Gujarat High Court
Heligo Charterers Private Limited vs Director Of Civil Aviation on 9 December, 2015
Author: Akil Kureshi
Bench: Akil Kureshi, Mohinder Pal
C/SCA/19073/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 19073 of 2015
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HELIGO CHARTERERS PRIVATE LIMITED....Petitioner(s)
Versus
DIRECTOR OF CIVIL AVIATION....Respondent(s)
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Appearance:
MR ANKIT SHAH, ADVOCATE for the Petitioner(s) No. 1
MR VANDAN BAXI, AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 09/12/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. The petitioner has challenged the action of the respondent in not accepting the tender bid of the petitioner for maintenance and operation of "VTSVP" AS365 N3 Dauphin Helicopter.
2. Brief facts are as under :
3. The respondent, Director of Civil Aviation, issued a tender notice inviting qualified agencies to apply for a contract of maintenance and operation of the said helicopter. This was uploaded in the official website. Last date for submitting e tender was 9.10.2015. The tender conditions required payment of tender fee, EMD and filing technical bids. Page 1 of 9 HC-NIC Page 1 of 9 Created On Fri Dec 11 01:45:20 IST 2015 C/SCA/19073/2015 ORDER
4. The petitioner being interested in such contract, submitted the tender fee and security bid to the office of respondent on 5.10.2015. On 6.10.2015, the petitioner sent hard copy of the technical bid in a separate envelope as per the requirements of the tender notice. For additional security of the documents, the petitioner placed this envelope containing technical bid in a larger envelope, sealed it and dispatched it for delivery through Blue Dart Express Limited. It is undisputed that same was delivered to the respondent on 7.10.2015.
5. The petitioner however, received an email from the respondent on 12.10.2015 conveying as under :
"We regret to inform that you have not been selected in Preliminary Stage Evaluation Stage for t his tender. You may login at https://www.nprocure.com to view more details.
Thank you for using www.nprocure.com Please contact our Help Desk for any clarifications."
6. Thus the respondent rejected the petitioner's tender at the preliminary stage. Since no reasons were cited for such rejection, the petitioner wrote to the respondent on 14.10.2015 and stated as under :
"We had uploaded our bid in response to your above quoted tender electronically on the morning of 8th October 2015 and this was acknowledged by your nprocure website by an email at 0834 hrs on the same day.Page 2 of 9
HC-NIC Page 2 of 9 Created On Fri Dec 11 01:45:20 IST 2015 C/SCA/19073/2015 ORDER We had sent by courier a hard copy of our bid on 06 Oct.
15 as stipulated on page number 4 in GENERAL REQUIREMENTS section of the Tender Document. Delivery of this package at 1030 hrs on 07 Oct 15 was confirmed by Blue Dart Courier Company.
We were surprised to receive a mail on 12 Oct 15 from nprocure website regretting our rejection at the preliminary Evaluation State of the tender. When we contacted Ms Sonali Singh, Quality Manager to learn about the grounds of this disqualification, the undersigned was told that we had not marked the envelope correctly.
We wish to submit that the main envelope was marked exactly as per the instruction on page number 4 and then this envelope was placed inside another envelope addressed to Civil Aviation Department, Government of Gujarat for the express purpose of handing it over to the Courier agency. This is an universally accepted practice to avoid tampering with sensitive documents as the nature of contents can only be known by the addressee once he/she opens the outer envelope. Such a precaution also ensures that he main envelope is not damaged either due to water ingress when raining or damage due to mishandling etc. A tenderer cannot be rejected for taking such a justifiable precaution.
It surprises us that in spite of having received our bid envelope well before the due date it was not opened to ascertain its contents.
We feel aggrieved that we have been disqualified for a trivial matter when the ebid was already in the system. You are requested to reconsider your ruling and give us an opportunity to proceed to the next stage of bid evaluation."
7. The petitioner also represented to the Ministry of Civil Page 3 of 9 HC-NIC Page 3 of 9 Created On Fri Dec 11 01:45:20 IST 2015 C/SCA/19073/2015 ORDER Aviation under communication dated 21.10.2015. Since there was no reply to such representations, the petitioner filed this petition and challenged the action of the respondent in disqualifying the petitioner.
8. In response to notice, the respondent appeared and filed affidavit dated 6.12.2015. In context of the reasons for not considering the bid of the petitioner, in such affidavit, it is stated as under :
"7. I further respectfully say and submit that as per the essential requirements, the Bidders are required to submit their Bids in hard copy and the essential requirements for submitting the tender were as under :
"Tender should be submitted through ETender only, and Tender Fee, EMD & Technical bid, to be sent separate sealed envelope in mentioned "Tender for maintenance & Operation of AS 365 N3 Dauphin Helicopter (VTSVP)" Civil Aviation Department, Govt. of Gujarat, GUJSAIL Complex, Nr. Torrent Power Substation, SVPO Airport, Ahmedabad 380004 and Financial bid should be submitted through N Procure website only."
As per the above essential requirements, tenderers have to submit hard copy of Technical bid in a separate sealed envelope with a superscription "As per the essential requirements" and noncompliance thereof entails rejection of the Tender.
8. It is respectfully submitted that the technical bid for the aforesaid Tender was opened on 12.10.2015. However, the petitioner Company has not complied with the essential Page 4 of 9 HC-NIC Page 4 of 9 Created On Fri Dec 11 01:45:20 IST 2015 C/SCA/19073/2015 ORDER requirements, which is an important and very vital mode of submission of Tender. It is further submitted that the said fact is not a fact in doubt since in the representation dated 14.10.2015 of the petitioner Company itself, they have specifically admitted about their noncompliance of the essential condition for the bid and it is admitted by the petitioner Company that the main envelope was not marked exactly as per the instruction and the another envelope was placed inside main envelope."
9. It can thus be seen that the rejection of the petitioner's bid at the technical stage was done since the petitioner had not sent the technical bid in a separate sealed envelope mentioning "Tender for maintenance & Operation of AS 365 N3 Dauphin Helicopter (VTSVP)". According to the respondent this was an essential requirement and since the petitioner did not comply with this requirement, the tender was rejected. During the course of arguments, we gathered from the learned AGP that there were in all six agencies who had filed the technical bids. Only two of them were held qualified at the technical stage. Two including the petitioner were disqualified for similar reason. Thus only two agencies were under contention, whose offers are forwarded to the Government.
10. We had in order to appreciate the issue requested the learned AGP to present before the Court packet containing the petitioner's bid sent by the said courier. We notice that outer envelope contained following address: Page 5 of 9
HC-NIC Page 5 of 9 Created On Fri Dec 11 01:45:20 IST 2015 C/SCA/19073/2015 ORDER "TO CAPT. AJAY CHAUHAN DIRECTOR OF CIVIL AVIATION, GOVT. OF GUJARAT, GUJSAIL COMPLEX, NR. TORRENT POWER SUBSTATION, SVPI AIRPORT, AHMEDABAD380003 MOBILE NO.9904049493"
It was sent from :
"HELIGO CHARTERS PVT. LTD.
HANGAR NO.3A, JUHU AERODROME, VILE PARLE(W) MUMBAI. 400056 TELEPHONE NO.26613245/26612146/ 26613221"
11. We were also informed that this envelope was never opened by the respondent or its officers. Thus this envelope remained in a sealed condition all through out till in the Court we opened it today. This larger envelope contained another envelope which contained the following writing:
"CONFIDENTIAL BID IN RESPONSE TO TENDER ID NO.185629 OPERATION & MAINTENANCE OF AS 365 N3 (VTSVP) TO BE OPENED ON 12 OCTOBER 15 AT 12 00 HRS TO CAPT. AJAY CHAUHAN DIRECTOR OF CIVIL AVIATION, Page 6 of 9 HC-NIC Page 6 of 9 Created On Fri Dec 11 01:45:20 IST 2015 C/SCA/19073/2015 ORDER GOVT. OF GUJARAT, GUJSAIL COMPLEX, NR. TORRENT POWER SUBSTATION, SVPI AIRPORT, AHMEDABAD380003 MOBILE NO.9904049493 HELIGO CHARTERS PVT. LTD.
HANGAR NO.3A, JUHU AERODROME, VILE PARLE(W) MUMBAI. 400056 TELEPHONE NO.26613245/26612146/ 26613221"
12. For several reasons, the stand of the respondent cannot be countenanced. Firstly, though the tender notice did contain the condition that the technical bid should be sent in a separate envelope containing description of the tender, the question is whether this can be considered to be essential condition and in facts of the case, can it be stated that the petitioner's action breached such essential condition. In this context, we have noticed that the envelope containing technical bid contained necessary description. For extra safety, the petitioner put this envelope into larger envelope, sealed and dispatched it to the same authority. It may be that to sought out large number of inward posts, such condition would be useful for the respondent. However, when we are informed that only six tenders were received, we fail to understand why Page 7 of 9 HC-NIC Page 7 of 9 Created On Fri Dec 11 01:45:20 IST 2015 C/SCA/19073/2015 ORDER the respondent could not sought out that bids. In fact, the sender's name and address "HELIGO CHARTERS PVT. LTD. HANGAR NO.3A, JUHU AERODROME" should have been sufficient indication of the petitioner's interest in the tender.
13. More importantly, we simply cannot appreciate why the envelope sent by the petitioner remained unopened. Even if the envelope did not contain the necessary description and the respondent eventually held a belief that in absence of such description, the petitioner had breached an essential condition of the contract, there is absolutely no explanation why such post received by the respondent in course of official correspondence was not opened. Without opening the envelope, he simply did not have any means for knowing the contents thereof. As per the affidavit in reply, the respondent disqualified the petitioner on the ground that the technical bid was not forwarded in a separate sealed cover envelope with necessary description. Thus even without opening the outer envelope, the respondent did realise that it contained the technical bid of the petitioner.
14. Additionally, we recall that there were only six agencies who applied for such important work. Only two of them were held qualified. Other agencies were knocked out Page 8 of 9 HC-NIC Page 8 of 9 Created On Fri Dec 11 01:45:20 IST 2015 C/SCA/19073/2015 ORDER of the contention on various grounds. For all these reasons we hold that the respondent committed an error in not considering the petitioner's technical bid on the ground mentioned above. The bid of the petitioner and if the other agency namely, AGRO Aviation is also interested in pursuing the offer and if it was also rejected on similar grounds, both the bids would be opened and evaluated along with other two offerers.
15. We are informed that the respondent had forwarded the offer of the two agencies to the Government for approval. No further action in this regard would be taken. Further process may start from the stage mentioned above.
16. Petition is disposed of.
(AKIL KURESHI, J.) (MOHINDER PAL, J.) raghu Page 9 of 9 HC-NIC Page 9 of 9 Created On Fri Dec 11 01:45:20 IST 2015