Delhi High Court - Orders
Metrro Waste Handling Pvt. Ltd vs Delhi Jal Board & Anr on 27 May, 2022
Author: Vipin Sanghi
Bench: Sachin Datta, Vipin Sanghi
$~1.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7685/2022 and C.M. No. 23543/2022
METRRO WASTE HANDLING PVT. LTD. ..... Petitioner
Through: Mr. Ashish Dholakia, Sr. Advocate
with Ms. Samapika Biswal, Mr.
Akash Panwar, Mr. Rohan Chawla
and Ms. Shambhavi Kalra,
Advocates.
versus
DELHI JAL BOARD & ANR. ..... Respondent
Through: Mr. Rahul Mehra, Sr. Advocate with
Ms. Sangeeta Bharti, Standing
Counsel, Ms. Malvi Balyan, and Mr.
Chaitanya Gosain, Advocates for
respondent No.1/ DJB.
Ms. Shobhana Takiar, Standing
Counsel for respondent/ DDA.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE SACHIN DATTA
ORDER
% 27.05.2022
1. We have heard learned senior counsels and proceed to dispose of the present writ petition.
2. The petitioner is aggrieved by the petitioner's disqualification in the tendering process in relation to the NIT No. - 03/Dy.SE(P) SR.II/ (2021-22) at the technical stage.
3. The respondent invited the aforesaid NIT i.e. NIT No. - 03/Dy.SE(P) SR.II/ (2021-22) for the work "Desilting of 1000 mm size and above Signature Not Verified Digitally Signed W.P.(C) 7685/2022 Page 1 of 13 By:RADHA BISHT Signing Date:02.06.2022 14:58:07 diameter peripheral trunk sewer lines in the command of Dwarka STP with vacuum super sucker and jetting cum suction machines with water recycling technology.".
4. The NIT laid the eligibility criteria in Section 1/A. The eligibility criteria set out the General Eligibility Criteria in the following terms:
"
General 1. One completed & commissioned work of Eligibility desilting by mechanical means/ Criteria rehabilitation of sewer line of cost not less than the amount equal to Rs. 11.77Cr.
2. Two completed & commissioned work of desilting by mechanical means/ rehabilitation of sewer line of cost not less than the amount equal to Rs.7.85Cr. each.
3. Three completed & commissioned work of desilting by mechanical means/ rehabilitation of sewer line of cost not less than the amount equal to Rs.5.89Cr. each.
"
5. The NIT further stipulated under the "Specifications and Special Terms and conditions for Sewer Lines related works", inter alia, that:
"30. If required only pneumatic plug will be used for short duration.
31. Pre & Post SONAR survey of sewer line will be done to assess the silt.
32. The payment of desilting work shall be in running meter and after completion, the SONAR survey will be done to assess silt quantity in a 15% length randomly. Out of 15%, 5% SONAR survey randomly shall be carried out after completion of work of entire stretch. If silt is found in the survey beyond the permissible limit then the agency shall carry out SONAR Survey for the entire stretch."Signature Not Verified Digitally Signed W.P.(C) 7685/2022 Page 2 of 13 By:RADHA BISHT Signing Date:02.06.2022 14:58:07
6. The petitioner participated in the said tender process, and claimed that the petitioner met the General Eligibility Criteria, under the Technical Eligibility Criteria, on account of completing and commissioning work of desilting mechanical means/ rehabilitation of sewer line of cost not less than the amount equal to 11.77 crores. In fact, in the certificate produced by the petitioner in relation to the work carried out for the respondent Delhi Jal Board (DJB) itself, the DJB certified that the petitioner had successfully carried out the work of Rs. 41,30,57,571/- till 30.06.2021. The cost of the contract disclosed in the certificate is 59,64,84,000/- and the contract period was stated to be seven years. The work order in relation to the said work was issued on 30.10.2017. Therefore, the work - in respect whereof the certificate was submitted, is an ongoing work.
7. The functional duties in relation to the said work - in respect whereof the certificate was issued, are set out in the tender document issued in respect of the said earlier tender, which read as follows:
"II. Funtional Duties:
The firm has to deploy the machine for mechanized de- silting and chokage removal of the sewer lines. The de- silting should be effective upto 900 mm diameter sewer main.
In normal circumstances, KPI( key Performance indicators)/ cleaning target (in m/hr) of machine is as follows:
Line Diameter Cleaning Target
9 - 12 Inches 60 Metres/Hour
13 - 24 Inches 30 Metres/Hour
25 - 30 Inches 30 Metres/Hour
31 - 36 Inches 15 Metres/Hour
Signature Not Verified
Digitally Signed W.P.(C) 7685/2022 Page 3 of 13
By:RADHA BISHT
Signing Date:02.06.2022
14:58:07
The machine must clean in an hour of jetting-suction- recycling operation (transportation time not included) at least as many metres of line as are mentioned above (under „KPI/cleaning target‟) else Liquidated Damages will be applicable as per clause X and payment will be made on prop-rata basis for the proportion of the sewer line cleaned. For example, if the target is 60 mtr/ hr and 30 mtr/ hr is cleaned; the normal payment for jetting/ suction will be calculated, however 50 % will be amount payable minus Liquidated Damages. The KPI will not be applicable if the jetting/ suction hours are less than 6 hours in a day. The KPI will be calculated on average basis in a day e.g. 0 to 24 hrs. Presence of a dead animal(s) in the line and presence of construction material are not included in normal circumstances. In case of any abnormal circumstance, a certificate must be obtained to this effect from the concerned Executive Engineer (Civil) and penalties will not be applicable on the firm, and normal payment will be made.
The vehicle shall be available and fit for work for minimum 25 days in a month. Delhi Jal Board will hire each machine for minimum total 200 hours per month (and minimum total 8 hours per day normally) for the duration of the contract. 200 hours includes time towards transportation & setting up and actual operation. Lunch hours (1-2 PM) will not be included in 200 hours. The time of operation will be decided by the Engineer-in - charge. However if due to any extraordinary requirement of Delhi Jal Board, a machine is deployed for less than 8 hours, the payment will still be done on pro-rata basis. The contractor should provide a provision to take a CCTV picture both before and after cleaning. After cleaning pictures should depict that sewer is fully cleaned of any static debris.
GPS tracking of machine & suction/jetting may be done by DJB."
Signature Not Verified Digitally Signed W.P.(C) 7685/2022 Page 4 of 13 By:RADHA BISHT Signing Date:02.06.2022 14:58:078. The respondents rejected the petitioner's technical bid on 27.04.2022. The material part of the communication issued by the respondent to the petitioner reads as follows:
"In reference to above it is to inform you that the documents submitted by you along with the bid and further clarification made by you were discussed in the technical evaluation committee meeting wherein it was found that the experience certificate and further clarification submitted by you are only for hiring and 0 & M of recycler machines which does not meet the technical eligibility criteria as per NIT "desilting by mechanical means/rehabilitation of sewer line". The same was also informed to you personally on 27.04.2022."
9. The petitioner was aggrieved by the said rejection, and sent its communication dated 30.04.2022 - addressed to the respondents, disputing the petitioner's technical disqualification as illogical, and raising the grievance that no reasons have been communicated for the disqualification. The petitioner has thereafter preferred this petition.
10. On 19.05.2022 when the petition was heard for the first time, we passed following orders:
"1. We have heard learned counsel for the petitioner as well as learned counsel for the respondent, who appears on service of advance notice, for some time.
2. From the submissions of the parties, it appears that the controversy stands narrowed to find out as to whether in the earlier contract awarded to the petitioner, the petitioner merely acted as hirer of the recycling machines supplied to the respondent or whether the petitioner actually performed the work of sewer -cleaning by also operating the said machines through its own persons/employees. While the petitioner claims that the earlier contract related to 'O&M' i.e. Operation and Maintenance, and, therefore, the petitioners or its employees/persons also operated the machines, learned counsel for the respondent states that as per her present instructions the Signature Not Verified Digitally Signed W.P.(C) 7685/2022 Page 5 of 13 By:RADHA BISHT Signing Date:02.06.2022 14:58:07 earlier contract was only for hire and maintenance, and not for operation of the said machines. She submits that the respondent will file a short affidavit clarifying the said position.
3. Let the aforesaid affidavit be filed within a day with an advance copy to learned counsel appearing for the petitioner. Along with the short affidavit, the respondent should also place on record the relevant documents to show that the scope of the earlier contract, was only hire and maintenance and not actual operation of the recycling machines and that operation of the said machines was undertaken by the employees or persons of the respondent and not by the petitioner.
4. List on 24.05.2022.
5. Till the next date of hearing, the respondent shall maintain status quo in relation to the tender in question."
11. In compliance of our order, the respondents have filed their counter- affidavit, and also produced the original record for our perusal, which we have perused today with the assistance of learned senior counsel for the respondents.
12. From the documents relied upon by the petitioner and the counter- affidavit, it appears that the issue recorded by us in our order dated 19.05.2022, does not survive, and it is evident that the petitioner actually carried out the operation and management of the machines pursuant to the contract, in respect whereof, the experience certificate was submitted.
13. To now justify the petitioner's technical disqualification, Mr. Mehra has, firstly, submitted that the work in question requires use of vacuum super sucker and jetting cum suction machines with water recycling technology. For this purpose, he has relied upon the name of the work in the NIT.
14. Mr. Mehra submits that the petitioner, however, has not provided any document to establish that the petitioner is in a position to carry out the Signature Not Verified Digitally Signed W.P.(C) 7685/2022 Page 6 of 13 By:RADHA BISHT Signing Date:02.06.2022 14:58:07 desilting work with vacuum super sucker and jetting cum suction machines with water recycling technology.
15. Mr. Mehra further submits that the petitioner has not commissioned work of the nature required to be done under the tender in question, and, therefore, lacks the requisite experience. This submission of Mr. Mehra is made on the basis that the petitioner has never used, and has no experience of using, the SONAR Survey Technology, which is required to be deployed under the specifications and special terms and conditions for sewer lines related purpose. Mr. Mehra submits that on this ground as well, the petitioner was liable to be disqualified.
16. At the outset, we notice that the impugned rejection letter dated 27.04.2022 does not mention anything about the petitioner not meeting the requirement regarding use of "vacuum super sucker and jetting cum suction machines water recycling technology". It also does not make any reference to the petitioner's lack of ability/experience in using SONAR survey technology.
17. Ex facie, therefore, the grounds of rejection now sought to be urged by respondent no. 1 appears to be inconsistent with, and beyond what is mentioned in the aforesaid rejection letter dated 27.04.2022, and also beyond the prescribed eligibility criteria. The respondent cannot seek to now justify the petitioner's rejection on grounds which were not considered or recorded when the decision to reject the petitioner's bid was taken. This would be contrary to the dictum laid down in the case of Mohinder Singh Gill & Anr. vs. The Chief Election Commissioner, New Delhi & Ors., (1978) 1 SCC 405.
18. Be that as it may, we have proceeded to examine the relevant records Signature Not Verified Digitally Signed W.P.(C) 7685/2022 Page 7 of 13 By:RADHA BISHT Signing Date:02.06.2022 14:58:07 pertaining to the tender evaluation to satisfy ourselves as to whether there has been proper scrutiny and application of mind on the part of the concerned respondent during the bid evaluation process.
19. From a perusal of the original record, we find that a technical evaluation sheet dated 21.04.2022 came to be prepared, wherein the following observations were made with regard to the Technical General Eligibility Criteria:-
S. Documents Submitted by the firms
No.
Reference/Requirement as per M/s V.N. M/s Metrro M/s Aryan
NIT Documents Engineering Waster Pumps & Envior
Company Handling Pvt. Solutions Pvt.
Ltd. Ltd.
22 Technical General Eligibility The The eligibility The work
Criteria eligibility criteria experience of
a. One completed & criteria document needs the agency is
commissioned work of desilting document clarification regarding storm
by mechanical means / needs water Drain is
rehabilitation of sewer line of clarification amounting to
cost not less than the amount Rs.17.33 Cr.
equal to Rs. 11.77 Cr. (Rs.9.20+8.13)
b. Two completed & Cr.
commissioned work of desilting
by mechanical means /
rehabilitation of sewer line of
cost not less than the amount
equal to Rs. 7.85 Cr. each.
c. Three completed &
commissioned work of desilting
by mechanical means /
rehabilitation of sewer line of
cost not less than the amount
equal to Rs. 5.89 Cr. each.
20. Thereafter, another technical evaluation sheet appears to have been prepared on 25.04.2022, wherein the following observations have been Signature Not Verified Digitally Signed W.P.(C) 7685/2022 Page 8 of 13 By:RADHA BISHT Signing Date:02.06.2022 14:58:07 made with regard to the Technical General Eligibility Criteria:-
S. Documents Submitted by the firms
No.
Reference/Requirement as per M/s V.N. M/s Metrro M/s Aryan
NIT Documents Engineering Waster Pumps &
Company Handling Pvt. Envior
Ltd. Solutions Pvt.
Ltd.
22 Technical General Eligibility As per Do not meet The work
Criteria documents the eligibility experience of
a. One completed & submitted as per the agency is
commissioned work of desilting for
clarification regarding
by mechanical means / clarification
rehabilitation of sewer line of the agency storm water
cost not less than the amount is drain is
equal to Rs. 11.77 Cr. technically amounting to
b. Two completed & eligible Rs. 17.33 Cr.
commissioned work of desilting having (9.20 +8.13)
by mechanical means / three works. Cr.
rehabilitation of sewer line of 1. Rs. 7.15
cost not less than the amount Cr. (P-175)
equal to Rs. 7.85 Cr. each. 2. Rs. 6.46
c. Three completed & Cr. (P-171)
commissioned work of desilting 3. Rs.
by mechanical means / 10.76 Cr.
rehabilitation of sewer line of (P-161)
cost not less than the amount
equal to Rs. 5.89 Cr. each.
OR
c) Completed & commissioned
work of pipe line laying of at
least 30% length each i.e. 39 mtr.
21. In the intervening period between 21.04.2022 and 25.04.2022, the only clarification that has been sought from the petitioner was as under:-
"as per financial eligibility criteria the solvency amount should be equal to 7.85 Cr. of the work or more. You are request to clarify regarding solvency".Signature Not Verified Digitally Signed W.P.(C) 7685/2022 Page 9 of 13 By:RADHA BISHT Signing Date:02.06.2022 14:58:07
22. It is evident from a perusal of the aforesaid, that pursuant to the technical evaluation on 21.04.2022, the only clarification that was sought from the petitioner was with regard to its solvency, and not with regard to its technical competence pertaining to operation of "vacuum super sucker and jetting cum suction machines with water recycling technology" or with regard to the capacity of the petitioner to deploy SONAR survey technology. On the contrary, we find that from another bidder, namely, V.N. Engineering Company, respondent no. 1 sought to seek a specific clarification that "the experience certificate for the work executed by you under PCG-PMPS-JV, needs to be verified by the main client i.e. DJB".
The failure/omission to seek the relevant clarification from the petitioner on technical aspects-which are now sought to be urged by the respondent no.1, is conspicuous.
23. We also note that both in the technical evaluation sheet dated 21.04.2022, and dated 25.04.2022, it was specifically recorded that the work experience of respondent no. 2 is in respect of "storm water drain", and not desilting of peripheral trunk sewer lines. There is nothing to suggest that these two kinds of works can be treated as equivalent. Even if, for the sake of argument, it were to be assumed that the experience in carrying out one kind of work could be considered as good experience for the other, the respondents ought to have clearly and specifically said so in the NIT itself. Consideration of such a bid is evidently and clearly in contravention of the eligibility criteria reproduced in paragraph 4 hereinabove, which specifically referred to "completed and commissioned work of desilting by mechanical means/rehabilitation of sewer line". In the minutes of meeting of Technical Signature Not Verified Digitally Signed W.P.(C) 7685/2022 Page 10 of 13 By:RADHA BISHT Signing Date:02.06.2022 14:58:07 Evaluation Committee which are stated to have taken place on 21.04.2022 and 25.04.2022, while considering the bid of respondent no. 2, it has been observed as under:-
"During the meeting of technical evaluation committee on the basis of documents submitted by above bidders the comparative statement was prepared for evaluating the technical bid, the discrepancies observed during the process of technical evaluation were apprised to Technical Evaluation Committee (TEC) held in the chamber of Pr.CE(Dr.)Proj.- 1on dated 21.04.2022."
24. It is thus evident that while evaluating the bid of Respondent no. 2, its experience in the context of dewatering of storm water drains has been considered to be equivalent to the requisite experience in respect of sewer lines. This is clearly not contemplated in the Technical Eligibility Criteria as set out in the relevant bidding documents. If this was the Respondents' understanding, this ought to have been clearly stated in the NIT, as that would have enabled others with experience in clearing and desilting storm, water drains, to participate in the tender in question. It is well settled that the Tender Inviting Authority is bound to strictly adhere to its own tender conditions, and cannot be seen to be relaxing the same discriminately in favour of one particular bidder.
25. The law in this regard has been reiterated by the Supreme Court time and again in numerous cases, including in the judgments titled as Ramana Dayaram Shetty Vs. International Airport Authority of India, (1979) 3 SCC 489; W.B. State Electricity Board Vs. Patel Engineering Co. Ltd. And Others, (2001) 2 SCC 451 and Central Coalfields Limited and Another Vs. SLL-SML (Joint Venture Consortium) and Others, (2016) 8 SCC 622.
Signature Not Verified Digitally Signed W.P.(C) 7685/2022 Page 11 of 13 By:RADHA BISHT Signing Date:02.06.2022 14:58:0726. In W.B. State Electricity Board (supra), it has been specifically observed as under:-
"...by the ITB which should be complied with scrupulously. In a work of this nature and magnitude where bidders who fulfil pre- qualification alone are invited to bid, adherence to the instructions cannot be given a go-bye by branding it as a pedantic approach, otherwise it will encourage and provide scope for discrimination, arbitrariness and favouritism which are totally opposed to the rule of law and our constitutional values. The very purpose of issuing rules/instructions is to ensure their enforcement lest the rule of law should be a casuality. Relaxation or waiver of a rule or condition, unless so provided under ITB, by the State or its agencies (the appellant) in favour of one bidder would create justifiable doubts in the minds of other bidders, would impair the rule of transparency and fairness and provide room for manipulation to suit the whims of the State agencies in picking and choosing a bidder for awarding contracts as in the case of distributing bounty or charity. In our view such approach should always be avoided. Where power to relax or waive a rule or a condition exists under the rules, it has to be done strictly in compliance with the rules. We have, therefore, no hesitation in concluding that adherence to ITB or rules is the best principle to be followed, which is also in the best public interest."
27. The position that, therefore, emerges is that not only the petitioner has wrongly been disqualified, respondent no. 2 has in fact been wrongly qualified, despite having not fulfilled the criteria of having any completed and commissioned work in respect of "sewer line".
28. We express our dismay at the manner in which respondent no. 1 has proceeded to carry out the technical evaluation. In our view, the entire technical evaluation process suffers from arbitrariness and colourable exercise of authority, in disregard of the technical eligibility criteria prescribed by the respondent no.1 itself.
29. In the facts and circumstances, we have no hesitation in quashing the Signature Not Verified Digitally Signed W.P.(C) 7685/2022 Page 12 of 13 By:RADHA BISHT Signing Date:02.06.2022 14:58:07 rejection letter dated 27.04.2022 bearing No. DJB/Dy.SE(P)SR-II/2022/499 issued by respondent no. 1 to the petitioner. We also direct respondent no. 1 to evaluate the technical bid of the petitioner and respondent no.2 in light of the observations/findings rendered herein. The respondent no.1 may thereafter proceed to open the financial bids of the technically qualified bidder(s). We also direct respondent no. 1 to award the contract based on evaluation of financial bids of the technically qualified bidder(s) as per the applicable rules and procedures of respondent no. 1, and subject to approval by the concerned competent authority.
30. In view of the foregoing, the present writ petition, along with the pending application, is allowed in the aforesaid terms. There shall be no orders as to costs.
VIPIN SANGHI, ACJ SACHIN DATTA, J MAY 27, 2022 aks/AK Signature Not Verified Digitally Signed W.P.(C) 7685/2022 Page 13 of 13 By:RADHA BISHT Signing Date:02.06.2022 14:58:07