Calcutta High Court (Appellete Side)
& Anr vs Union Of India & Ors on 5 April, 2017
Author: Debangsu Basak
Bench: Debangsu Basak
1
April 05,
2017
R.C.
W.P. 9101 (W) OF 2017
Mechanical Marine Engineers
& Anr.
Vs.
Union of India & Ors.
With
W.P. 9756 (W) OF 2017
M/s. Eastern Navigation Pvt.
Ltd. & Anr.
Vs.
The Kolkata Port Trust & Ors.
=-=-=-
Mr. Surojit Nath Mitra,
Sr. Advocate
Mr. Jayjit Ganguly
Mr. Sayantan Basu
Mr. Jai Kumar Surana
...for Petitioner in
(W.P.9101 (W) of 2017)
Mr.Saptangsu Basu,
Sr. Advocate
Mr.Srijib Chakraborty
Mr. Swaraj Shah
Mr. Pradeep Kumar,
...for Petitioner in
(W.P. 9756 (W) OF 2017)
Mr.Jishnu Saha,
Sr.Advocate
Mr. Rishav Banerjee
Mr. Souvik Mazumdar
Mrs. Namita DuttaChoudhury,
...for Respdt.Nos. 4 & 5
in (W.P.9101 (W) of 2017
& W.P. 9756 (W) OF
2017)
Mr. Abhrajit Mitra, Sr. Advocate
Mr. Niloy Sengupta,
...for KOPT in
2
(W.P.9101 (W) of 2017
& W.P. 9756 (W) OF
2017)
Two writ petitions, challenging the
issuance of an work order in terms of a
tender for hire of one survey-cum-pilot
vessel issued by the Kolkata Port Trust, are
taken up for consideration analogously as
they involve the same issues.
W.P. 9101 (W) of 2017 is first in the
point of time. It is referred to as the first
petition for the sake of convenience. The
learned senior advocate appearing in
support of the first petition submits that,
the Kolkata Port Trust authorities (KOPT)
has awarded a tender in favour of the
respondent nos. 4 and 5 in gross violation
of the essential terms and conditions of the
subject tender. He refers to the Clause 2 of
the prequalification criteria at annexure B
of the tender notice. He submits that, the
respondent nos. 4 and 5 does not fulfil the
experience and financial capability
required under the subject tender. He
draws the attention of the Court to
appendix 5 and appendix 6 of the tender
documents and submits that, an individual
member of a consortium is required to give
its individual details. The individual
tenderers are also required to submit an
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annual turnover for the last three years
that are specified being the financial years
2013-2014, 2014-2015 and 2015-2016. He
submits that, the respondent nos. 4 and 5
do not fulfil such criteria, as one of the
private respondents was not incorporated
in the first two of such financial years. He
refers to Clause 6.0 of the annexure to the
tender documents and submits that the
technical and financial capability of the
private respondent nos. 4 and 5 have been
miscalculated. He refers to page 149 of the
writ petition which is the certificate issued
by the Chartered Accountant of the
respondent nos. 4 and 5 in respect of the
turnover. He submits that, the respondent
nos. 4 and 5 do not fulfil Clause 2 of the
prequalification criteria. In such
circumstances, he submits that, the award
of contract in favour of the respondent nos.
4 and 5 should be quashed.
W.P. 9756 (W) of 2017 being second
in point of time is referred to a second
petition for the sake of convenience. The
learned senior advocate appearing in
support of second writ petition adopts the
submissions made on behalf of first writ
petitioners. In addition thereof, he submits
that, in view of the fact that the respondent
no. 4 and 5 do not have the requisite
technical and the financial capability, the
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grant of the contract should be set asidze.
He relies upon the assessment of eligibility
as provided in the tender documents at
Clauses 6.2 onwards. He submits that, the
respondent nos. 4 and 5 do not fulfil such
eligibility criteria.
The learned senior advocate
appearing on behalf of the KOPT
authorities submits that, the petitioners of
the first petitioner does not have the locus
standi to file and maintain the writ
petition. He submits that, the first writ
petitioner did not participate in the tender
process. He refers to the averments made
in the first petition in support of such
contention. That apart, he submits
referring to the various terms and
conditions of the tender that the tender
evaluation committee has considered the
tender of the respondent nos. 4 and 5 and
has found the same to be satisfying the
eligibility criteria. He relies upon Clause 3
of the annexure-B under the heading
prequalification criteria and submits that,
average annual financial turnover of the
firm during the last three years ending
March 2016 is to be taken into
consideration. He refers to page 149 of the
first writ petition and submits that the
consortium fulfils such eligibility criteria
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and hence the bid of the respondent nos.4
and 5 has been accepted.
The learned senior advocate for the
respondent nos.4 and 5 of the first writ
petition submits that, the respondent nos.
4 and 5 have constituted a special purpose
vehicle to execute the contract. He refers to
various terms and conditions of the tender
and submits the requisite eligibility criteria
in participating in the tender process is
fulfilled by his clients. In the present case,
the respondent nos. 4 and 5 have since
incorporated a special purpose vehicle to
execute the contract.
[In reply, the learned senior advocate
appearing in support of the first writ
petition refers to (1979) 3 Supreme Court
cases 489 (Ramana Dayaram Shetty-Vs-
International Airport Authority of Indi) and
submits that the petitioner has the locus
standi to maintain the writ petition. The
right of the petitioner to participate in the
tender has been infringed by the action of
the KOPT authorities. Had the petitioner
known that an essential eligibility criteria
would be waived or would be read in the
manner sought to be done by the KOPT
authorities, it would have participated in
the tender process. The writ petition is,
therefore, maintainable.]
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I have considered the rival
contentions of the parties and the
materials made available on record.
KOPT had floated a tender in
September 2016 for the purpose of hiring
one survey-cum-pilot vessel issued by the
Kolkata Port Trust. The tender stipulates
the various terms and conditions governing
the same. The relevant terms and
conditions of the subject tender are set out
hereinbelow:
"The firm must have experience of
having successfully completed
similar works of supplying
successfully one MS Class/River Sea
Class Vessel with experienced
manning during the last 7 years up
to August, 2016 which should be in
the following manner:-
a) 3 (three) similar completed works
costing not less than Rs.133.08
lakh each;
Or
b) 2 (two) similar completed works
costing not less than Rs.166.353
lakh each;
Or.
c) 1(one) similar complted works
costing not less than Rs.266.16
lakh
["Similar work'' means the firm must
have provided to its clients at least
one M.S. class/River Sea Class
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Vessel which is owned/hired,
manned, and maintained by the said
firm throughout the contrct priod.]
3. The average annual financial
turnover of the firm during the last 3
years ending March, 2016 should be
at least Rs.99.81 lakh.
4. Claims for fulfiling the above
criteria must be adequately
supported by appropriate
documents like work order,
performance certificate from
Clients, Company's Annual
Reports, Audited Balance Sheet
and Profit and loss account for
last 3 Years (i.e.2013-14, 2014-
15, 2015-2016), Master Roll,
Current P.F.statement E.S.I.
Registration etc. The firm should
also submit documents in
support of compliance of
Minimum Wages Act.
Clause 6.0 JOINT
VENTURES/CONSORTIUM AND AOTHER
FORMS OF ASSOCIATION.
In case the tender is submitted in
joint venture/consortium, the Bidder shall
submit the following confirmation along
with their offer submitted for this tender.
i) All joint venture agreements/
consortium agreements, technical
collabortion agrement shall ensure
that all parties of the joint
venture/consortium are indivisually
and jointly responsible for the tender
coniditions and such agreements are
legally valid.
ii) Joint venture consortium should be
in the nature of legally acceptable
agreements and such agreements
should be notarized.
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iii) Such joint venteure/consortium
agreement should contain explicitly
the scope and responsibilities of all
the partners in the joint
venture/consortium in trms of
financial and technical
commitments/contribution. The
JV/consortium should be equally,
severally and jointly responsible.
......................................................
...................................................... ...........................................
viii) The purchasers of the tender document must be a member of the consortium submitting the tender.
............................................. ........................................x) In case of a Consortium, the combined Technical and Financial Capability of those member who have and shall have an equity share of at least 26% (twenty six percent) each in the Special Purpose Vehicle (or SPV) as explained in this tender document, should satislfy the above conitions of eligibility, provided that each such member shall, for a period of 2 (two) years from the date of commercial operation of the contract, hold equity share capital not less than 26% (twenty six per cent) of the subscribed and paid up equity of the SPV.
6.2 Technical & Financial Capability.
The tenderer (whether a single entity or a consortium) must satisfy pre-qualification criteria as stipulted at Clause-1.0 9 6.3 Assessment of eligibility:
6.33 Experience of any activity relating to an eligible activity shall not be claimed by more than one member of a consortium. In other words, no double counting by a consortium in respect of the same experience shall be permitted in any manner whatsoever.
6.3.5. Where the "Successful Tenderer" is a Consortium", it shall be required to form an appropriate Special Purpose Vehicle of SPV, incorporated under the Indian Companies Act 1956, to execute the Contract Agreement and execute the contract. It shall, in addition to forming the SPV, comply with the following additional requirements:"
The respondent nos. 4 and 5 and the second writ petitioner had participated in the tender process. The writ petitioner of the first writ petition did not participate therein.
Ramanna Dayaram Shetty (supra) considers a similar issue of maintainability as raised herein. It is of the view that, a writ petitioner at the behest of a non-participant is maintainable, where the petitioner alleges non-adherence to the essential conditions and waiver of the same 10 by the authorities. The first writ petition, therefore, maintainable.
The question while falls for consideration is whether the acceptance of the tender of the respondent nos. 4 and 5 is justified by the KOPT authorities or not. The KOPT authorities have read Clause 3 appearing at page 62 of the first writ petition to mean that it is entitled to take the average of the annual financial turnover for a participant during the last three years ending March 2016 and that such average annual financial turnover should be at least Rs.99.81 lakhs. A Chartered accountant certificate at page 149 of the first writ petition shows the break up of the annual financial turnover of the respondent nos. 4 and 5 for the last three years. For one of the respondents, there are two nil entries for the financial years 2013-14, 2014-15. The total actual turnover of the specified three years for both the participants are taken into consideration. An average annual financial turnover is thereafter sought to be arrived at by the KOPT authorities. On an average being taken, the KOPT authorities finds that such average to be in excess of the prescribed limit of Rs.99.91 lakhs. This undertaking of the essential conditions of 11 the tender is contended to be incorrect on behalf of the two writ petitioners.
The understanding of the terms and conditions of the subject tender of KOPT is a plausible one given the terms and conditions as appearing in the subject tender. It is not the case of the petitioners that the KOPT authorities have applied different standards or different interpretations of the same Clause in considering the tenders of the participants. The view of KOPT was applied uniformly to all tenderers.
Clause 3.1 page 62 of the first writ petition permits the KOPT authorities to take the average annual financial turnover of the firm during the last three years ending March 2016. It has done so. Therefore, this conduct of the KOPT authorities and its ultimate decision in awarding the tender in respect of the respondent nos.4 and 5 and that cannot be faulted.
The other Clauses referred to by the learned senior advocates for the two writ petitioners does not, in my view, dilute or make the view taken by KOPT authorities in understanding the terms of the subject contract bad. Such other Clauses also do 12 not establish that the view taken by the KOPT authorities is incorrect.
In such circumstances, I find no merit in the two writ petitions W.P. 9101 (W) OF 2017 and W.P. 9756 (W) OF 2017 are dismissed without any order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
( DEBANGSU BASAK, J. )