Rajasthan High Court - Jodhpur
M/S Santosh Kumar Banthia vs Bharat Petroleum Corporation Limited ... on 10 May, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:21476]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 7511/2024
1. M/s Santosh Kumar Banthia, through its proprietor
Santosh Kumar Banthia S/o Shri Mangi Lal Banthia, aged
about 55 years, R/o House No. C-191, Karni Nagar,
Lalgarh, Bikaner, Raj. - 334001.
2. M/s Naveen Handling Company, through its proprietor
Prithvi Raj Parihar S/o Shri Deep Chand Parihar aged
about 44 years, R/o 7-E-11, Jai Narayan Vyas Colony,
Bikaner, Raj. - 334003.
----Petitioners
Versus
1. Bharat Petroleum Corporation Limited (BPCL), through its
Procurement Leader, Central Procurement Organization
(Marketing), Sewree Fort Road, Sewree (East) Mumbai
Maharashtra - 400015.
2. The State Head, Bharat Petroleum Corporation Limited
(BPCL), Plot No. 2 Sahkar Marg, 22 Gowdam, Jaipur,
Rajasthan - 302019.
3. The Territory Manager, Bharat Petroleum Corporation
Limited, Bikaner Plant, Spl-308, RIICO IGC Khara,
Bikaner, Rajasthan - 334006.
----Respondents
For Petitioner(s) : Mr Milap chopra
For Respondent(s) : Mr. Sunil Beniwal, AAG assisted by Mr.
Kunal Upadhayay
HON'BLE DR. JUSTICE NUPUR BHATI
Order 10/05/2024
1. Though the matter is listed in the fresh category however on the joint request of the counsel for the parties it is being heard today itself.
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2. This writ petition has been filed under Article 226 of the Constitution of India with the following prayers
a) by an appropriate writ, order or direction, declare the impugned reservation criteria / policy / condition / clause outlined in the tender document (Annex.1) considering the balance trucks of the MSE Bidders at par with other general bidders as unconstitutional;
(b) by an appropriate writ, order or direction, the impugned reservation criteria / policy / condition / clause outlined in the tender document (Annex.1) considering the balance trucks of the MSE Bidders at par with other general bidders may kindly be quashed and struck down;
(c) by an appropriate writ, order or direction, the concerned respondent authorities may be directed to re-issue the tender for road transportation of Packed LPG Cylinders for BPCL Bikaner LPG Bottling Plant without impugned and discriminatory reservation criteria / policy / condition / clause outlined in the tender document (Annex.1) while quashing and setting aside the E- Tender Reference No. BPCL/LPG/PKD/BIKANER/2023-28;
(d) by an appropriate writ, order or direction, it may be ordered/directed that any Letter of Intent (LOI) issued in pursuance of the opening of the Two Bids Viz. Technical and Price Bid treating the balance trucks of the MSE bidders at par with the general bidders, during the pendency of the instant writ petition shall be quashed and set aside;
(e) by an appropriate writ, order or direction, the concerned respondent authorities may be directed to review and revise the impugned reservation criteria/ policy / condition /clause in the tender document (Annex.1) in terms with the settled principles of law as well as ratio laid down by the Hon'ble Apex Court in catena of judgments, in order to ensure equality, fairness and transparency that serves broader public interest by promoting non-discrimination in government procurement processes.
3. The brief facts of the case are that the petitioners proprietorship concern are carrying on the business of logistics (Downloaded on 14/05/2024 at 08:39:00 PM) [2024:RJ-JD:21476] (3 of 10) [CW-7511/2024] services. The BPCL published E-Tender No. BPCL/LPG/PKD/BIKANER/2023-28 (Annex.1) on 12.12.2023 for the truck owners for the road transportation of the packed LPG cylinders from BPCL Bikaner LPG bottling plant by the trucks for supplying it at LPG Distributorships/locations within and outside the State of Rajasthan for a period of five years. The e-tender published mentioned the total number of required trucks as 77, out of which 22 for SC quota, 11 for ST quota, 19 for the MSME quota (which constitutes 25% of total requirement), and remaining 25 trucks for general.
4. Furthermore, there is a condition that the benefit of trucks allocation shall be restricted to any one criteria only in cases of SC, ST, MSE and Woman and multiple benefit shall not be permitted and the bidders were supposed to select only one quota under which they wish to apply. Furthermore another condition viz. 12 (C) (g) provides that the balance/remaining trucks quoted by MSE bidders, if left out, will be considered for allocation as per the original ranking of evaluation criteria of the tender and at par with other general bidders. i.e., if number of bidders are more than the number of trucks reserved for the MSE category and it is not possible to allocate even one truck to each bidder, then one truck of latest model viz. lowest age will be allocated to bidders under MSE category in order of their original ranking till the reserve quota is fulfilled and the remaining trucks will be considered for allocation as per the original ranking and at par with other general bidders.
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5. The tender document also provided that bidders offering trucks, under general category have to give earnest money deposit of Rs. 25,000/- per truck and maximum of Rs. 3,00,000/- per bid, and the one under SC/ST category they were supposed to give earnest money deposit of Rs. 15,000/- per truck and maximum of Rs. 1,00,000/- per bid however, there was a relaxation for the MSE category and the bidders offering trucks under MSE category had to pay no amount for participation in the tender process.
6. After publication of the aforementioned e-tender, petitioners were interested in the same and therefore, attended the workshop organized by the BPCL for explaining the complete mechanism of the allotment reservation criteria. Thereafter the tender process started and the petitioners participated in the said tender under protest and both the petitioners submitted their bids under protest in the general category as evident from the email reflecting successful bid submission/participation of the petitioners in said tender (Annex.2).
7. Furthermore a reservation policy was adopted by the respondent corporation while providing cross reservation to the MSE category and the petitioners being aggrieved by the same, served legal notice dated 21.04.2024 (Annex.3) to the respondents stating therein that petitioners are bidding under the general category and according to the Public Procurement Policy for Micro and Small Enterprises (MSEs) Order, 2012, MSE bidders cannot allocate their trucks to general bidders after fulfilling the (Downloaded on 14/05/2024 at 08:39:00 PM) [2024:RJ-JD:21476] (5 of 10) [CW-7511/2024] reserved quota category despite when they have claimed the relaxation of not depositing the earnest money deposit.
8. Respondents, however, did not respond to the aforesaid legal notice and arbitrary cross reservation benefits provided to the MSE Bidders and have opened the technical as well as financial bids and is in the process of issuing the letter of intent, the petitioners being aggrieved by the arbitrary reservation and selection criteria as laid down in tender document (Annex.1) have filed this writ petition.
9. Learned counsel for the petitioner submits that the impugned reservation criteria in the tender document deserves to be struck down and quashed in the interest of justice in order to safeguard the fair competition. He also submits that the Public Procurement Policy for Micro and Small Enterprises (MSEs) Order, 2012 aims to promote and support the participation of MSEs in public procurement by reserving a certain percentage of procurement for them which cannot be overlapped or transferred in general i.e., the reservation provided is specifically intended to benefit the MSEs and cannot be transferred or allocated in the category of the general bidders. He further submits that the reservation criteria adopted by respondent corporation is against the Public Procurement Policy for Micro and Small Enterprises (MSEs) Order, 2012.
10. Learned counsel for the petitioner also submits that in the instant case, MSE bidders have anyway claimed the relaxation of not submitting the earnest money deposit and considering them in (Downloaded on 14/05/2024 at 08:39:00 PM) [2024:RJ-JD:21476] (6 of 10) [CW-7511/2024] the general category even if they are higher in the merits that theirs truck are of latest model than that of the general category bidders is illegal and arbitrary.
11. Learned counsel for the petitioners in support of his contentions placed reliance upon a decision in Deepa E.V. v. Union of India & Ors. : (2017) 12 SCC 680.
12. Per contra, Learned counsel for the respondent submits that both the Petitioners had attended the Pre-Bid Meeting on 18.12.2023, however, none of them had raised any kind of objection in the said Meeting. He also submits that the Petitioners have depicted as if they were unaware of the reservation conditions prior to the organization of the Pre-Bid meeting, however, the Petitioner No.1 had earlier participated in two recent tenders for packaged LPG Transportation for Jaipur & Ajmer LPG Plants and was declared a successful bidder after the bidding process in the said tenders as evident from the bidder list Annex. R/1.
13. Learned counsel for the respondents further submits that though the petitioners have stated that it had submitted the bid under protest, however, the same is false, as the petitioners submitted affidavits (Annex.R/2) along with the application accepting all the conditions of the advertisement. He also submits that the petitioner No.1 has been successful bidder in earlier similar bid and thus, cannot plead ignorance of the conditions of the advertisement in the manner as cited aforesaid. He further submits that the Petitioners did not raise any kind of objection (Downloaded on 14/05/2024 at 08:39:00 PM) [2024:RJ-JD:21476] (7 of 10) [CW-7511/2024] during the pre-bid meeting, whereas, he has submitted an affidavit accepting all the conditions of the advertisement. Learned counsel for the respondents also submits that the legal notice sent by the petitioner was duly responded by the respondents on 12.04.2024 vide Annex.R/4 and R/5. Thus, the writ petition is not maintainable and is liable to be dismissed.
14. Learned counsel for the respondents in support of his contentions placed reliance upon judgements passed by Hon'ble Apex Court in the case Jitendra Kumar Singh v. State of U.P., reported in (2010) 3 SCC 119; National High Speed Rail Corpn. Ltd. v. Montecarlo Ltd. Reported in (2022) 6 SCC 401.
15. Heard learned counsel for the parties; perused the material available on record and the Judgement cited at Bar.
16. This Court observes that once the petitioners had the knowledge of all the bid conditions and have accepted the bid conditions by participating in the tender process, thus they cannot challenge the same thereafter. The Hon'ble Apex Court in the case of National High Speed Rail Corpn. Ltd. v. Montecarlo Ltd. :
(2022) 6 SCC 401 has held that once having accepted the terms and conditions of the tender process with the full knowledge of Clauses and having participated with full knowledge, thereafter, it is not open for the original writ petitioner to make a grievance with respect to such clauses. The relevant paragraph of the judgement is reproduced here as under:
"41. Now so far as the view taken by the High Court in the impugned judgment and order [Montecarlo Ltd.v.National High (Downloaded on 14/05/2024 at 08:39:00 PM) [2024:RJ-JD:21476] (8 of 10) [CW-7511/2024] Speed Rail Corpn. Ltd., (2021) 3 HCC (Del) 494] that Clause 28 under Clause (e) of Option A Section 1 and Clause 42.5 of ITB are patently illegal, inasmuch as they seek to curtail the right of the bidders to challenge the rejection of their bid in a multi-stage bidding process at the earliest, and before the award of the contract is concerned, at the outset, it is required to be noted that as such the aforesaid clauses of ITB were not under challenge before the High Court. Even otherwise, it is required to be noted that Clauses 28.1 and 42.5 of ITB were well within the knowledge of the original writ petitioner at the time of participating in the tender process. The aforesaid clauses of ITB were put to the knowledge of all the participants/bidders and the same applied to all. Despite the above clauses in ITB, the original writ petitioner participated in the tender process. Therefore, once having accepted the terms and conditions of the tender process with the full knowledge of Clauses 28.1 and 42.5, and participated with full knowledge, thereafter, it was not open for the original writ petitioner to make a grievance with respect to such clauses.
17. The Hon'ble Bombay High Court in the case of Larsen & Tubro Ltd. v. Mumbai Metropolitan Region Development Authority (MMRDA) & Ors. : (2023) 4 AIR Bom R 74, while relying upon decision in the case of National High Speed Rail Corp. Ltd. (supra) held as under:
"32. The Hon'ble Supreme Court in the case of National High Speed Rail Corporation Limited (supra) has held that the Petitioner once having accepted the terms and conditions of the tender process with full knowledge of relevant clauses and participated with full knowledge, thereafter it was not open for the original Writ Petitioner to make a grievance with respect to such clauses. In our view, the Petitioner had already submitted clarification to the query raised by the Respondents to submit two Work Experience Certificates in respect of each Package and that if the technical bid of the Petitioner is found responsive, same should be considered for Package-2.(Downloaded on 14/05/2024 at 08:39:00 PM)
[2024:RJ-JD:21476] (9 of 10) [CW-7511/2024] The Petitioner now after having failed in both Packages, cannot be allowed to contend that Respondents could not have sought such clarification from the Petitioner. The principles laid down by the Supreme Court in National High Speed Rail Corporation Limited (supra) squarely apply to the facts of this case. We are respectfully bound by these principles."
18. This Court also observes that though the petitioners have alleged that they have submitted the Bid under protest, however, a bare perusal of the documents annexed with the writ petition, it no where discloses that the petitioner had participated pursuant to E-tender in question under protest. Further, a perusal of Annex.R/ 2 filed along with reply to writ petition would reveal that the petitioner had not even raised any objection during the Pre-bid meeting and on the contrary by submitting affidavit alongwith the application (Annex.R/2), the petitioners have accepted all the conditions of the e-tender document/NIT dated 12.12.2023 (Annex.1).
19. This Court finds that prior to participating pursuant to E- tender in question, the petitioner No.1 earlier participated in two tenders for packaged LPG transportation for Jaipur and Ajmer LPG plants without questioning the same conditions, wherein it was declared successful after the bidding process in the tender(s) earlier floated. Thus, the petitioners in one tender have accepted the same conditions and in the other tender the same condition cannot be assailed by way of filing the present writ petition.
20. This Court also observes that once the petitioners have participated in the tender process while accepting all the (Downloaded on 14/05/2024 at 08:39:00 PM) [2024:RJ-JD:21476] (10 of 10) [CW-7511/2024] conditions and when the bid process is at the final stage i.e. Technical and Financial Bids have been opened, the petitioners cannot be permitted to lay a challenge to the tender process after having participated pursuant to e-tender/NIT (Annex.1) issued by the respondents while accepting the conditions of the same.
21. In view of above discussion, this Court finds no force in the writ petition, the same is therefore, dismissed. Stay Petition also stands dismissed.
(DR.NUPUR BHATI),J 270-/devesh/-
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