Calcutta High Court
Rashmi Metaliks Ltd And Anr vs The Kolkata Municipal Corporation And ... on 28 June, 2013
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
WP No.570 of 2013
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
RASHMI METALIKS LTD AND ANR.
Versus
THE KOLKATA MUNICIPAL CORPORATION AND ORS.
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
Date : June 28, 2013.
Appearance:
Mr. Ranjan Bachawat, Adv.
Mr. Moinak Bose, Adv.
Mr. J. Chowdhury, Adv.
..for the petitioners.
Mr. Biswajit Mukherjee, Adv.
Mr. Arijit Dey, Adv.
..for the K.M.C
Mr. Debangsu Basak, Adv.
Mr. Ayan Banerjee, Adv.
Mr. P. Sinha, Adv.
..for the State
Mr. Abhrajit Mitra, Adv.
Ms. Rajshree Kajaria, Adv.
Mr. Soumabho Ghose, Adv.
..for the respondent no.5
Mr. Somenath Bose, Adv.
Mr. Raj Sekhar Basu, Adv.
..for the respondent no.6
Mr. Jayanta Mitra, Sr. Adv.
Mr. A. Ray, Adv.
Mr. P. Khaitan, Adv.
Mr. Vivek Jhunjhunwala, Adv.
..for the respondent no.7
2
The Court : The Corporation invited offers for supply and delivery of ductile iron pipes from proven and reputed manufacturers having BIS licence. Pipes of divers specifications were to be supplied and the petitioner company was one of the bidders for the nine categories of products sought by the Corporation.
The eligibility criteria in clause 5 of the tender documents required a declaration to be furnished by each applicant that such applicant was "not debarred/delisted/blacklisted" by any government or government undertaking or municipality in respect of supply of DI pipes during the last five years. The relevant clause also stipulated that if an applicant was debarred or delisted or blacklisted, a brief note relating thereto should be submitted.
It does not appear, prima facie, that merely because a bidder had been debarred or delisted or blacklisted during the last five years by any government or government undertaking or municipality it would result in such applicant's bid not being considered by the Corporation; or else, the second sentence in clause 5(xi) of the tender documents would be meaningless. In any event, in the instructions to bidders accompanying the notice inviting tender, in clause 7 thereof relating to opening and evaluation of tenders, it was specified that information or additional documents could be sought by the tendering committee which the bidder had to furnish within the stipulated time for the bid to be taken up for consideration.
The online bidding was to close by 11 am on June 10, 2013 and the technical proposals were to be opened at 12:30 pm on the same day. The tender documents indicated that the list of technically qualified bidders would be put up 3 on the website at noon on June 13, 2013 and the financial proposals would be opened at noon the following day.
Though the petitioners had given an impression when the matter was received on June 20, 2013 that the technical bids were opened on June 17, 2013 at 4:31 pm and the financial bids were opened at 4:35 pm on the same day, such position does not appear to be correct. A sheet of paper has been handed over on behalf of the Corporation indicating that the bidders' technical proposals had been opened after 2 pm on June 10, 2013. However, it appears that the list of valid technical proposals had been uploaded only on June 17, 2013, a few moments prior to the financial bids being opened on the same afternoon.
The petitioners suggest that the Corporation, guided by extraneous considerations and seeking to unduly favour some of the other bidders, went out of its way to disqualify the petitioner company and rejected its technical proposal so that, despite the petitioner company quoting the lowest in most categories, the favoured contractors could be awarded the work. The petition alleges mala fides not only on the part of the Corporation, but also on the part of another government department, the Public Health Engineering Department, in such other department causing a notice to be issued to the petitioner company on June 7, 2013 debarring the petitioner at a time when PHE or its relevant officials knew that the petitioner company's bid was to come up for consideration before the Corporation. The petitioners assert that the PHE letter of June 7, 2012 was received by the company in the evening of June 10, 2013 and, lest the petitioner company be accused of concealing relevant material from the Corporation, the petitioners addressed a letter to the Corporation on June 13, 2013 which was 4 received by the Corporation on the following day, informing the Corporation that the petitioner company had been debarred by PHE.
Though no directions for affidavits have been issued, the Corporation has forced an affidavit in on the limited aspect that there were good reasons for the Corporation to find the petitioner company's bid to be ineligible in terms of the tender conditions. Paragraph 3 of the Corporation's affidavit sets out eight grounds as to why the petitioner company's bid was ineligible. The first seven grounds and the documents in support thereof are irrelevant since they do not relate to the petitioner company being debarred or delisted or blacklisted by any government or government organization or municipality in any matter pertaining to the supply of DI pipes or like material. It is the eighth head cited by the Corporation which is of relevance:
"H. The Technical Bid of the concerned tender being No.KMC/DMC (S)/28/A137/2013-14 was opened on 10-06-2013 when the department of Public Heath Engineering dated 07-06-2013 was effective."
Since it is the Corporation's case that the petitioner company's bid was liable to be disqualified because of PHE debarring the petitioner, it was necessary to look into the records to ascertain how the Corporation came to know of the PHE decision to debar the petitioner company. The records have been carried to Court today by the Corporation and there appear to be several representations in the records made by one Balaji Enterprise to the Controller of Stores and Purchase of the Corporation. There are at least two letters of June 6, 2013 with several documents appended thereto and a letter of June 8, 2013 5 issued by Balaji. It is of significance that some of the grounds which have been recorded in the Corporation's premature affidavit find mention in the Balaji Enterprise letter of June 6, 2013. The PHE letter debarring the petitioner company is referred to in Balaji's letter of June 8, 2013. The relevant letter addressed by PHE to the petitioner company dated June 7, 2013 has been included at page 190 of the petition and the petitioners say it was hand-delivered only in the afternoon of June 10, 2013. Since such assertion of the petitioners is uncontroverted as of now there may be some justification to the petitioners' apprehension that there may be more than meets the eye. It may be necessary to ascertain how Balaji had information of the petitioner company being debarred by PHE before PHE delivered the letter to the petitioner company.
It is, thus, evident that at the time that the Corporation says that it opened the technical bids the Corporation had no knowledge of PHE debarring the petitioner company other than from the representation made by Bajali, which does not even appear to be a bidder in the subject tender, and the Corporation appears to have relied on such representation without reference to the petitioner company against whom the representation had been made. Prima facie, the Corporation appears to have deferred the opening of the financial bids beyond the announced date of June 14, 2013 to give an impression of having taken the decision to debar the petitioner after receiving the confirmation thereof from the petitioner.
It may also be of some relevance that the PHE decision to debar the petitioner company has since been set aside by this Court. 6
The petitioners demonstrate, on the basis of a chart appearing at page 228 of the petition, with information downloaded from the Corporation's website that the petitioner company's bids in seven of the nine categories were the lowest. In the two categories where the petitioner company's bids were not lower than the others, the lowest bids appear to have been made by one Electrosteel Castings Limited. Such other bidder has been impleaded in the present proceedings and submits that it made an error in furnishing its bids in respect of 250 mm and 300 mm dia pipes. ECL says that its bid for 300 mm dia pipes got inter-changed with its bid for 250 mm dia pipes such that it has mistakenly quoted much higher for the 300 mm dia pipes and much lower for the 250 mm pipes. ECL submits that it will take appropriate steps to inform the Corporation accordingly. If ECL's submission is given any credence and the lowest bids made by it in respect of these two categories are disregarded, the petitioner company seems to emerge as the lowest bidder even in these two categories.
Since it, prima facie, appears - to some degree in view of the Corporation's uncharacteristic alacrity in forcing the premature affidavit to assert its position - that the Corporation may have been guided by irrelevant and extraneous considerations in disqualifying the petitioner and finding the petitioner ineligible to participate in the financial bid, there will be an order restraining the Corporation from issuing any work order or taking any further steps in respect of the notice inviting tender which appears as annexure P-1 to the petition. If an important public work has got delayed or indefinitely suspended, the Corporation has to take the sole credit therefor. 7
The records produced have been returned to the Corporation for being brought at the time of hearing. Affidavits-in-opposition be filed within a week from date; reply thereto, if any, may be filed within a week thereafter. WP No.570 of 2013 will appear as the last "Court Application" a fortnight hence.
Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.) bp./A/s.