tenders, cannot be tested with reference to a subsequent police enquiry report submitted in the writ proceedings. Nor can it be held that the Committee acted arbitrarily in not accepting the passbook, on the basis of some report opining that the TD passbook is genuine. The High Court was not sitting in appeal over the decision of the Committee. The High Court could not, therefore, by relying on a subsequent police enquiry report, the correctness of which is yet to be established, hold that the Tender Committee was wrong in rejecting the TD passbook. Further, the High Court missed the issue. The question for consideration was not whether the TD passbook pledged by the fifth respondent is genuine or not. The question for consideration was whether the committee acted arbitrarily or irrationally in rejecting the said TD passbook."
9.2. Considering the above referred facts forthcoming on the record, the process adopted and the decision taken by respondents No.1 to 3, in our view appears not mala fide and appears to be not intended to favour respondent No.4 and it also does not appear arbitrary or irrational.
10. Considering the above referred facts forthcoming on the record, in our considered view, the petitioner has failed to fulfil the alleged criteria as mentioned hereinabove on account of which the petitioner has been rightly technically disqualified. We are of the considered view that the action on the part of respondent No.3 is not proved to be arbitrary, irrational, mala fide or intended to favour respondent No.4 as alleged by the petitioner. Under the circumstances, the present petition deserves to be dismissed and it is accordingly dismissed. Notice is discharged with no order as to costs.
[D H WAGHELA, J.] [G B SHAH, J.] msp Top