Delhi High Court - Orders
Inova Geophysical, Inc vs Oil And Natural Gas Corporation Limited ... on 28 January, 2019
Author: S. Muralidhar
Bench: S.Muralidhar, Sanjeev Narula
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3777/2018
INOVA GEOPHYSICAL, INC. ..... Petitioner
Through: Mr. Aslam Ahmed, Mr. Saurabh
Bindal, Mr. Padam Sankhla and
Mr. Lalit Sankhla, Advocates.
versus
OIL AND NATURAL GAS CORPORATION LIMITED AND ORS.
..... Respondents
Through: Mr. Rakesh Sinha and Mr. Avinash
Sinha, Advocates for R-1.
Mr. Farman Ali, Advocate for
Mr. Ravi Prakash, Advocate for R-2.
Mr. Saurabh Kirpal, Ms. Niti Dixit,
Ms. Raunaq B. Mathur, Ms.
Abhishikta Mallick and Mr. Muizz
UL Iftikhar Drabu, Advocates for R-
3.
CORAM:
JUSTICE S.MURALIDHAR
JUSTICE SANJEEV NARULA
ORDER
% 28.01.2019
1. The challenge in the present petition is to the award of the contract in relation to supply of 'Cable Telemetry Seismic Data Acquisition System' to Respondent No. 3 by Respondent No. 1 (ONGC) which invited the tender by way of a tender notice dated 29th September 2016. This was for ONGC's Geophysical Services at Jorhat, Dehradun, Chennai and Vadodara.
W.P.(C) 3777/2018 Page 1 of 62. This was an international competitive bid with a two-bid process: the first being the Techno-Commercial Bid and once the procedural parameters are met with, then the Price Bid. The present petition is concerned with part B of the said bid which sets out the scope of work as under:
"2.2.1 The scope of work involves supply of integrated cable telemetry system with the following equipment as a minimum.
i. Trusk mounted seismic Data Acquisition System {Truck chassis to be provided by ONGC) ii. Cables, Ground electronics. Batteries with chargers iii. Sensors a. High sensitive Single Geophone Of' b. String of six numbers of normal geophones or c. Single Component Digital receiver iv Radio Controlled Shooting System with radios and all accessories compatible with explosive and vibratory (optional) sources.
v. Storage devices like Tape drives, NAS drives etc. vi. Thermal Plotter, Colour Printers vii. DC and AC power supplies; UPS system(s) viii. Test equipment ix. Other accessories essentially required for a fully field worthy equipment.
x. Each system should consist of a Recording system (including man-machine interface/operator console) duly interfaced and hooked up with state of art Tape drives. Internal and External data Storage systems, peripheral equipment like Thermal plotter, colour monitors, ground electronic units with necessary interfaces, cables. Radio Controlled Shooting System. Sensors, Testing, Repair & maintenance systems and other modules/accessories necessary to operate the system as per specifications/requirements."
3. The above conditions had to be read along with the specification that had W.P.(C) 3777/2018 Page 2 of 6 to be met in part B to the bid documents which set out both the 'vital criteria for accepting of bids' and the 'rejection criteria'. Clause B.1.1. read as under:
"B.1.1 Bid should be complete in all aspects covering the entire scope of job of Supply, Testing, Installation, Commissioning, Training and Acceptance of a Cable Telemetry Seismic Data Acquisition System conforming to the technical specifications indicated in the bid document, duly supported with technical catalogues / literature wherever applicable. Incomplete and non- conforming bids will be rejected outright."
4. Clause B.1.2 (b) which is emphasized by counsel for the Petitioner reads as under:
"B.1.2 (b) Should have manufactured and supplied minimum of 2 (two) offered Cable Telemetry Seismic Data Acquisition Systems of the same or earlier version with a minimum of 10,000 numbers of channels in total (combined for both the systems), to companies across the world which are in the business of exploration / production of hydrocarbons, within the last 5 (five) years.
Of the 2 (two) numbers of Cable Telemetry Seismic Data Acquisition Systems, at least one, should have been sold in countries other than the country of manufacture.
Documentary evidence in respect of the above should be submitted in the form of copies of relevant Purchase Orders along with copies of any of the documents in respect of satisfactory execution of each of those Purchase Orders, such as -
(i) Satisfactory Inspection report (OR) (ii) Satisfactory supply completion / Installation report (OR) (iii) Consignee Receipted Delivery Challans (OR) (iv) Central Excise Gate Pass / Tax Invoices issued under relevant rules of Central Excise / VAT (OR) (v) any other documentary evidence that can substantiate the satisfactory execution of each of the purchase orders cited above."W.P.(C) 3777/2018 Page 3 of 6
5. The case of the Petitioner is that the Sensors formed a important part of the Cable Telemetry Seismic Data Acquisition Systems. According to the Petitioner, it was not enough that the successful bidder should have demonstrated its experience in 'manufacturing and supply' of at least two of the above systems with one being to a buyer in a country other than the country of manufacture but further that the successful bidder should have itself manufactured each of the components of the above system. According to the Petitioner, the successful bidder i.e. Respondent No. 3 was unable to show that the said sensor which formed part of the equipment offered to be supplied by it was manufactured by it and therefore Respondent No. 3 ought not to have qualified the technical bids which were first held on 27th February 2017.
6. According to the Petitioner, they knew even when the technical bids of the Petitioner and Respondent No. 3 were opened on 27th February 2017 that the sensors forming part of the equipment offered to be supplied by Respondent No. 3 were not manufactured by Respondent No. 3 itself and had never been a part of its product portfolio. When asked why they did not protest on this aspect at that stage itself, counsel for the Petitioner volunteered that till such time the price bids were not opened on 22nd January 2018, they were not aware that Respondent No. 3 had in fact successfully qualified in the technical bid.
7. Mr. Saurabh Kirpal, learned counsel for Respondent No. 3, points out that a letter was written by the Petitioner on 17th April 2017 itself to ONGC W.P.(C) 3777/2018 Page 4 of 6 protesting against Respondent No. 3 being qualified for the technical bid, so clearly even then they knew that Respondent No. 3 had already been considered for the next stage i.e. the price bid.
8. In matters of this nature, it is important for an aggrieved party to approach the Court at the earliest possible opportunity so that the equities can be sufficiently balanced even if the Petitioner has a good case. Otherwise, it will be impossible for a Court to set the clock back even if the Petitioner were to succeed.
9. Learned counsel for the Petitioner harped on an order passed by this Court on 25th May 2018 to the effect that "the award of contract shall be subject to the final outcome of these proceedings" which order was made absolute by the order dated 20th November 2018. While that interim order only states the obvious, viz., that the action of ONGC would be subject to the final outcome of the present petition, it does not relieve the Petitioner of the burden of showing: a) that the Petitioner approached the Court in good time for seeking relief and b) in any event, the Petitioner has a prima facie case on merits.
10. Having heard learned counsel for the parties, the Court is of the view that the Petitioner has failed on both counts. A three month delay in filing the present petition on 19th April 2018 almost a year after knowing that the Respondent No. 3 had qualified the technical bid and three months after it was confirmed that the price bid of Respondent No. 3 was being considered, would in the circumstances of the present case be fatal to the case of the W.P.(C) 3777/2018 Page 5 of 6 Petitioner as far as the laches is concerned.
11. In any event, even on the merits of the challenge, the Court is unable to agree with Petitioner that Clause B. 1.2 (b) required Respondent No. 3 to itself manufacture the sensors which would form part of the equipment to be supplied by it to ONGC. If this according to the Petitioner was the only ground on which the Respondent No. 3 ought to have been disqualified, the Court is unable to agree with it. In the considered view of the Court, if the equipment supplier was required to manufacture every component of the equipment itself, then the tender document should have clearly specified that as a requirement. On a reading of the tender requirements, the Court is unable to find any such mandatory condition. Consequently, even on merits, the Petitioner's challenge fails.
12. The petition is accordingly dismissed. The interim order stands vacated.
S. MURALIDHAR, J.
SANJEEV NARULA, J.
JANUARY 28, 2019 nk W.P.(C) 3777/2018 Page 6 of 6