Gauhati High Court
Raju Ali vs The Chairman And Managing Director And 4 ... on 27 June, 2024
Page No.# 1/5
GAHC010131142024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3345/2024
RAJU ALI
S/O- LATE SAHADULLA ALI,
R/O- VILLAGE- KALGAON,
P.S AND P.O- GELAKEY, PIN-785696,
DIST- SIVASAGAR, ASSAM,
VERSUS
THE CHAIRMAN AND MANAGING DIRECTOR AND 4 ORS
OIL AND NATURAL GAS CORPORATION LTD,
DEENDAYAL URJA BHAWAN, 5A, NELSON MANDELA MARG, VASANT
KUNJ, NEW DELHI-110070
2:THE EXECUTIVE DIRECTOR
ASSET MANAGER
ASSAM ASSET
OIL AND NATURAL GAS CORPORATION LTD.
NAZIRA
PIN-785685
3:THE CHIEF GENERAL MANAGER
MM
OIL AND NATURAL GAS CORPORATION LTD.
O/O THE CGM HEAD MM
ROB II
IST FLOOR
NAZIRA
PIN-785685
4:THE CHIEF GENERAL MANAGER (DRILLING)
OIL AND NATURAL GAS CORPORATION LTD.
Page No.# 2/5
OT COMPLEX
DRILLING SERVICES
SIVASAGAR
PIN-785640
ASSAM
5:M/S ASSAM DRILLING FIELDS AND EQUIPMENT SERVICES
HAVING ITS REGHD. OFFICE NEAR KPM CHARALI
A.T ROAD
SIVSAGAR
PIN-785640
ASSAM
REP. BY ITS PARTNER
ROHIT PRASAD KAKOT
Advocate for the Petitioner : MS M HAZARIKA
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI
ORDER
27.06.2024 Heard Ms. M. Hazarika, learned senior counsel assisted by Ms. S. Newar, learned counsel for the petitioner.
By filing this petition under Article 226 of the Constitution of India, the petitioner is apprehending that the respondent authorities may re-consider the Techno-commercial bid of respondent No. 5, which was rejected earlier and open the price bid of the respondent No. 5, in view of the opinion given by the Independent External Monitors (IEM) by their communication dated 04.06.2024 (Annexure-6) and E-mail dated 25.06.2024.
Page No.# 3/5 It appears that the writ petitioner has filed this instant writ petition against the threatened action of respondent authorities to re-consider the Techno- commercial bid of respondent No. 5, who is not technically qualified as per the Technical Bid Evaluation Criteria and whose technical bid has already been rejected by the ONGC, vide their E-mail dated 29.04.2024 issued to the said respondent No. 5.
It further appears that the respondent No. 5 represented before the Independent External Monitors (IEM), who thereafter opined that ONGC has not considered work orders placed by the IIT, Guwahati and as such, advised the ONGC authorities to review evaluation of the offer given by the respondent No.
5. Ms. M. Hazarika, learned senior counsel submits that the function of the Independent External Monitors (IEM) is to examine all the representations/grievance/complaints received by them and by no stretch of imagination, they can interpret the tender conditions and or enlarge this scope of the tender condition.
Issue notice, returnable in 4 (four) weeks.
Steps be taken for service of notice upon the respondents by registered post with A/D within a period of 2 (two) days from today.
Paragraph Nos. 4 & 5 of the writ petition is reproduced hereunder for ready reference:-
"4. That the Independent External Monitors (IEM). The Independent Page No.# 4/5 External Monitors is a panel of External Monitors who are nominated by the Central Vigilance Commission, and appointed by the respective organisation. The panel of Independent External Monitors (IEM) implements the Integrity pact in respect of a particular contract and would review independently and objectively whether and to what extent parties have complied with their obligations under the pact on receipt of any complaint by them from the bidders. In order to ensure transparency, equity and competitiveness in public procurement, the Central Vigilance Commission recommends adoption and implementation of the concept of Integrity Pact (IP) by Government organisations, Public Sector Enterprises, Public Sector Banks, Insurance Companies, other Financial Institutions and Autonomous Bodies. The Integrity Pact essentially envisages an agreement between the prospective vendors/ bidders and the buyer, committing the persons/officials of both sides, not to resort to any corrupt practices in any aspect/stage of the contract.
5. That the function of the Independent External Monitors (IEM) is to examine all the representations /grievance/complaints received by them from the bidders or their authorised representative related to any discrimination on account of lack of fair play in modes of procurement and bidding systems, tendering method, eligibility conditions, bid evaluation criteria, commercial terms and conditions, choice of technology/specifications etc. and for this purpose the Independent External Monitors (IEM) are to be provided access to all documents/records pertaining to the tender for which the complaint or issue is raised before them, as and when warranted.
That out of the many roles, the main role of the Independent External Monitors (IEM) is advisory and the advice of the Independent External Monitors (IEM) is non binding on the organisations, its advice only helps in proper implementation of the integrity pact."
Page No.# 5/5 Perusal of the aforesaid averments on oath indicates that the function and role of the Independent External Monitors (IEM) is only advisory and is non- binding on the organization.
It further appears from the communication dated 04.06.2024, which is enclosed as Annexure-6 to the writ petition, that the Independent External Monitors (IEM) while examining the grievance of the respondent No. 5 as regards the rejection of their bill by the ONGC authorities, interpreted the experience clause and accordingly is advising the ONGC authorities to review the rejection. Therefore, prima facie it appears that the Independent External Monitors (IEM) has acted beyond their jurisdiction.
As such, pending adjudication of the writ petition, it is provided that the Techno-commercial bid of the respondent No. 5 shall not be re-considered by the tendering authorities without the leave of this Court.
List the matter after 4 (four) weeks on a date to be fixed by the Registry.
JUDGE Comparing Assistant