Calcutta High Court (Appellete Side)
Limited & Anr vs The Union Of India & Ors on 17 June, 2019
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
1
17.06.19
Item No.20
Court No15
Krishnendu
W.P. No. 5846 (W) of 2019
In re: An application under Article 226 of the Constitution of India filed on 12.03.2019;
And
In re: M/s. Wenz International Private
Limited & Anr.
- Versus -
The Union of India & Ors.
Mr. Kallol Bose
Mr. Nilanjan Pal
Mr. Samik Sarkar
For the Petitioners
Mr. Prabal Kumar Mukherjee
Mr. Suhrid Sur
For the Respondent Nos.
2-5 Airports Authority of India (in short, AAI) floated a tender for awarding licence for "Vehicle Parking Rights" at New Integrated Terminal Building, Terminal-II at Kolkata Airport. In the e-Notice Inviting Quotation (in short, e-NIQ) dated 26th February, 2019, it was indicated that the licence would be "purely on temporary basis for a period of 03(three) months and further extendable for 03 (three) months or upto award of regular contract, whichever is earlier".
The minimum reserved license fee was stipulated to be of Rs.11202985/-. In the said tender process, there were four participants but only the petitioner no. 1 emerged to be successful in the technical bid stage and subsequent thereto, the financial bid of the petitioner no.1 was accepted on 7th March, 2019. The status of technical bid and financial bid was uploaded on 7th March, 2019 at 1.02 pm and 4.44 pm respectively. Subsequent 2 thereto, by a communication dated 9th March, 2019, the petitioner no. 1 was informed that the tenure has been cancelled. On the self-same date, a new tender was floated. The petitioner no.1 could not upload the documents in the second tender process.
In the writ petition, an interim order was passed on 18th March, 2019 restraining the respondents from issuing any work order on the basis of the second tender process as initiated by e-NIQ dated 9th March, 2019 and the respondents were further directed to allow the petitioner no. 1 to operate the Vehicle Parking Rights. The said interim order was extended from time to time. In the midst thereof, affidavits have been exchanged by the parties.
Mr. Bose, learned advocate appearing for the petitioners submits that the respondents proceeded in a hot haste to float a fresh tender after cancelling earlier tender process by a cryptic order and on the basis of a verbal instruction of the Corporate Head Quarter (in short, CHQ).
According to Mr. Bose, the respondent no. 5 had no jurisdiction to direct the Tender Committee to cancel the e-NIQ dated 26th February, 2019. There were four participants, including the petitioner no. 1 in the first tender process. The technical bids of three participants were cancelled by the Tender Committee by disclosing reasons, as would be explicit from the document annexed at page 4 of the supplementary affidavit to the affidavit in opposition filed by the respondent nos. 2 to 5 From the said document, it would also be evident that the CHQ sat in appeal over such decision of the Tender Committee and the Manager (Commercial) opined that the evaluation was not done methodically and appropriately.
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He submits that M/s. Mahesh Sani Enterprises Private Limited (in short, Mahesh), a participant in the first tender process as well as in the second tender process has an outstanding due of Rs.12 crores and an arbitration proceeding is pending. However, the respondents are desirous of favouring Mahesh and such arbitrary action warrants interference of this Court. The second tender process was initiated on the date the petitioner no.1 emerged to be successful in the first tender process and as such it was not possible for the petitioner no.1 to upload the documents and to participate in the second tender process.
Per contra, Mr. Mukherjee, learned senior advocate appearing for the respondent nos.2 to 5 submits that the first tender process was a single tender as per clause (3) of the directives of Commercial Advisory Board (in short, CAB), as contained in the memo dated 26th August, 2015. Due to erroneous disqualification of the three participants and the consequential lack of competitiveness, the respondents have rightly cancelled the first tender process and floated a fresh tender. Such action does not suffer from any arbitrariness or unreasonableness warranting interference of this Court in exercise of its power of judicial review.
Mr. Mukherjee further submits that the first tender process was concluded on 8th March, 2019 and even if the petitioner no.1 would have been granted the licence, the tenure of such licence would have expired on 8th June, 2019, as would be explicit from clause (2) of e-NIQ dated 26th February, 2019. The Court cannot compel the authorities to exercise further discretion for extension of such tenure of licence. As such, the petitioner no.1 at this stage has no legal right to claim continuance of licence. More so, by allowing 4 the petitioner no.1 to continue, the authorities of AAI are suffering a huge loss, as would be explicit from the prices quoted by the participants in the second tender process.
He submits that presently the competent authority has taken a decision to float a long-term regular tender for five years.
In reply, Mr. Bose submits that there was no indication in the tender documents pertaining to the first tender process that CHQ can sit in appeal over the decision of the Tender Committee towards acceptance and rejection of the technical bids of the participants.
Clause (3) of the CAB directives contained in the memo dated 26th August, 2015 runs as follows :
"When single bid/offer is received, the tender process may be extended by 15 days. Even if after extension, only single bid/offer is received, or after technical evaluation, only single tender (technically valid) remains, it is to be taken as single tender and then the same may be processed and forwarded to CHQ for approval with specific recommendations of the Airport Incharge/RED. Moreover, in case more than one tenders are received and after technical evaluation, only one party is declared qualified technically, then also it is to be treated as single tender and process further for award of work. This will be applicable to tender called on or after issue of amendment."
From the said clause it appears that in the eventualities detailed therein, the issue needs to be forwarded to CHQ with specific recommendation of the Airport Incharge/RED, for approval for award of work.
It appears from the documents annexed to the affidavit-in-opposition and the supplementary affidavit to the opposition, filed by the respondent nos. 2 to 5, that the 5 respondent no. 4 by a letter dated 7th March, 2019 forwarded the copy of RCAC recommendation and necessary notice. It appears from the said documents that the recommendation of Commercial Department was as follows :
"Since the highest offer of Rs.1,12,07,001/- (Rupees one crore twelve lakhs seven thousand one) per month received from M/s. Wenz International Pvt. Ltd., 2, Beck Bagan Row, Kolkata-700 017 is more than the fixed Minimum Reserved Licence fee of Rs. 1,12,02,985/- per month, it is recommended that the licence may be awarded in favor of M/s. Wenz International Pvt. Ltd. purely on temporary basis for a period of 03 (three) months & further extendable for 03 (three) months or upto award of regular contract, whichever is earlier, with a licence fee of Rs. 1,12,07,001/- per month plus GST and other applicable charges.
GM (Fin) is requested to kindly accord necessary financial concurrence for further necessary action please."
In the said documents, it was also observed that "in terms of DOP para 5.4(b) read with CHQ letter no. AAI/COM/CHQ/CAB/2015 dated 26.08.15 (para 3), the proposal needs approval of CHQ".
It appears from the documents at page 28 of the affidavit in opposition that the respondent no. 5 informed the APD, Kolkata on 08.03.2019 (evening) to take following action regarding e-NIQ for Vehicle Parking Rights at NSCBI Airport, Kolkata :
"1. To Extend existing license for Stop Gap Arrangement of vehicle parking rights at ASCBI Airport, Kolkata for 15(fifteen) days on same terms and conditions.
2. To cancel E-NIQ(ID: 2019_AAI_23462_1) for vehicle parking rights at NSCBI Airport, Kolkata in which out of total four bidders participated only one i.e. M/s Wenz 6 International Pvt. Ltd was technically qualified and price bid of only technically qualified bidder was opened and sent to CHQ for approval.
3. To invite fresh E-NIQ for stop gap arrangement for the period of 3(three) months extendable for further 3(three) months or upto award and commencement of regular contract, whichever is earlier. Due paucity of time short term E-NIQ shall be called."
It appears from page 10 of the supplementary affidavit that the final decision adopted by the CHQ was as follows:-
"(I) To cancel the present e-NIQ & re-invite the NIQ.
(II)To extend the present stop gap arrangement for 15 days."
At the cost of reiteration, it needs to be indicated that the permission granted to the petitioner no.1 to exercise the Vehicle Parking Rights was extended for a period of 15 days on and from 9th March 2019 and the petitioner no. 1 is still continuing on the basis of the interim order passed by this court on 18th March, 2019, which has been extended from time to time.
A composite reading of the documents annexed to the affidavit-in-opposition and the supplementary affidavit to the opposition reveals that the final decision of the CHQ was to extend the existing licence for a period of 15 days and to invite fresh tender. However, prior to the final decision of the CHQ, as adopted on 11th March 2019, the first tender process was cancelled and a new tender was floated on the self-same date in hot haste and the petitioners did not even get an opportunity to participate in the same. Such action on the part of the respondents does not satisfy the test of reasonableness and creates justifiable doubts and impairs the rule of transparency and fairness. Accordingly, the second tender process initiated on 9th March, 2019 is set aside. 7
A perusal of the representation submitted by the petitioner no.2, as annexed at page 189 of the writ petition, reveals that Mahesh has an outstanding due of amount of Rs.12 crores and an arbitration proceeding is in progress. Such statement has not been categorically denied through the averments made at paragraph 8 of the affidavit in opposition.
In the tender documents there is no clause to the effect that CHQ can transpose as an appellate authority over the decision taken by the Tender Committee. According to the CHQ, the Tender Committee ought to have sought for clarifications from Mahesh, M/s. Sushila Trading Corporation and M/s. Dowins Resources Pvt. Ltd. prior to cancellation of their technical bids. However, no clarification was sought for by the tenderers.
There is no material on record and no document has been produced by Mr. Mukherjee in support of his submission that presently the competent authority has taken a decision to float a long-term regular tender for five years.
The CHQ was of the opinion that for further competitiveness and to get better bid, a further tender process needs to be initiated upon grant of extension of the period of licence for a period of 15 days. The respondents are bound to follow the said decision. In view of such decision, the authorities ought to have granted a reasonable time before floating the second tender enabling the petitioner no.1 and others, if any, to participate in the same and to extend the permission granted to the petitioner no.1 till finalization of the new tender process extension to the petitioner no.1.
In view thereof, this Court directs the respondents to float a short-term tender immediately and to complete the said tender process within a period of 15 days and to allow the petitioner no.1 to exercise the "Vehicle Parking Rights" at New Integrated 8 Terminal Building, NSCBI Airport, Kolkata till conclusion of the said tender process and issuance of work order.
Needless to observe, the petitioner no.1 would be at liberty to participate in the new tender process as directed to be held.
With the above observations and directions the writ petition is disposed of. There shall, however, be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties, upon compliance of all requisite formalities.
(Tapabrata Chakraborty, J.)