IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 2ND DAY OF AUGUST, 2018 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.5608 OF 2018 (GM-TEN) C/W WRIT PETITION NOS.5491 OF 2018 & 5610 OF 2018 (GM-TEN) IN W.P.NO.5608/2018 BETWEEN Chamundi Motors, A Partnership firm constituted and registered under the Indian Partnership Act running the business in dealership of PIAGGIO vehicles, having registered office at No.225/2, near 10th BTS bus depot, 2nd main road, Vrindavananagar, HBR Layout, Bengaluru – 560043.
Represented by its authorized partner, Mr. N. Hemanth Kumar …..Petitioner (By Sri.Ashok Harnahalli, Senior Advocate for Sri. Nityanand V. Naik, Adv for Sri. Prakash M. Patil Advocate) AND 1. The Principal Secretary to the Government of Karnataka, Urban Development Department, Vikasa Soudha, Bengaluru– 560 001.
2. The Commissioner, Bruhath Bengaluru Mahanagara Palike Hudson Circle, Bengaluru – 560 002.
3. The Special Commissioner (SWM) Bruhath Bengaluru Mahanagarpalike, Hudson Circle, Bengaluru – 560 002.
4. The Joint Commissioner (Health & MSW) Office of the Joint Commissioner, BBMP Head Office, N.R. Square Bengaluru – 560 002.
5. The Executive Engineer-3 Solid Waste Management, Bruhath Bengaluru Mahanagara Palike, Office of the Executive Engineer, Solid Waste Management-1 2nd Floor, Dasappa Hospital Premises, N.R.Road, Bengaluru – 560 002. ...Respondents (By Sri.Vijaya Kumar Patil, AGA for R1 Sri. N.R. Jagadeeshwara, Adv. for R2-R5 Sri. K.N. Puttegowda, Adv. for R2-R5) This Writ Petition is filed under Article 226 of the Constitution of India praying to direct 2nd respondent and 5th respondent-Corporation to permit the petitioner to participate in the tender process by forming a consortium with a financially sound party and having experience and expertise in the field of collection and transportation of Municipal Solid Waste in response to the tender notification dated 04.01.2018 issued by 3rd respondent vide Annexure-C etc., IN W.P.NO.5491/2018 BETWEEN Sri. C.R. Veeranarayana Chary S/o Late K. Ramachary Aged about 66 years No.705, Sri. Veerabrahma Krupa 5th Cross, Upkar Residency Layout Vishwaneedam Post Bengaluru - 560 091. …..Petitioner (By Sri. Ashok Harnahalli, Senior Advocate for Sri. Varun T. Patil, Advocate for petitioner) AND 1. The State of Karnataka Represented by Principal Secretary Urban Development Department Vikasa Soudha Bengaluru – 560 001.
2. The Commissioner Bruhath Bengaluru Mahanagara Palike N.R. Square Bengaluru – 560 002.
3. The Joint Commissioner(Health and MSW) Bruhath Bengaluru Mahanagara Palike N.R. Square Bengaluru – 560 002.
4. The Executive Engineer 3, SWM-1 Bruhath Bengaluru Mahanagara Palike 2nd Floor, Dasappa Hospital Premises N.R. Square Bengaluru – 560 002. ...Respondents (By Sri. Vijaya Kumar Patil AGA for R1 Sri. N.R. Jagadeeshwara, Advocate for R2 to R4) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to direct the respondent No.3 to extend the time to submit the bids as per the provisions of the Karnataka Transparency in Public Procurement Rules 2000 etc., IN W.P.NO.5610/2018 BETWEEN Smt. P.Kavitha, W/o P.Gopinatha Reddy, Aged about 51 years, R/o No.6, 1st B Cross, Behind Sandhya Cinema Tent, Old Madiwala, Bengaluru – 560068. …..Petitioner (By Sri.Ashok Harnahalli, Senior Advocate for Sri. Prakash M. Patil Advocate) AND 1. The Principal Secretary to the Government of Karnataka, Urban Development Department, Vikasa Soudha, Bengaluru – 560001.
2. The Commissioner, Bruhath Bengaluru Mahanagara Palike, Hudson Circle, Bengaluru – 560002.
3. The Special Commissioner (SWM) Bruhath Bengaluru Mahanagara Palike, Hudson Circle, Bengaluru – 560002.
4. The Joint Commissioner (Health & MSW) Office of the Joint Commissioner, BBMP Head Office, N.R. Square, Bengaluru – 560002.
5. The Executive Engineer-3, Solid Waste Management, Bruhath Bengaluru Mahanagara Palike, Office of the Executive Engineer, Solid Waste Management-1, 2nd Floor, Dasappa Hospital Premises, N.R. Road, Bengaluru – 560002. ... Respondents (By Sri.Vijaya Kumar Patil, AGA for R1 Sri. N.R. Jagadeeshwara, Adv. for R2-R5) This Writ Petition is filed under Article 226 of the Constitution of India praying to direct the 2nd respondent corporation to permit the petitioner to participate in the tender process by forming a consortium with the manufacturing company or the dealer in response to the tender notification dated 04.01.2018 issued by 3rd respondent vide Annexure-A.
These Writ Petitions coming on for “Dictating Judgment” this day, the Court made the following:
ORDER As per the Government Orders dated 21.06.2016 and 12.08.2016, BBMP had resolved to purchase auto tippers for collection of solid waste from different wards and micro plan was prepared ward-wise to collect the solid waste for two days in a week. For said purpose, it was resolved to purchase 555 numbers of auto tipper for the financial year 2016- 2017 and 2017-2018 for a sum of Rs.1530 lakhs for each year earmarked and as such during March 2007, BBMP being alive of perennial problems of Solid Waste Management was conscious of this fact and for the reason that financial year was coming to an end, it resolved to purchase 555 numbers of auto tipper (4 wheeler) at a time.
2. BBMP was also of the opinion that Tata Ace 2.0 cubic meter Box Tipper-B.S 4 model is an ideal vehicle since that was the only four wheeler vehicle as per B.S 4 norms available. Original records would also disclose that as on 01.03.2017, BBMP had called upon suppliers of Tata vehicles to quote their prices for supply of vehicle to BBMP and it was received by email as extracted in the note sheet dated 09.03.2017. At that point of time, BBMP resolved to bring in certain amendment to its requirements of vehicle. Accordingly, it was resolved to purchase 555 vehicles at a cost of Rs.28,45,47,945/- and evaluation charges to be paid to such agency, who undertakes such evaluation at the rate of 0.15% + 12.36% service tax, in all for a sum of Rs.3,49,435/-. Thus, total cost for purchase of said vehicles was Rs.28,48,97,380/-, was sought to be utilized from the funds of SFC grant of Rs.30,60,00,000/- for which approval was sought for from the appropriate Government.
3. Said proposal being forwarded to the appropriate Government, by communication dated 26.04.2017 from appropriate Government to BBMP, the letter relating to latest DGS & D was called for. At that juncture, a Technical Committee for Special Infrastructure Grants–Solid Waste Management of BBMP had met and discussed with regard to technical details and specifications and accordingly, resolved to call for the tender by specifying the technical details and in this background, it came to be resolved to call for tender for Tata Ace Cabin Load Body B.S 4 model vehicle (4 wheeler) with necessary modifications with regard to constructing the body of vehicles. It was found that four wheeler B.S 4 vehicle i.e. Tata Ace Cabin Load vehicle is the only vehicle which would suit the said specifications and accordingly, BBMP intimated manufacturers of Tata ACE Cabin Load BS4 vehicle to furnish price list and accordingly, price list has been furnished. According to same, the total cost of 565 numbers of auto tipper was indicated as Rs.28,13,43,092/- and in this background, proposal was put up for approval of purchase of 565 auto tipper vehicles from M/s Tata Motors Ltd., at a total cost of Rs.28,10,47,950/- plus evaluation charges from third party agency at a cost of Rs.2,95,142/- and permission was sought for to utilize the sum of Rs.30,60,00,000/- received under the grants referred herein supra subject to other modifications with regard to body building of the vehicle, fixing of sound system, by dispensing with a period prescribed under The Karnataka Transparency in Public Procurements Act, 1999 or in other words to call for short term tender by putting up a note to the Assistant Executive Engineer-Solid Waste Management and Environmental Engineer. Same has been approved by Executive Engineer on 21.07.2017, by Chief Engineer on 26.07.2017 and Joint Commissioner as well as Commissioner of BBMP have also approved the same on 21.07.2017 and 26.07.2017 respectively. The said proposal has been forwarded to the appropriate Government for its approval by BBMP on 26.07.2017 and the appropriate Government by its communication dated 15.09.2017 had resolved as under:-
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4. The appropriate Government by communication dated 06.11.2017 addressed to Commissioner-BBMP, after referring to its earlier communications, discussions and taking into consideration the requirements of BBMP to purchase auto tippers (4 wheeler) under the DGS&D rates came to be examined and directed the Commissioner to re-examine the issue. The direction so issued by the appropriate Government reads as under:-
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5. BBMP instead of taking further steps in this matter to obtain approval from the appropriate Government, has taken a complete detour. In other words, it has completely ignored the directions issued by the appropriate Government and has resolved to tread its own path. Inspite of having referred to the direction issued by appropriate Government dated 06.11.2017, at all places including note sheet and the technical approval report by order dated 04.01.2018, Chief Engineer-Solid Waste Management-I, BBMP has passed an order giving technical approval for release of Rs.36,40,00,000/- under the heading “Technical Approval” for purchase of 565 numbers of auto (4 wheeler). Pursuant to the same and in anticipation of approval from the appropriate Government, short term tender notice i.e. with 15 days notice, tender was called for, which note again has been put up by the Assistant Executive Engineer–Solid Waste Management, Environmental Engineer-Solid Waste Management and approved by Executive Engineer, Chief Engineer, Joint Commissioner and Commissioner of BBMP on 28.12.2017 and thereafter, tender process has been set in motion and accordingly, the subject tender has been called for, namely, tender notification dated 04.01.2018 Annexure-A came to be issued. Questioning the said tender notification, petitioners are before this Court.
6. I have heard the arguments of Sri. Ashok Harnahalli, learned Senior Counsel appearing for the petitioners, Sri. K.N.Puttegowda, learned counsel appearing for respondent-BBMP and Sri.N.R.Jagadeeshwara, learned counsel also appearing for the respondent-BBMP and Sri. Vijaya Kumar Patil, learned Additional Government Advocate appearing for the State and perused the original records as noticed herein above.
7. The gist of arguments addressed by learned Advocates appearing for the petitioners is on three grounds:
(i) Tender Inviting Authority had already resolved to call for tender of the vehicles manufactured by M/s Tata Motors Ltd., only without specifying the name.
(ii) Conditions regarding supply of vehicles by issuing addendum specifying thereunder that the suppliers should have satisfactorily supplied minimum 170 numbers of four wheeler auto vehicles similar to the type specified in the Schedule of requirements as per tender or by incorporating to Government Department/Local Bodies in the last three years is an onerous condition and petitioners and other prospective bidders though have supplied vehicles to the contractor, who are now using the said vehicles for disposal of the solid waste at BBMP, such condition could not have been imposed on petitioners or in other words, the condition so stipulated is onerous insofar as petitioners are concerned since their vehicles being used by BBMP through the contractors are the same vehicles being manufactured and supplied by the petitioner in W.P.No.5608/2018.
(iii) Yet another ground, which has been raised by learned Senior counsel appearing for the petitioners is that there is no compliance of Rules 17(1) and 17(2) of The Karnataka Transparency in Public Procurements Rules, 2000 (herein after referred to as “Rules” for the sake of brevity) and any infraction thereof should be viewed seriously and as such, the tender notification called for should be quashed.
8. Per contra, Sri.K.N.Puttegowda, learned Counsel appearing for BBMP leading arguments on behalf of the respondent-BBMP has made available the original records and would submit that insofar as the condition imposed with regard to the bidders possessing the requisite capacity, capability, experience for having supplied 170 numbers of 4 wheeler or 3 wheeler auto vehicles to Government agency, is to ensure and to know the capability and genuineness of the bidders and it would not be possible for Notice Inviting Authority to ascertain from private parties to whom the auto tippers is said to have been supplied by petitioners and it would be difficult to ascertain the genuineness of said supplier or ascertain whether such vehicles was used for similar kind of works and as such contending, if the conditions are relaxed, it would amount to allowing the petitioners to participate in the tender without notifying others, who may also be intending to participate in the changed scenario.
9. He would also further contend that as to the technical details, which the Tender Inviting Authority may fix or impose would be in the domain of such Tender Inviting Authority and it is not for the bidders, who would participate in the bid to contend that specifications mentioned there under is to be varied or changed and experts would have gone into these aspects while floating the tender or prior to the floating of the tender and as such, neither the petitioners nor similarly placed persons can dictate terms on which Tender Inviting Authority is required to stipulate the conditions in tender.
10. He further contends that petitioners were aware that last date for submission of tender was 05.02.2018, since he had participated in pre-bid meeting wherein he did not raise any of the grounds now urged in the present petitions including the ground of alleged infraction of Rule 17 and he draws the attention of the Court to the proceedings of pre-
bid meeting produced along with statement of objections, which is also available in original records which was held in response to pre-bid queries raised by the petitioners as per Annexure-H. He would also further contend that since tender was through e- procurement and last date for receiving the tender in e-portal was 05.02.2018 at 5:00 p.m., question of opening or permitting the petitioners to submit their tender did not arise and as such, tender submitted by the petitioners physically on 12.02.2018, which was pursuant to the interim order granted on 06.02.2018 as well as on 12.02.2018 cannot be heard to contend that their bids were also required to be opened since similarly placed persons would be deprived of their valuable right to participate in the tender. Hence, he prays for rejection of the writ petitions.
11. Insofar as contention regarding non- compliance of Rule 17 is concerned, Sri.K.N.Puttegowda, learned counsel appearing for the respondent-BBMP has relied more heavily on the proceedings of BBMP as recorded in the original file to buttress his arguments that there is no infraction of Rule 17(2) and as such, said contention raised by the petitioners are liable to be rejected.
12. Sri.N.R.Jagadeeshwara, learned counsel appearing also for the respondent-BBMP in connected matters would support the arguments canvassed by Sri.K.N.Puttegowda, learned counsel appearing for BBMP.
13. Sri. Vijaya Kumar Patil, learned Additional Government Advocate appearing for the State supports the arguments canvassed by Sri.K.N.Puttegowda, learned counsel appearing for BBMP and he would also add that scope of judicial review of an administrative action is limited in the matters of tender and this Court exercising supervisory jurisdiction under Article 227 of Constitution of India would not sit as an appellate Court to ascertain the correctness or otherwise of the decision taken by the Commissioner, namely, Corporation, as well as the appropriate Government in this regard and as such, question of quashing impugned tender notification would not arise and keeping in mind the urgency that has been expressed by BBMP, time schedule fixed under sub-rule (1) of Rule 17 has been dispensed with in exercise of power vested with the authority superior to Notice Inviting Authority under sub-rule (2) of Rule 17. Hence, he prays for rejection of petitions.
14. Having heard learned counsel appearing for the parties and on perusal of the records, it requires to be noticed that in the matter of tender, this Court would not interfere in the said process until and unless the decision- making process is flawed and the decision so arrived at by the tender inviting authority is illegal and such decision will not be within the scope of judicial review.
15. This Court exercising power under Articles 226 and 227 of Constitution of India would not act as an appellate Court to examine the correctness or otherwise of the decision arrived at by Notice Inviting Authority. This Court would not interfere with the decision taken by Notice Inviting Authority unless it is established that such decision is capricious, arbitrary and not being in non- consonance with the scope of the tender. The scope of judicial review in the matter of tender is to see whether there has been any infirmity in the decision- making process and even if there are any minor irregularities, the Courts would ignore the same and not interfere unless substantial public interest involved or malafides would arise attributable to Notice Inviting Authority and that would be the primary concern of the Court. For this proposition, judgment of Apex Court in the following cases can be looked into :
1. In the case of TATA CELLULAR VS. UNION OF INDIA reported in AIR 1996 SC 11.
2. In the case of STERLING COMPUTERS LIMITED VS. M/S M & N PUBLICATIONS LTD., & OTHERS reported in AIR 1996 SC 51.
3. In the case of RAUNAQ INTERNATIONAL LTD., VS. I.V.R CONSTRUCTION LTD., AND OTHERS reported in AIR 1999 SC 393.
16. Hon’ble Apex Court in the case of JAGADISH MANDAL VS. STATE OF ORISSA AND OTHERS reported in (2007) 14 SCC 517 has held that limited question, which will have to be considered in a writ petition filed by an unsuccessful Tenderer is to find out whether the Committee has acted unreasonably in taking decision in question. It is further held that scope of judicial review by the High Court being limited, it envisages 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 the lowest tender was irrational, unreasonable and arbitrary. It has been held :
“26. We have referred to various reports only to show that there exist divergent views about the genuineness of the TD passbook. It is wholly unnecessary to record a definite finding on the issue whether the TD passbook submitted by one of the tenderers towards EMD is genuine or forged. In this case, as the Superintendent of Post Offices informed the Department that the postal TD passbook produced by the fifth respondent should not be acted upon, the Committee proceeded to hold that his tender was “non-responsive” or defective as it was not accompanied by a valid EMD. In such circumstances, the limited question that had to be considered in a writ petition filed by the unsuccessful tenderer is whether the Committee acted unreasonably in taking such a decision. There can be no doubt that it did not. The tender was to be accompanied by an EMD as prescribed. If the Postal Department which issued the TD passbook pledged by the fifth respondent towards EMD, said that it should not be acted upon, there is no question of the Committee then holding any further enquiry about its genuineness and holding up the evaluation of tenders. For example if a pay order/banker’s cheque/demand draft issued by a bank is produced as EMD and the bank informs that such pay order/cheque/DD should not be acted upon, the authority concerned is not expected to suspend the process of evaluation and hold an enquiry in regard to the validity of genuineness, but act upon the information received from the bank and treat the EMD as defective and proceed with the evaluation of tenders on that basis.
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”.
17. Hon’ble Apex Court in Jagadish Mandal’s case has further held that before interfering in the tender or contractual matters in exercise of power of judicial review, the Courts should pose to itself the following questions:
(i) Whether the process adopted or decision made by the authority is malafide or intended to favour someone ?
OR Whether the process adopted or decision made is so arbitrary and irrational that 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 ?
18. If the answers are in negative, there should be no interference under Article 226 of Constitution of India. It has been further held in Jagadish Mandal’s case above referred to that 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”. But power of judicial review in the matters of commercial tenders, this Court will have to keep in mind the commercial and technical prudence, which would have gone into the mind of decision-making authority and on the said basis, the decision would have been relied on. Thus, the scope of judicial review would be very limited. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest.
19. That apart the conditions, which is to be imposed and adherence to such condition would be mandatory or examining as to whether the condition imposed by the Tender Inviting Authority is onerous, neigh, miserable to perform and under what circumstances, such conditions were imposed are also in fact within the scope of judicial review. Many factors would have gone into the decision- making process as such sufficient leverage will have to be allowed to the decision-making authority and same will have to be kept in mind while exercising extraordinary jurisdiction in such matters.
20. It is trite-law that non-adherence to the tender conditions by the bidder, Notice Inviting Authority is not required to entertain such bid. Whether a condition is essential or collateral could be ascertained by reference to the consequences of non compliance thereto. As to what condition is to be imposed by the Tender Inviting Authority, is always left to the decision-making authority and Notice Inviting Authority and it would be proper and safe course to be adopted by Courts. However, it can only be said that non-fulfillment of the requirement stipulated, if it would result in rejection of the tender or in other words, if such non-fulfillment results in rejection of the tender, then it would necessarily form an essential part of the tender. This view is fortified by the law laid down by the Hon’ble Apex Court in the case of KANHAIYA LAL AGRAWAL VS. UNION OF INDIA AND OTHERS reported in (2002) 6 SCC 315 vide paragraph No.6.
21. Hon’ble Apex Court in the case of PURAVANKARA PROJECTS LTD., VS. HOTEL VENUE INTERNATIONAL AND OTHERS, reported in (2007) 10 SCC 33 has held that tender terms are contractual and it is the privilege of the Government to impose such terms and conditions as it deems fit in the circumstances, it so desires and Courts would not have jurisdiction to judge as to how the tender terms should be framed as it would not prove to be expensive.
22. Keeping these principles in mind, when facts on hand are examined, it would clearly disclose that the impugned tender dated 04.01.2018 Annexure-A was issued for supply of four(4) wheeler auto vehicles for dry waste collection by BBMP. Last date for uploading queries was 11.01.2018 up to 4:00 p.m. A pre-bid meeting was fixed on 16.01.2018 and last date for receipt of tender was fixed as 29.01.2018 up to 4:00 p.m. An addendum was issued on 25.01.2018 and last date for uploading the bids was extended upto 05.02.2018 till 4:00 p.m. Date and time for opening technical bid was fixed on 07.02.2018 at 4:05 p.m.
23. Writ petitioner in W.P.No.5608/2018 filed writ petition on 03.02.2018 and the other two writ petitions No.5610/2018 and 5419/2018 though filed on 03.02.2018 and 02.02.2018 respectively were not listed and writ petitions which came to be listed before the Court were W.P.No.5608/2018 and W.P.No.5610/2018. This Court by order dated 06.02.2018 had directed the Tender Inviting Authority to receive the bids to be submitted by the petitioners by enabling e-portal and permitted said petitioners to participate in the tender process without prejudice to the contentions raised in writ petitions. Said order reads as under:
“Though the learned senior counsel for the petitioner raises the contention with regard to minimum period of 60 days not being adhered to keeping in view the volume of the contract, considering the instant petition is filed within the period as has been extended through the addendum upto 05.02.2018 and the instant petition had been filed on 03.02.2018, the respondents are directed to receive the tender documents to be submitted by the petitioner by enabling the e-portal and the petitioner is permitted to participate in the tender process without prejudice to the contentions urged in this regard.
Further learned senior counsel with reference to the conditions contained in Annexure-F – addendum relating to the supply of vehicles made earlier would point out that the requirement for having supplied only to Government Department/Local Bodies is arbitrary and without basis. Hence, the petitioner is permitted to submit the documents to support the supply of such number of vehicles in general without restricting the supply made only Government Department/Local Bodies, but to any such purchasers. If such document is produced by the petitioner and if the respondents find it appropriate to proceed with the evaluation without seeking for any further clarifications from this Court, the respondents shall take note of the document submitted by the petitioner and evaluate the same, also without treating the non supply to Government Bodies/Local Bodies as a disability or bar for consideration”.
24. However, they did not submit the tender on 06.02.2018. The fact remains that writ petitioners in W.P. Nos.5608/2018 and 5610/2018 did not submit their tenders either through e-portal or by physical delivery. It has been contended that despite directions issued by this Court to BBMP to enable the e-portal for petitioners to participate in tender process, it was not enabled by BBMP. The fact remains that these two writ petitioners did not submit their tenders in physical form at least either on the same day or on the next day.
25. However, in W.P.No.5491/2018, when the matter was listed before the Court on 07.02.2018, writ petitioner therein was also extended the benefit of order passed in W.P.Nos.5608/2018 and 5610/2018 on 06.02.2018. Order dated 07.02.2018 reads as under:
“Since in similar set of circumstance this Court had taken note of the contention insofar as not complying with the requirement of providing 60 days period in view of the volume of the contract and had permitted the petitioners therein also to upload their tender documents before 4.00 p.m. today i.e., 07.02.2018, the petitioner herein is also granted the liberty of filing their tender documents before 4.00 p.m. today i.e., 07.02.2018 without prejudice to the contentions urged in this petition. In that view, the respondents shall enable the E- portal to receive the tender documents.
If the respondents choose to proceed with the evaluation, the final decision shall not be taken, if the respondents seek to insist upon the tender conditions which are indicated and which are under challenge.”
26. Said writ petition was ordered to be listed with other two writ petitions viz., W.P.Nos.5608/2018 and 5610/2018. Subsequently, on 12.02.2018, all three writ petitions were taken up together and interlocutory application I.A.No.2/2018 filed by petitioner in W.P.No.5608/2018 seeking for a direction to respondent – BBMP to receive the bid alleging their attempts to upload the tender documents had not yielded any positive results since e-portal was not enabled and when petitioner made an attempt to submit the same in physical form, respondent did not receive. This Court keeping in mind the order dated 06.02.2018, permitted the petitioners to submit their bids in physical form and respondent No.5 – BBMP was directed to receive bid documents that would be submitted by petitioners with a condition that it would remain subject to further consideration. Accordingly, BBMP is said to have received the bid submitted by the petitioners in W.P.No.5608/2018 and W.P.No.5491/2018.
Accordingly, the bid submitted by petitioners in W.P.No.5608/2018 and W.P.No.5491/2018 has been received and not opened and respondents are awaiting further orders of this Court in the light of order passed on 12.02.2018.
27. In the light of aforestated facts and analysis of case law as discussed herein above, the first contention raised by learned Senior counsel appearing for petitioner with regard to the tender conditions require to be considered for the purpose of rejection for the reasons indicated therein below.
28. A perusal of tender document does not disclose or indicate even remotely a particular company or manufacturer is being favoured or would be the supplier of vehicle called for tender as per specification, namely, the technical specification specified under Section 5 under the heading ‘C. Technical specifications’. Merely because petitioner in W.P.No.5608/2018 is a manufacturer of a particular type of three wheeler vehicle and as such, it claims to have been excluded from tender process by incorporating a specification under the technical specification that it should be four wheeler dealer body auto only, would not be a ground on which the fault can be found in the tender condition. This Court cannot loose sight of the fact that vehicle which is sought to be procured under the tender in question is for the purpose of disposal of solid waste in the city of Bengaluru which has reached alarming proportion and requires deft handling and urgent measures to be adopted for disposal of such solid waste as otherwise it may result in outbreach of contagious diseases. It is because of this precise reason, the original records of BBMP - Corporation has been perused by this Court and same would disclose that on occasion more than one, the tender committee consisting of experts have met, discussed and resolved as to the specifications which the vehicle should conform to be procured by BBMP in order to achieve the object of disposal of solid waste. This Court is not possessing the requisite expertise to sit in judgment over the wisdom exercised by experts. The presumption would be always in favour of experts who would have applied their mind and specified the technical details in tender document. In the instant case, the vehicle which is sought to be procured and the technical details which can be briefly stated relate to number of wheels, body specification, front structure, floor structure and panel, side panel, front panel, roof covering system, painting, stickering, mike system etc. The micro details with regard to these technical details would be definitely in the domain of the experts. In the instant case, the technical committee having applied its mind by taking into consideration the various facets, has resolved to specify the technical conditions and it is these technical conditions which have been indicated in the subject tender called for by respondent No.5 and it cannot be found or held as flawed.
29. At the cost of repetition, it requires to be noticed that tender notification does not specify or indicate about any particular company having been indicated or specified. It is no doubt true, in the original file, there is reference to Tata Motors which would meet specified conditions. That by itself, would not exclude other four wheeler cabin load body vehicles from participating in the tender. As per specification indicated in tender documents as to whether it is a four wheeler vehicle which is to be procured or three wheeler vehicle or any other wheeler vehicle would always be in the domain of tender inviting authority and as such, this Court cannot sit in judgment over the experts decision or act as an appellate authority to examine as to whether such decision was just and proper or right. In that view of the matter, this Court does not find any merit in the contention raised by learned senior counsel appearing for petitioner and contention raised in that regard stands rejected.
30. Insofar as second contention with regard to the attack on additional condition imposed under addendum at Annexure-‘F’, it would be apt and appropriate to note the existing condition in the bid document and the changes made in the addendum reads as under:
No Sect -ion & Cla use No Description as per bid document the last three years Changes made to bid document any Government departments / Local bodies in the last three years.
Sec. III Poin t B2.
Exp erie nce Crit eria 2. The Bidders in case of Authorized representative /Consortium with Authorized representative as lead member Should have supplied satisfactoril y minimum 170 no’s 4 wheeler Auto vehicles similar to the type specified in the Schedule of Requiremen ts as per tender or any similar vehicle to any Government department s/Local bodies in the last three years 2. The Bidders in case of Authorized representative/ Consortium with Authorized representative as lead member Should have supplied satisfactorily minimum 170 no’s 4 wheeler or 3 wheeler Auto vehicles/Aut o Tippers similar to the type specified in the Schedule of Requirement s as per tender or any similar vehicle to any Government Departments / Local bodies in the last three years.
31. For the simple reason that contentions raised under point number one has been answered against the petitioner, this issue also deserves to be answered against petitioner. However, additional reason which requires to be assigned for rejection of said contention in this regard for ascertaining the said addendum would be the fact BBMP, having undertaken to dispose off the solid waste generated in various parts of Bengaluru City, would be in a position to ascertain the capability and capacity of the bidders and it is in this background under addendum, the condition with regard to the suppliers furnishing proof of having supplied 170 Nos. four- wheelers or three wheelers vehicles or auto-tippers to any government agency in the last three years, has been incorporated in order to obtain a first hand information. At the threshold, it requires to be noticed that petitioners claim to have supplied similar number of vehicles to the contractors who have now been engaged by BBMP and as such, they are contending any information in that regard can be ascertained by the BBMP itself and thereby this condition in the addendum should not be insisted, insofar as the petitioner is concerned cannot be accepted. The tender inviting authority cannot undertake the exercise to search and find out as to whether a particular bidder has supplied the type of vehicle to a contractor and mere furnishing of the list by petitioner of such supply of the vehicles to different contractors would not absolve the bidders to furnish the certificate in proof of same having been supplied and such certificate would be an essential term of the tender. As such, this Court cannot find fault with the tender inviting authority imposing such condition. Hence, the second contention raised by the learned senior counsel appearing for petitioner also deserves to be rejected and it stands rejected.
32. Insofar as third contention with regard to infraction of Rule 17 is concerned, it would be necessary to extract the said Rule for immediate reference and it reads:
“17. Minimum time for submission of tenders. – (1) The Tender Inviting Authority shall ensure that adequate time is provided for the submission of tenders and a minimum time is allowed between date of publication of the Notice Inviting Tenders in the relevant Tender Bulletin the last date for submission of tenders. This minimum period shall be as follows.-
(a) for tenders upto rupees two crores in value, thirty days; and (b) for tenders in excess of rupees two crores in value, sixty days.
(2) Any reduction in the time stipulated under sub-rule (1) has to be specifically authorized by an authority superior to the Tender Inviting Authority for reasons to be recorded in writing.”
33. A bare reading of Rule 17 would clearly indicate that tender inviting authority should ensure that adequate time is provided to the bidders for submission of their tender and the minimum time to be allowed between the date of publication and notice inviting tender while publishing the same either in the bulletin or in the e-portal. Clause (a) of sub- rule(1) of Rule 17 would prescribe 30 days as the minimum time for tenders value up to two crores and tenders in excess of two crores, the time prescribed is 60 days. However, sub-rule (2) enables the authority superior to the tender inviting authority to reduce the time stipulated under sub-rule (1) and while undertaking such an exercise, the tender inviting authority has to record reasons in writing. Sub-rule (2) of Rule 17 does not indicate that reasons by the superior authority should be elaborate. In other words, if the order or the noting in the file would disclose that there is due application of mind by the superior authority for reducing the time stipulated under sub-rule (1), it would meet the test prescribed under sub-rule (2). Thus, there cannot be any straight jacket formula prescribed for the manner in which the reasons are to be recorded by the superior authority to reduce the time prescribed under sub- rule (1) of Rule 17. There might be complex situations and myriad circumstances under which the superior authority exercise the power for reducing the time. By way of illustrations, the following examples can illuminate as to why such direction has been given:
Illustrations:
(a) In case, a water channel being required to be built on emergent basis due to floods or excessive rise of water where the life and property are at stake, the superior authority in such circumstances, though the value of tender is more than what is prescribed under (a) and (b) of sub-rule (1) of Rule 17, can exercise the power to reduce the prescribed time.
(b) Whereas an electric transformer gets burnt down due to nature out burst either at a hospital, Railway Station or any public place is located, it may require urgent attention and in such circumstances, where the value of such procurement being more than the value prescribed under (a) and (b) of sub- rule (1) of Rule 17, the superior authority would be empowered to reduce the time prescribed under sub- rule (1) in exercise of its power under sub-rule (2) by recording the reasons in brief. In such circumstances, the decision so arrived at by the superior authority cannot be found fault with.
34. Keeping the aforestated illustrations in mind, when facts on hand are examined, as noticed herein above, records would disclose that saga of inviting the subject tender relates back to the year 2016. As noticed herein above, the Government order dated 12.08.2016 and 03.11.2016, would disclose that a sum of Rs.30.60 crores was ear-marked for purchase of auto-tipper (four-wheeler) for the purpose of disposal of solid waste, namely, 600 auto-tippers. Since there was a scheme for implementing the solid waste management between BBMP and Social Welfare/NGO organizations in the ratio of 75:25, the BBMP was required to procure 555 vehicles for disposal of solid waste in the city of Bengaluru. In this regard, a proposal was put-up way back in the year 2016 for purchase of said vehicles in the financial year 2016-17 and 2017-18 for a sum of Rs.1530 lakhs in each year, by ear-marking the said amount to be utilized for the purpose of purchase of 555 vehicles. Though the proposal has been put-up and on 09.03.2017, there was no indication with regard to floating of the tender since it was resolved to purchase the said vehicle from a single window agency, same was not accepted by the appropriate Government and in this regard, the Principal Secretary, Urban Development Department by communication dated 26.04.2017, called upon the Commissioner, BBMP to submit a fresh proposal and it is thereafter, a fresh proposal came to be put-up and it was resolved to procure the said auto-tipper vehicles at a cost of Rs.28.13 crores and for the first time, a note was put up by the Assistant Executive Engineer, Solid waste Management and Environmental Engineer of BBMP to call for short term tender. The note relating to the same has been perused by this Court by scrutinizing the original file and reason/noting at paragraphs 10 to 15 when read meticulously together, it does not disclose as to the reason that has been assigned for reducing the time. Infact first respondent herein by communication dated 19.08.2017 addressed to Commissioner – BBMP has passed following query amongst other queries and it reads:
1 xxxx 2 xxxx 3 xxxx 4 xxxx 5. mÉAqÀgï PÀgÉzÀgÉ PÀrªÉÄ zÀgÀzÀ°è ¹UÀĪÀ ¸ÁzsÀåvÉ §UÉÎ AiÉÆÃa¸À¯ÁVzÉAiÉÄÃ?
35. Whether chances of getting vehicles in question for a lesser price is there, if tender is called for?
36. By reply dated 11.09.2017, second respondent has intimated first respondent that it was already resolved by technical committee to purchase vehicles by quotation and four (4) persons have quoted the prices of vehicles and for outer-model, tender would be called for. No direct answer is given to the query raised by first respondent. Infact, at paragraph No.15(4) of the noting while seeking approval of letter being forwarded to first respondent, officers of second respondent have stated to the following effect:
“4. EvÀgÉà CUÀvÀå ªÀiÁ¥ÁðqÀÄUÀ½UÉ (¨Ár/gÀZÀ£ÉAiÀÄ£ÀÄß ¤«Äð¸À®Ä, zsÀé¤ ªÀzsÀðPÀ ªÀåªÀ¸ÉÜ ºÁUÀÆ ¹ÖPÀjAUï PÁAiÀÄð) ªÀiÁvÀæ C¯ÁàªÀ¢ü mÉAqÀgï PÀgÉAiÀÄ®Ä C£ÀĪÉÆÃzÀ£É.”
37. When this proposal was sent to the appropriate government, it was not approved or in other words, by communication dated 15.09.2017, the Principal Secretary addressed a letter to the Commissioner BBMP that issue had been placed before expert committee which examined this issue and it was resolved to issue a direction to the Commissioner to refer the same to the technical committee of BBMP and to furnish details with regard to purchase of the said vehicles under The Karnataka Transparency in Public Procurements Act, 1999. The resolution of expert committee has been extracted by the Principal Secretary, Urban Development Department in the said communication dated 15.09.2017 and it reads as under:
¤tðAiÀÄ: “DAiÀÄÄPÀÛgÀÄ, ©.©.JA.¦. gÀªÀgÀ ¥æÀ¸ÁÛªÀ£ÉAiÀÄ §UÉÎ C¢üPÁgÀAiÀÄÄPÀÛ ¸À«Äw ¸À¨sÉAiÀÄ°è PÀÆ®APÀĵÀªÁV ZÀað¹ CAwªÀĪÁV PÉ.n.¦.¦. PÁAiÉÄÝAiÀÄ »£É߯ÉAiÀÄ°è 565 DmÉÆà n¥ÀàgïUÀ¼À CªÀ±ÀåPÀvÉ, DmÉÆà n¥ÀàgïUÀ¼À ¤ªÀðºÀuÉ ºÁUÀÆ ¸ÀPÁðgÀªÀÅ PÉÆÃjgÀĪÀ E¤ßvÀgÉ ªÀiÁ»wUÀ¼À §UÉÎ WÀ£ÀvÁådå ¤ªÀðºÀuÉAiÀÄ dAn DAiÀÄÄPÀÛgÀÄ ºÁUÀÆ ªÀÄÄRå C©üAiÀÄAvÀgÀgÀÄ ¥ÀÆt𠫪ÀgÀUÀ¼ÉÆA¢UÉ ªÀÄÄA¢£À C¢üPÁgÀAiÀÄÄPÀÛ ¸À«Äw ¸À¨sÉAiÀÄ°è «µÀAiÀĪÀ£ÀÄß ªÀÄAr¸À®Ä ©.©.JA.¦.UÉ ¸ÀÆa¹ «µÀAiÀĪÀ£ÀÄß ªÀÄÄAzÀÆqÀ¯Á¬ÄvÀÄ (Deffered)”.
38. On receipt of said communication, office of respondent No.2 has put a note for approval to call for short term tender i.e., 15 days vide paragraphs 25 to 28 of note sheet and it reads:
“3. WÀ£À ¸ÀPÁðgÀªÀÅ 2016-17 ªÀÄvÀÄÛ 2017-18£Éà ¸Á°UÉ ¥Á°PÉAiÀÄ WÀ£ÀvÁådå ¤ªÀðºÀuÉUÁV MzÀV¹gÀĪÀ C£ÀÄzÁ£ÀªÀ£ÀÄß ªÀiÁZïð-2018 gÉƼÀUÉ ¸ÀzÀâ¼ÀPÉ ªÀiÁrPÉƼÀî¨ÉÃPÁVgÀĪÀÅzÀjAzÀ ¸ÀPÁðgÀzÀ DqÀ½vÁvÀäPÀ C£ÀĪÉÆÃzÀ£É ¤jÃQë¹ 15 ¢£ÀUÀ¼À ¥æÀZÁgÀ CªÀ¢ü ¤Ãr C¯ÁàªÀ¢ü mÉAqÀgï DºÁ餸À®Ä C£ÀĪÉÆÃzÀ£É.”
39. Above note has been approved by Superintendent Engineer, Chief Engineer and Joint Commissioner and Commissioner on 28.12.2017. Though, approval to call for short term tender was to be accorded by Government, same has not been obtained.
40. In this background, the purported approval of superior authority to call for short-term tender by Notice Inviting Authority namely, the Executive engineer, Superintendent engineer, Joint Commissioner and Commissioner would recede to the background. Even otherwise, as already discussed herein above, reasons for reduction of time need not be elaborate or detailed reason is required to be given by superior authority. Even reasons recorded in brief for reduction of time would suffice as noticed herein above. The notice inviting authority may in certain circumstances explain the reasons in the note sheet giving elaborate reasons or reasons in brief as to what is the necessity for calling for a short-term tender or in other words, as to why the time prescribed under sub-rule (1) of Rule 17 is to be reduced by the superior authority. If such reasons are assigned in the note put-up by the Notice Inviting Authority for being approved by the superior authority and in such circumstances, if the superior authority exercise the power and approves such note though not with elaborate reasons, it would definitely meet the criteria prescribed under sub-rule (2) of Rule 17. However, in the instant case as noticed herein above, neither the note put-up by the Notice Inviting Authority nor the approval by superior authority to the Notice Inviting Authority would disclose such exercise having been undertaken. In fact, the reason assigned in paragraph No.15(4) calling for short term tender, if perused, the only irresistible conclusion which can be drawn is, it is no reason at all inasmuch as it is stated for purpose of specifying the technical details with regard to body building of the vehicle, fixing of sound system and skickering work, tender is to be called for by way of short term and not for purchase of the vehicles in question at all. That apart, the superior authority which has approved the note of Notice Inviting Authority is for approving the project. In fact, that is to call for procurement of the vehicles for being used in disposal of solid waste management. There is no reason whatsoever forthcoming from the file, either the Notice Inviting Authority having specified the reasons or assigned the reasons for calling for short- term tender or the superior authority having applied its mind to reduce the time. The exception cannot become a rule. The superior authority has no doubt power to reduce the time. There should be application of mind for reduction of time. The expression “application of mind” and “reasons to be assigned” may vary from case to case and would also take its colour and texture depending upon the terrain in which the circumstances may travel or arise.
41. In the instant case, as noticed herein above, neither such application of mind can be discerned from the note sheet nor from the order by superior authority. In fact, it would be apt and appropriate to note, at this juncture itself, that communication from the Principal Secretary, Urban Development Department to BBMP dated 06.11.2017, BBMP has been called upon to furnish a fresh proposal with regard to calling for short-term tender and its necessity. However, the records would disclose neither the appropriate Government having been informed of the further steps taken by the BBMP nor a fresh proposal having been forwarded to the appropriate Government by BBMP as directed under communication dated 06.11.2017 as noticed herein above. Infact BBMP has taken a completely different route by referring the same to the technical committee and by order dated 04.01.2018 passed by the Chief Engineer, it has resolved to purchase 565 Nos. four-wheeler vehicle. Though there is a reference to a direction issued by the appropriate Government under the letter dated 06.11.2017 (which has been wrongly and erroneously referred to as 06.11.2015, in the note sheet which may also be a typographical error), the fact remains that there was a direction issued by the appropriate Government on 06.11.2017 to BBMP to re-submit a proposal including the reasons for calling short-term tender. No steps having been taken pursuant to it, the order dated 04.01.2018, passed by Chief Engineer who undisputedly is the superior authority to the Notice Inviting Authority, would also not find a whisper or a reference for the reason to reduce the time prescribed under sub-rule (1) of Rule 17, namely, as to why he was exercising the power under sub-rule (2) of Rule 17 to dispense with the prescribed time or as to why the time is to be reduced.
42. For these reasons, the subject tender or the impugned tender notification called for by reducing the time is clearly arbitrary and whimsical and there is total non-application of mind and second respondent and its officers have acted contrary to the directions issued by the appropriate Government as could be seen from the original records. Hence, tender notification cannot be sustained. The consequential question which would arise is as to whether the existing contractors are to be allowed to be continued or not. However, the said issue not being in the domain of this Court, only an observation can be made by permitting BBMP to take such steps as it deems fit in the circumstances of the case and no opinion is expressed in that regard and at the cost of repetition, it is made clear that Commissioner-BBMP would be at liberty to take appropriate decision to meet the exigencies that may arise in the solid waste management.
43. Hence, the following order:
(i) Writ Petitions are hereby allowed in part subject to observations made herein above.
(ii) Tender notification No.EE3/SWM- 1/TEND/03/2017-18 at Anenxure-‘C’ in W.P.No.5608/2018; Annexure-‘A’ in W.P.No.5610/2018 and Annexure-‘A’ in W.P.No.5491/2018 is hereby quashed.
(iii) Second respondent – Commissioner – BBMP and/or competent officer would be at liberty to call for fresh tender in accordance with The Karnataka Transparency in Public Procurements Act, 1999 and Karnataka Transparency in Public Procurements Rules, 2000.
Ordered accordingly.
All pending applications stands consigned to records.
SD/- JUDGE PYR/dn