Delhi High Court - Orders
Cloud Walker Streaming Technologies ... vs Union Of India & Ors on 22 December, 2021
Author: Vipin Sanghi
Bench: Vipin Sanghi, Jasmeet Singh
$~8.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9073/2021 & CM APPLs. 28219/2021, 28221/2021,
35990/2021, 43211/2021
CLOUD WALKER STREAMING TECHNOLOGIES PVT LTD
..... Petitioner
Through: Mr. Rajiv K. Garg, Adv.
versus
UNION OF INDIA & ORS.
..... Respondent
Through: Mr. Sushil Kumar Pandey, senior
panel counsel with Mr. Sahaj Garg,
Ms. Richa Pandey and Mr. Kuldeep
Singh, Advs. for R-1, 3 and 4.
Mr. Abhinav Sharma, Adv. for R-2.
Mr. Ajay Awasthi, Adv. for R-5.
Mr. Suyash Pandey, Adv. for R-6.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE JASMEET SINGH
ORDER
% 22.12.2021
1. The matter has been heard for some time. The defence taken by respondent No.5, which is the Tender Inviting Authority on the portal of GeM is that the tender has rightly been invited only for the products of the LG brand.
2. In support of this submission, Mr. Awasthi has drawn our attention to a meeting, which is stated to have been held of the District Level Purchase Committee for purchase of "Interactive Flat Panel Boards" to Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:24.12.2021 10:40:27 be supplied to the schools under the project "Transformation of Schools". This meeting was attended by the following officers:-
1. Collector, Bargarh Chairman
2. Project Director, DRDA, Bargarh Member
3. Addl. Project Director (Admn.-cum-Fin), Member DRDA, Bargarh
4. District Education Officer, Bargarh Member
5. GM, DIC, Bargarh Member
6. Executive Officer, Municipality, Bargarh Member
7. District Audit Officer, LFA, Bargarh Member
8. Deputy Commissioner Commercial Tax & GST, Member Bargarh
3. The representatives of a few firms were called for the meeting which are as follows:-
1. G. Srinivas E-Square Systems & Tech. Pvt.
Ltd.
2. Bhuvnesh Chauhan Pentagon Tech Fusion Services Pvt. Ltd.
3. Vikram Adams Tata ClassEdge, Bhubaneswar
4. Tapan Biswal Krishna Stone Works, Sambalpur
5. Swagat Kumar Naik Swagat Kumar Naik, Sambalpur
6. Abhishek Purohit Sairam Computers, Bargarh
4. It appears that in the said meeting, certain technical bids of bidders were considered. The minutes record "Hence, keeping the shortage of time to complete the project 'Transformation of Schools' under 5T, it is hereby decided to evaluate the specifications of other reputed brands through open demonstrations. After evaluation through demonstration and other technical aspects, the brand which will fulfil our requirement as per specification, quality, technical aspects and keeping views of Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:24.12.2021 10:40:27 SMCs/SMDCs, that particular brand will be procured through PAC bidding through GeM portal to maintain transparency and to void delay. The committee also decided to return the EMDs of all the firms amounting to Rs. 5.00 Lakhs each and bid processing fees of Rs. 5,000/-".
5. The respondents have also placed on record Annexure C-4 which are the minutes of the proceedings of the District Level Purchase Committee meeting held on 30.07.2021 for demonstration of various OEM physically and virtually under the Chairmanship of the Collector, Bargarh. The said meeting was attended by the following officers:-
1. Collector, Bargarh Chairman
2. Project Director, DRDA, Bargarh Member
3. Addl. Project Director (Admn.-cum-Fin), Member DRDA, Bargarh
4. District Education Officer, Bargarh Member
5. GM. DIC. Bargarh Member
6. Executive Officer, Municipality, Bargarh Member
7. District Audit Officer, LFA, Bargarh Member
8. Deputy Commissioner Commercial Tax & Member GST, Bargarh
6. The evaluation of the demonstration of various products were done on the following aspects:-
"
1. Availability of Service Centres and spare parts at the District / adjacent District to minimise the service downtime.
2. Air Gap between the Cover Glass and back light unit.
3. Visibility at Semi-out door conditions.
4. Visibility artificial electric lighting environment.
5. Touch sensitivity, brightness and picture clarity of the panels.
6. Distance vision and angular view of the panels as the panels are to be used at the class rooms.
Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:24.12.2021 10:40:277. Multiple touch functions and screen sharing functions to multiple users at a time.
8. Softwares and operating systems."
7. This meeting concludes that after comparing the products, the quality and specifications, the LG Interactive Flat Panel Board was preferred by the SMCs / SMDCs and the members of the school representative.
8. The committee unanimously decided to go for specific product of LG model- 75TR3BF to be procured through PAC bidding in the Government e-Marketplace (GeM portal) to avoid delay and to maintain transparency. We may, at this stage, make a few observations in regard to the minutes of these two meetings. Firstly, it appears that no technical person was associated while holding these meetings. While holding the first meeting on 30.07.2021 at 10:00 AM, only a few firms were present. It is not clear as to how only a few firms were called for this meeting. The second meeting referred to above, only enlisted various aspects without giving any technical specifications or parameters. The products sought to be purchased are technical products and there are specific industry standards laid down in respect of the aspects sought to be looked into.
9. However, there is absolutely no technical specification in respect of any of the aspects which was set as a benchmark, and on the basis of the same, the evaluation of the products was made. It is not even clear whether all available products were surveyed and evaluated. Therefore, it appears to us that there is absolutely no justification provided by the respondents to show as to how they have arrived at only a particular model of the product that they sought to require.
Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:24.12.2021 10:40:2710. The petitioner has also highlighted that the GeM portal of the Government of India enlists the role and responsibilities of buyers of GeM. In respect of Proprietary Article Certificate (PAC) buying, the buyer is obliged to comply with conditions which have been set out in pages 23 to 30 of the writ petition.
11. The submission of the learned counsel representing the GeM portal is that the said portal only acts as an intermediary. Thus, the GeM portal is not obliged to ensure compliance of its own conditions as laid down by it. We find this submission difficult to accept. Firstly, the GeM portal is not an ordinary portal. It is the portal of Government of India, and it is not that any person can approach the said portal for the purpose of buying or selling its goods through the mode of tendering.
12. The portal itself lays down the discipline to be followed whenever the buyer desires to purchase a proprietary product or article. That being the proposition, in our view, the responsibility falls on the GeM portal was to ensure that the conditions laid down by it are satisfied. Otherwise there is no purpose of laying down conditions before a buyer can resort to proprietary article buying.
13. The submission of the respondents is that the petitioner being business entity situated in Mumbai, was not entitled to participate in the tender since the tender lays down the condition that the OEM supplier, as well as the bidder, have to be registered in the State of Odisha.
14. Mr. Garg submits that against this prescription, the petitioner has represented and that is one of the reasons why the petitioner is seeking the quashing of the tender in question in toto.
15. Mr. Awasthi who appears for respondent No.5 and Mr. Sharma who Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:24.12.2021 10:40:27 appears for the GeM portal (respondent No.2) seek time to take instructions and respond.
16. Interim orders to continue till the next date.
17. At the request, list on 10.01.2022.
VIPIN SANGHI, J JASMEET SINGH, J DECEMBER 22, 2021/ „ms‟ Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:24.12.2021 10:40:27