Central Administrative Tribunal - Delhi
Shri B.D. Jain vs Govt. Of Nctd on 18 December, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.3356/2010 New Delhi this the 18th day of December, 2013 Honble Mr. A.K. Bhardwaj, Member (J) Honble Mr. P.K. Basu, Member (A) Shri B.D. Jain, Sr. Accts. Officer (Retired) 25A/36, Gali No.15 Vishwas Nagar, Shahdara, Delhi-110003 Applicant (Through Shri Piyush Gaur for Shri Arun Bhardwaj) VERSUS 1. Govt. of NCTD Through Chief Secretary Players Building, I.P. Estate, New Delhi 2. The Director Directorate of Employment 2nd Battery Lane, Near Rajpura Road Delhi 3. The Directorate of Vigilance Govt. of NCTD, 4th Level, C-Wing I.P. Estate, New Delhi 4. The Director Directorate of Health Services F-7, Karkardooma, Shahdara Delhi 5. The EMP Officer (Vig) Directorate of Employment 2, Battery Lane, Delhi-110054 Respondents (Through Shri N.K. Singh for Mrs. Avnish Ahlawat, Advocate) O R D E R Mr. P.K. Basu, Member (A):
The dispute in this OA arises out of a charge memorandum issued against the applicant regarding his misconduct during the year 2005 as Member of the Technical Committee constituted to finalize the tenders for sanitation services in 13 hospitals under the Delhi Health Scheme (DHS). The gist of the case is that the process of awarding contract for sanitation services in the hospitals under DHS started in July-August, 2005. The Notice Inviting Tender (NIT) was based on two bid system viz. technical bid and price bid. Technical bid was evaluated on 4.09.2005 by a Tender Committee of which the applicant was a Member and all the bidders except one were found qualified and it was decided to open the price bid on 19.09.2005 by the said Committee. On 19.09.2005, the applicant put up a note proposing to call manpower deployment plan from technically qualified bidders. Subsequently, the said Tender Committee in its meeting held on 20.09.2005 asked all the technically qualified bidders to submit a manpower deployment plan. In the original tender, the criteria for selection was per square meter rates. Due to this new condition imposed by the Tender Committee, after examining the deployment plans, bids of L1 and L2 were rejected and tender was awarded to bidder L3.
2. The respondents have initiated a departmental proceeding against the applicant as it was viewed that this was in violation of Rule 160 of GFR 2005, terms and conditions of NIT and guidelines of CVC restricting the post tender negotiations except with L-1 bidder. The matter was referred to the CVC which advised that major penalty proceedings be initiated against the applicant. The applicant meanwhile retired on 30.06.2007 on superannuation. The examination showed that the misconduct was within four years of his retirement and, therefore, the departmental proceedings were started against the applicant under Rule 9 of the CCS (Pension) Rules, 1972. The charge memorandum was issued vide memo dated 25.06.2007.
3. Heard both the parties.
4. The case of the applicant is that the charge sheet was served to him on 13.10.2009 i.e. more than two-and-a-half months after the four year term elapsed as the incident was of July-August, 2005 and, therefore, this is in clear violation of Rule 9 (b) (ii) of the CCS (Pension) Rules, which requires that departmental proceedings cannot be instituted in respect of any event which took place more than four years before such institution. The applicant has also stated that in the NIT, there was a condition that the tender shall abide by the provisions of Minimum Wages Act, 1948 and also that the appropriate deployment of the manpower shall be ensured by the contractor as per the real need and requirement of the premises. It is in this background that all the Members of the Committee took a decision to ask for manpower deployment but action is being initiated only against the applicant, which is against the principles of natural justice and shows malafide against the applicant.
5. The respondents case is that the original NIT had only prescribed that tenders would be decided on per square meter rates, however, thereafter, based on the suggestion of the applicant, the Tender Committee introduced the condition of manpower deployment plan. Based on that, bidders L1 and L2 were rejected arbitrarily and L3 selected. It is stated that this was in violation of Rule 160 of GFR 2005, which reads as follows:
Rule 160. Transparency, competition, fairness and elimination of arbitrariness in the procurement process - All government purchases should be made in a transparent, competitive and fair manner, to secure best value for money. This will also enable the prospective bidders to formulate and send their competitive bids with confidence. Some of the measures for ensuring the above are as follows:-
(i) the text of the bidding document should be self-contained and comprehensive without any ambiguities. All essential information, which a bidder needs for sending responsive bid, should be clearly spelt out in the bidding document in simple language. The bidding document should contain, inter alia;-
(a) the criteria for eligibility and qualifications to be met by the bidders such as minimum level of experience, past performance, technical capability, manufacturing facilities and financial position etc.;
(b) eligibility criteria for goods indicating any legal restrictions or conditions about the origin of goods etc. which may required to be met by the successful bidder;
(c) the procedure as well as date, time and place for sending the bids;
(d) date, time and place of opening of the bid;
(e) terms of delivery;
(f) special terms affecting performance, if any.
(ii) Suitable provision should be kept in the bidding document to enable a bidder to question the bidding conditions, bidding process and/ or rejection of its bid.
(iii) Suitable provision for settlement of disputes, if any, emanating from the resultant contract, should be kept in the bidding document.
(iv) The bidding document should indicate clearly that the resultant contract will be interpreted under Indian Laws.
(v) The bidders should be given reasonable time to send their bids.
(vi) The bids should be opened in public and authorised representatives of the bidders should be permitted to attend the bid opening.
(vii) The specifications of the required goods should be clearly stated without any ambiguity so that the prospective bidders can send meaningful bids. In order to attract sufficient number of bidders, the specification should be broad based to the extent feasible. Efforts should also be made to use standard specifications which are widely known to the industry.
(viii) Pre-bid conference : In case of turn-key contract(s) or contract(s) of special nature for procurement of sophisticated and costly equipment, a suitable provision is to be kept in the bidding documents for a pre-bid conference for clarifying issues and clearing doubts, if any, about the specifications and other allied technical details of the plant, equipment and machinery projected in the bidding document. The date, time and place of pre-bid conference should be indicated in the bidding document. This date should be sufficiently ahead of bid opening date.
(ix) Criteria for determining responsiveness of bids, criteria as well as factors to be taken into account for evaluating the bids on a common platform and the criteria for awarding the contract to the responsive lowest bidder should be clearly indicated in the bidding documents.
(x) Bids received should be evaluated in terms of the conditions already incorporated in the bidding documents; no new condition which was not incorporated in the bidding documents should be brought in for evaluation of the bids. Determination of a bids responsiveness should be based on the contents of the bid itself without recourse to extrinsic evidence.
(xi) Bidders should not be permitted to alter or modify their bids after expiry of the deadline for receipt of bids.
(xii) Negotiation with bidders after bid opening must be severely discouraged. However, in exceptional circumstances where price negotiation against an ad-hoc procurement is necessary due to some unavoidable circumstances, the same may be resorted to only with the lowest evaluated responsive bidder.
(xiii) In the rate contract system, where a number of firms are brought on rate contract for the same item, negotiation as well as counter offering of rates are permitted with the bidders in view and for this purpose special permission has been given to the Directorate General of Supplies and Disposals (DGS&D).
(xiv) Contract should ordinarily be awarded to the lowest evaluated bidder whose bid has been found to be responsive and who is eligible and qualified to perform the contract satisfactorily as per the terms and conditions incorporated in the corresponding bidding document. However, where the lowest acceptable bidder against ad-hoc requirement is not in a position to supply the full quantity required, the remaining quantity, as far as possible, be ordered from the next higher responsive bidder at the rates offered by the lowest responsive bidder.
(xv) The name of the successful bidder awarded the contract should be mentioned in the Ministries or Departments notice board or bulletin or web site. Also, it is argued that it violates the guidelines of CVC restricting post tender negotiations except with L-1 bidder. Therefore, the matter was referred to the CVC, who vide memorandum dated 30.01.2008 advised that major penalty proceedings be initiated against the applicant and later Presidential sanction was obtained from the Ministry of Home Affairs under Rule 9 of the CCS (Pension) Rules, 1972.
6. We had also called for the relevant files No.7(2)/2005/DHS/H Cell and 7(2)/2005-06/DHS/H Cell/P.F. In the former file, at page nos. 19 and 20 of the note sheet, are the deliberations of the Committee dated 7.10.2005. It appears that M/s Paragon (L-1) and M/s ACME (L-2) were rejected on the ground that the manpower suggested by them was not sufficient. On the other side, the bid of M/s Prime Services was rejected on the ground that he had quoted high number of employees and, therefore, should not be considered. File No. 7(2)/2005-06/DHS/H Cell/P.F. indicates that the matter was referred to the Finance Department. It is revealed from the file that in October 2005, the department had awarded the work to L-3 without obtaining the concurrence of the Finance Department and assumed liability of more than one crore. The Finance Department held that award of work to L-3 by rejecting the bid of L-1 and L-2 was against the guidelines of CVC and, therefore, advised invitation of fresh tenders. In File No.7(2)/2005/DHS/H Cell, the chart prepared by the Committee is placed according to which the total expenditure quoted by the parties worked out as follows:
Category Total Area/Articles M/s Paragon M/s Good Year M/s ACME M/s Prime Services Rate (in Rs.) Amount (in Rs.) Rate (in Rs.) Amount (in Rs.) Rate (in Rs.) Amount (in Rs.) Rate (in Rs.) Amount (in Rs.) xxxx xxxx xxxx xxxx xxxx xxxx Expenditure Involved per Year 6368983.44 13773162.00 7344945.16 25396517.04 ELIGIBILITY L-1 L-3 L-2 L-4
7. Thus, it would appear that the rate quoted by L-3 was more than double of L-1 and also slightly less than double of L-2. In such circumstances, award of the work to L-3 without giving proper opportunity to the other bidders regarding the question of manpower deployment clearly raises doubts about the procedure adopted. Moreover, in this case CVC guidelines, GFR and NIT conditions have been omitted to be followed raising further doubts about the procedure followed. On the question of violation of Rule 9 (b) (ii) of the CCS (Pension) Rules, it is seen that the charge memorandum was issued in August, 2009 which is within four years period, therefore, this does not vitiate the proceedings. We, therefore, do not find sufficient grounds to interfere in the departmental proceedings at this stage and to quash the charge-memorandum as prayed for by the applicant. The OA is thus dismissed. No costs.
8. The applicant has also raised the issue that despite action against him, no action has been initiated against the other members of the Committee. The learned counsel for the respondents assures us that action has been initiated against all in their respective departments. We do hope that respondents will take similar action against the other Members of the Committee as is being taken against the applicant.
( P.K. Basu ) ( A.K. Bhardwaj ) Member (A) Member (J) /dkm/