Calcutta High Court
R V Rail Products Private Limited And Anr vs Union Of India Service Through The on 16 May, 2024
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
OD 3
WPO/413/2024
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
R V RAIL PRODUCTS PRIVATE LIMITED AND ANR.
VS
UNION OF INDIA SERVICE THROUGH THE
MINISTRY OF RAILWAYS AND ORS
BEFORE:
The Hon'ble JUSTICE SABYASACHI BHATTACHARYYA
Date: 16th May, 2024.
Appearance:
Mr. Suddhasatva Banerjee, Adv.
Mr. Vikas Baisya, Adv.
Mr. Sourojit Dasgupta, Adv.
. . .for the petitioners.
The Court: Despite service, the respondents remain unrepresented. It is
seen from the order dated May 15, 2024 that is yesterday, that the respondents were not represented on the said date as well. Due to such repeated absence of the respondents, the writ petition is taken up ex parte for preliminary hearing.
Learned counsel appearing for the petitioners has made out a strong prima facie case for the writ petition to be heard on its merits.
Clause 4.10.3 of the tender document stipulates that the procuring authority shall decide the bid evaluation criteria in the tender itself, whether the evaluation shall be item-wise, consignee wise or overall tender value wise. 2
The said option has been exercised by the tender inviting authorities by selecting as evaluation criterion "item wise", as reflected in the tender document annexed at page 132 of the writ petition.
From the said document, it is also evident that for each of the item details, there were separate consignees, one for Uttar Pradesh and the other for Delhi. For the consignee at Uttar Pradesh, 1200 set of the instruments and fittings were to be supplied. For the Delhi consignment, 65 set was to be submitted.
The petitioner contends that each of the said consignments, respectively to Uttar Pradesh and Delhi, should be treated as different items. The petitioners are interested in the Uttar Pradesh bid, since it is candidly submitted by learned counsel for the petitioners that the petitioners did not qualify for the Delhi consignment even otherewise.
In support of such contention, learned counsel places reliance on the Terms and Conditions of the Running Contract (RGC), which at Clause 4.1 stipulates that the firm should quote a single rate (one rate only which will be variable as per respective PVC formula given in tender for these items, if any) applicable for the entire duration of RGC.
The bid summary annexed at page 160 of the writ petition also indicates that all the bidders construed the tender terms in the light of the contentions of the petitioner inasmuch as separate bids were put forth in respect of each of the 'items', that is, the articles to be supplied to each of the consignees at Uttar Pradesh and Delhi. However, although it is indicated in the tender document that the valuation would be item wise, the authorities proceeded by clubbing the two offers for each of the bidders, which were in respect of distinct and different items, together and thus ascertaining the rankings of the successful bidders. 3 Due to such apparently faulty approach by the tender authorities contrary to the tender terms, the petitioner came out as the L-4 bidder and was thus excluded from the next reverse auction stage of the tender process, as the tender contemplates only three bidders to be selected at the first instance.
In view of the petitioners having made out an arguable case, the writ petition ought to be heard on such issues.
Accordingly, the respondents shall file their affidavits in opposition by June 21, 2024. Reply, if any shall be filed by June 28, 2024. The matter shall be listed in the monthly list of July 20, 2024 for hearing.
The respondent authorities shall, in the event reverse auction has not already been held, permit the petitioner to participate in the reverse auction on an ad hoc basis by treating the petitioner to be eligible along with the other successful bidders, in respect of the Uttar Pradesh consignee only.
In the event reverse auction has already been concluded, work order shall not be issued pursuant to the impugned tender process till July 15, 2024 or until further order, whichever is earlier. Parties shall act on the server copy of this order.
(SABYASACHI BHATTACHARYYA, J.) SP/