Delhi High Court - Orders
Celebi Airport Services India Pvt. Ltd vs Union Of India & Anr on 5 May, 2022
Author: Vipin Sanghi
Bench: Navin Chawla, Vipin Sanghi
$~22.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7028/2022
CELEBI AIRPORT SERVICES INDIA PVT. LTD...... Petitioner
Through: Mr. Rakesh Tiku, Senior Advocate
alongwith Mr. Sarul jain, Advocate.
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Mr. Balendu Shekhar and Mr. Raj
Kumar Maurya, Advocates for
respondent No. 1.
Mr. Sonal Kumar Singh, Ms. Gunjan
Gupta and Mr. Anshuman Gupta,
Advocates for respondent No. 2/ AAI.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE NAVIN CHAWLA
ORDER
% 05.05.2022 C.M. No. 21590/2022
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
W.P.(C) 7028/2022 and C.M. No. 21589/2022
3. The petitioner has preferred the present writ petition to assail the decision of respondent No. 2 to cancel the Tender ID: 2020_AAI_41227_1 published on 27.01.2020, for grant of concession for ground handling services at Chennai Airport. The petitioner also seeks a direction to the Signature Not Verified Digiltally Signed By:BHUPINDER SINGH ROHELLA Signing Date:07.05.2022 18:46:48 respondents to grant the Letter of Intent to Award (LOIA) to the petitioner qua the said Airport.
4. The case of the petitioner is that in respect of the aforesaid tender, the petitioner had submitted its bid; the petitioner was found to be technically qualified and; the petitioner emerged as the H-2 bidder. The H-1 bidder failed to comply with the conditions of the tender, and was issued a show- cause notice on 24.03.2021. Since the H-1 bidder did not satisfy the respondents with regard to its compliance, the offer made to the H-1 bidder stands withdrawn. The submission is that the respondents should have then proceeded to award the tender to the petitioner being the H-2 bidder.
5. Mr. Tiku has placed before the Court the relevant Clause from the Manual for Procurement of Works, 2019 issued by Government of India, Ministry of Finance, Department of Expenditure, which, inter alia, provides in Clause 5.6.8 "Rejection of All Bids/ Re-tender" that "(f) If the bidder, whose bid has been found to be the lowest evaluated bid withdraws or whose bid has been accepted, fails to sign the procurement contract as may be required, or fails to provide the security as may be required for the performance of the contract or otherwise withdraws from the procurement process, the procuring entity shall cancel the procurement process. Provided that the procuring entity, on being satisfied that it is not a case of cartelization and the integrity of the procurement process has been maintained, may, for cogent reasons to be recorded in writing, offer the next successful bidder an opportunity to match the financial bid of the first successful bidder, and if the offer is accepted, award the contract to the next successful bidder at the price bid of the first successful bidder."
6. The aforesaid Clause would show that the normal course that the Signature Not Verified Digiltally Signed By:BHUPINDER SINGH ROHELLA Signing Date:07.05.2022 18:46:48 tender inviting authority may follow in case the successful bidder withdraws or fails to sign the procurement contract, is to cancel the tender. However, only if the procuring entity is satisfied that it is not the case of cartelization and the integrity of the procurement process has been maintained, it may, for cogent reasons, to be recorded in writing, offer the next successful bidder an opportunity to match the financial bid of the first successful bidder, and if the offer is accepted, award the contract to the next successful bidder at the price bid of the first successful bidder.
7. Mr. Tiku submits that the respondents have not adopted this course of action in the present situation.
8. The aforesaid Clause shows that the respondents may, in the normal course, cancel the tendering process itself and the route of awarding the contract to the next higher/ lowest bidder, as the case may be, on the rates quoted by the first successful bidder, may be adopted as an exception. That being the position, if the respondents have chosen to cancel the tendering process, we find no reason to interfere with the said decision particularly, keeping in view the fact that the tendering process was initiated in January 2020, and we are now in May 2022.
9. It goes without saying that every tender process is time sensitive and with the passage of time, the financials are bound to change and the respondents cannot, therefore, be expected to continue with the tendering process initiated years ago only because qualified bidder may so desire.
10. Learned counsel for the respondent - who appears on advance notice, points out that the Manual relied upon by Mr. Tiku has been further amended, and now the Exception provided earlier of awarding the contract to the next higher/ lowest bidder, as the case may be, has been deleted.
Signature Not Verified Digiltally Signed By:BHUPINDER SINGH ROHELLA Signing Date:07.05.2022 18:46:4811. In any event, since the tendering process was initiated in January 2020, and the new Manual has come into force subsequently, we have examined the case in the light of the pre-amended Clause reproduced hereinabove.
12. We may also observe that the bid security amount furnished by all the bidders, including the petitioner, already stands returned, and even the bank guarantee had been returned. Thus, in any event of the matter, it is too late in the day for the petitioner to approach this Court for the aforesaid relief.
13. Dismissed.
VIPIN SANGHI, ACJ NAVIN CHAWLA, J MAY 05, 2022 kd Signature Not Verified Digiltally Signed By:BHUPINDER SINGH ROHELLA Signing Date:07.05.2022 18:46:48