Jammu & Kashmir High Court - Srinagar Bench
M/S Shah Electrical & Mechanical vs Ut Of J&K & Ors on 16 June, 2023
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 14.06.2023
Pronounced on:16.06.2023
WP(C) No.1479/2023
M/S SHAH ELECTRICAL & MECHANICAL ...PETITIONER(S)
WORKS
Through: Mr. Areeb Kawoosa, Advocate.
Vs.
UT OF J&K & ORS. ....RESPONDENT(S)
Through: Mr. D. C. Raina, Advocate General, with
Mr. Allau-ud-din Ganai, AAG.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioner has challenged the action of the official respondents whereby respondent No.3 has been declared to have qualified the technical evaluation, whereafter he has been declared as 'L1 bidder' in respect of tender bearing No.GEM/2023/B/3405247 dated 2nd May, 2023. A further direction has been sought commanding the official respondents to allot work order in favour of the petitioner and not to allot the same in favour of respondent No.3.
2) Briefly stated, case of the petitioner is that vide tender bearing reference No.ACP/GBL/SANJY/381, respondent No.2 invited e-tenders for hiring 618 manpower (sanitation workers, supervisors and managers) for sanitation management during Shri Amarnath Yatra- 2023, for Nilgrat, Baltal Base Camp to Dumail (District Ganderbal). WP(C) No.1479/2023 Page 1 of 9 Thereafter vide bid document bearing No.GEM/2023/B/3405247 dated 02.05.2023, bids were invited from eligible bidders for the aforesaid work.
3) The petitioner as well as respondent No.3, besides other tenderers submitted their bids along with the supporting documents. As per the bid document, the bids were to be opened on 13.05.2023. The official respondents opened technical bid as well as financial bid of all the bidders and respondent No.3 was declared as 'L1' bidder.
4) According to the petitioner, respondent No.3 was not eligible for consideration and the official respondents have wrongly declared his technical bid as valid. It is case of the petitioner that respondent No.3 has not complied with the mandatory terms of the tender document, inasmuch as he has neither deposited the earnest money in terms of the conditions of the tender document nor did the said respondent possess the requisite qualification in terms of the tender document. It has been contended by the petitioner that all these aspects were brought to the notice of respondent No.1 but no action has been taken by the said respondent on his representation.
5) Vide order dated 12.06.2023, notice was issued to the official respondents, in response whereto, learned Advocate General, Mr. D. C Raina with Mr. Allau-ud-Din Ganai, AAG, have put in appearance and produced the relevant record.
6) Having regard to the urgency involved in the matter, the arguments were heard in the absence of reply of the respondents after WP(C) No.1479/2023 Page 2 of 9 taking into consideration the averments made in the writ petition and the record produced by the official respondents.
7) It has been contended by learned counsel for the petitioner that respondent No.3 had, admittedly, not deposited the earnest money in terms of the conditions of the tender document and the exemption sought by the said respondent under MSE category was not available to him because of the fact that the certificate of exemption produced by the said respondent does not cover the manpower services. It has been contended that in a similar tender relating to work of sanitation management for Zojibal to Panjtarni, District Anantnag Sector, bids were invited vide bid No.GEM/2023/B/3406173 but the exemption from deposition of EMD amount on the basis of MSE category was denied to respondent No.3 by the official respondents. It has also been contended that respondent No.3 has failed to support his claim relating to the experience of providing manpower to organizations etc. with any documentary proof but in spite of this, the official respondents have declared the technical bid of respondent No.3 as 'responsive'. According to the learned counsel, both the aforesaid conditions of the tender documents are essential and non-fulfilment of these conditions on the part of respondent No.3 made him ineligible and, as such, his offer could not have been considered.
8) Learned Advocate General, on the other hand, has contended that respondent No.3 was eligible for exemption from deposition of EMD as he was holding the requisite MSE certificate. He has further WP(C) No.1479/2023 Page 3 of 9 contended that all the requisite documents were furnished by respondent No.3 to support his claim relating to experience in the relevant field. Learned Advocate General has also contended that scope of interference by the Courts in the matters relating to award of tenders is very limited and the Court has to confine itself to the scrutiny of the decision-making process and not to the scrutiny of the decision itself.
9) Before dealing with the rival contentions of the parties, it would be apt to notice the scope of power of the High Court to interfere in the matters relating to award of tenders. The law in this regard is by now more or less settled that merits of a decision regarding award of a contract cannot be a subject mater of judicial review whereas the Court can scrutinize the decision-making process. The Court in such matters cannot substitute its own decision as the Court is not equipped to do so. Therefore, while exercising the power of judicial review in contractual matters, the Court cannot act as an appellate forum over the decision of an administrative authority.
10) The Supreme Court has, in the case of Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium), (2016) 8 SCC 622, held that decision making process of the employer or owner of the project in accepting or rejecting the bid of a tenderer should not interfered with. Interference is permissible only if the decision-making process is mala fide or is intended to favour someone. Similarly, the decision should not be interfered with unless the decision is so arbitrary or WP(C) No.1479/2023 Page 4 of 9 irrational that the Court could say that the decision is one which no responsible authority acting reasonably and in accordance with law could have reached. The Court further went on to observe that the decision-making process or the decision should be perverse and not merely faulty or incorrect or erroneous for warranting interference by the Court.
11) In the face of the foregoing legal position, let us now analyze the facts of the instant case. According to the petitioner, EMD amount has not been deposited by respondent No.3, which is an essential condition of the tender document. It has been contended that even if respondent No.3 had sought exemption under MSE category, still then the said respondent could not have been granted the contract as the said respondent is not a manufacturer of goods and service provider for services.
12) If we have a look at the record produced by the official respondents, respondent No.3 had sought exemption from deposition of EMD amount under MSE category. The certificate on record shows that respondent No.3 concern has been registered under MSE category with services as major activity. As per the condition incorporated in the bid document, the bidder seeking exemption has to submit supporting document for the relevant category with the bid. It further provides that under MSE category, only manufacturer for goods and service providers for services are eligible for exemption from deposition of EMD amount. As already stated, as per the certificate WP(C) No.1479/2023 Page 5 of 9 produced by respondent No.3, which is on record, the said respondent is registered under MSE category for services. Therefore, contention of the petitioner that respondent No.3 was not eligible for exemption from deposition of EMD, is without any substance.
13) It has been contended by learned counsel for the petitioner that in a similar tender, technical bid of respondent No.3 was declared as 'unresponsive' and his claim for exemption from deposition of EMD amount was rejected. Even if the contention of learned counsel for the petitioner in this regard is admitted to be correct, still then just because some other bid of respondent No.3 pursuant to another tender has been wrongly rejected, does not mean that he is not eligible for exemption from deposition of EMD amount on the basis of the certificate which he has produced before respondent No.2 along with his bid document.
14) The other contention raised by learned counsel for the petitioner is as regards the experience of respondent No.3. Clause 4.6 of the tender document relates to the eligibility of a tenderer. It reads as under:
"The Bidder must fulfill all the criteria/conditions mentioned in the section. The Bidder must be a reputed, resourceful and experienced firm/ organization/ company/private limited/PSU/NGO/ society registered in India, in the business of providing sanitation workers/housekeeping services/sanitation services to different Municipal Corporations/ Councils/companies/organizations/for different events /yatras etc. and shall operate in conformity with the provisions of laws in India.
WP(C) No.1479/2023 Page 6 of 9
ELIGIBILITY CONDITIONS
S. No. Requirement Evidence
1. Bidder should be a reputed, resourceful and experienced Documentary proof
firm/organization/company/private limited/ PSU/ NGO/ Society registered in India, in the business of providing sanitary workers/house keeping services/sanitation services to different Municipal Corporations/ councils/ companies/organizations/for different events/yatras etc. and should be registered entity with minimum 3 years of existence on the day of bid submission.
2. The Bidder should have at least 20% of the project cost Audited accounts of and turn over during any of the last three years. the previous financial year.
3. Bidder should not have been blacklisted by any of the state Undertaking on or central Govt. organization. letter head.
4. Bidder should not have been found guilty of any criminal Undertaking on offence by any court of law. letterhead.
5. Bidder should not have a conflict of interest in the Undertaking on assignment. letterhead.
6. Companies with the code of integrity. Undertaking on letterhead.
7. GST Registration Documentary Proof
8. PAN Registration Documentary Proof
9. Previous years' experience of providing manpower to Documentary Proof organizations/events/yatra.
15) From a perusal of the aforesaid clause, it is clear that a tenderer, in order to be eligible, had to be a reputed, resourceful and experienced entity in the business of providing sanitary workers/housekeeping services/sanitation services to different entities with three years existence on the day of submission of bid. Another condition was that the bidder must have experience of providing manpower to organizations for different events/yatra during the previous years and in this regard documentary proof was to be furnished by the bidders.
16) As per the record produced by the official respondents, respondent No.3 had submitted with his bid the documentary evidence of having experience of providing manpower to Cape Town Association of Apartments, which is a registered entity. Respondent WP(C) No.1479/2023 Page 7 of 9 No.3 has also submitted along with his bid three agreements, one dated 1st September, 2021, the second dated 18th March, 2022 and the third dated 1st July, 2022, executed between respondent No.3 and M/S CMR Green Technologies Limited. As per these agreements, respondent No.3, has, as per scope of work/services, under these agreements. deployed its personnel to the factory premises of the company, which means that respondent No.3 has provided manpower services to the said company. The contention of learned counsel for the petitioner that the scope of work, which is subject matter of these agreements, is different and has nothing to do with the providing of services and manpower, is without any substance. All these documents, which have been submitted by respondent No.3 along with its bid, clearly show that the said respondent is an experienced entity in the business of providing sanitation services and manpower services to different organization and it has the requisite experience of providing services and manpower to organizations. Therefore, it cannot be stated that respondent No.3 was not fulfilling the eligibility conditions or that it had failed to provide documentary evidence in support of its claim.
17) In view of what has been discussed hereinabove, no fault can be found in the decision of respondent No.2 in accepting the technical bid of respondent No.3. Admittedly, respondent No.3 is the L1 bidder, as such, no fault can be found with the action of official respondents in awarding tender to the said respondent. In view of these WP(C) No.1479/2023 Page 8 of 9 circumstances, impugned decisions taken by respondent No.2 do not warrant any interference from this Court in exercise of its writ jurisdiction. The writ petition lacks merit and the same is, accordingly, dismissed.
18) The record be returned to learned counsel for the official respondents.
(Sanjay Dhar) Judge Srinagar, 16.06.2023 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
WP(C) No.1479/2023 Page 9 of 9