Bombay High Court
Omega Elevators vs The State Of Maharashtra on 11 March, 2020
Bench: K. K. Tated, Sarang V. Kotwal
1/5 901-WPL-748-20.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.748 OF 2020
WITH
WRIT PETITION (L) NO.749 OF 2020
Omega Elevators
through Devang Mehta .... Petitioner
versus
State of Maharashtra .... Respondent
.......
• Mr.Bhargav Hasurkar i/b. Manoj Bhatt, Advocate for Petitioner.
• Ms.Uma Palsuledesai, AGP for Respondent.
CORAM : K. K. TATED &
SARANG V. KOTWAL, JJ.
DATE : 11th MARCH, 2020.
P.C. :
1. Leave to amend.
2. Re-verification dispensed with.
3. Heard learned Counsel for the parties.
4. By this Petition, the Petitioner who is a manufacturer of lifts is challenging the terms and conditions of tender issued by Government of Maharashtra dated 10/02/2020 for installments of lifts on several places. He submitted that in that tender the Nesarikar ::: Uploaded on - 13/03/2020 ::: Downloaded on - 13/03/2020 21:53:09 ::: 2/5 901-WPL-748-20.odt Respondent has made specific condition that only makes having Otis, Schindler, Mitsubushi, thyssenkrupp, fujitee, kone, can participate in tender proceedings. He submitted that there should not be any discrimination between the companies. He submitted that the said issue involved before Delhi High Court in the matter of M/s Omega Elevators Vs. Ircon International Ltd., in Writ Petition (C) No.12245/2018. He submitted that even the Delhi High Court has taken a view that there should not be any condition of specific make only. He further submitted that even the Principal Secretary to Prime Minister, Union of India, has issued a letter dated 03/01/2019 to that effect, which reads thus;
"Emblem of India Nripendra Misra Principal Secretary to Prime Minister D.O. No. 330/31/C/64/2018-ES-1 3rd January, 2019 Dear Secretary, Complaints are being received, alleging that Government entities are indicating foreign make/brands and/or restrictive conditions in their tenders, thereby excluding local manufacturers from bidding process.::: Uploaded on - 13/03/2020 ::: Downloaded on - 13/03/2020 21:53:09 :::
3/5 901-WPL-748-20.odt
2. It may be noted that such stipulation of foreign make/brands and/or restrictive conditions (line mandatory requirement of certification by foreign bodies) in the tenders is not only violative of Public procurement (Preference to Make in India) Order, 2017 (PPP-MII Order 2017) issued by DIPP, but also in violation of the General Financial Rules. In this regard, it is necessary to follow the following general guidelines:
a. Indicating foreign make/brands in the tender, and thereby excluding local manufacturers and service providers from participation, is in violation Public Procurement (Preference to Make in India) Order, 2017. Also, as per Rule 144(i)(b) of GFR 2017, procuring agency shall not indicate a requirement for a particular trade mark, trade name or a brand.
b. As per Rule 144(iii) of the GFR 2017, the technical specifications shall, to the extent practicable, be based on the national technical regulations or recognized national standards.
c. Ministries/Departments should also ensure that their procurement entities do not incorporate any such restrictive and discriminatory eligibility criteria regarding turnover, specifications / testing / other standards in tender ::: Uploaded on - 13/03/2020 ::: Downloaded on - 13/03/2020 21:53:09 ::: 4/5 901-WPL-748-20.odt documents that exclude local manufacturers/service providers.
3. Please ensure compliance of the above guidelines strictly at the level of Ministry/Department as also by all attached/subordinate officers and PSUS/ Autonomous bodies under the administrative control of your Ministry/Department. Any violation in regard shall be viewed seriously.
With regards, Yours sincerely Sd/-
(Nripendra Misra) Shri Arun K Panda, Secretary, M/o. Micro, Small & Medium Enterprise, New Delhi May also be circulated to all the division..illegible.."
5. On the basis of this submissions, the learned Counsel for Petitioner submits that they have apprehension that Respondents may reject their tender only on the ground of make.
6. Learned AGP appearing for Respondent submits that she requires some time. Considering this fact, the following order is passed:
::: Uploaded on - 13/03/2020 ::: Downloaded on - 13/03/2020 21:53:09 ::: 5/5 901-WPL-748-20.odt
(a) Respondent can proceed with the opening of
the tender, but not to reject the Petitioner's tender only on the ground of make of particular lift.
(b) Learned AGP is directed to inform this order to the concerned authority immediately.
(c) Matter to appear on board on 16/03/2020.
(SARANG V. KOTWAL, J.) (K.K.TATED, J.) ::: Uploaded on - 13/03/2020 ::: Downloaded on - 13/03/2020 21:53:09 :::