Delhi High Court - Orders
M/S Omega Elevators vs Union Of India & Anr on 8 September, 2021
Author: Vipin Sanghi
Bench: Vipin Sanghi, Jasmeet Singh
$~10.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5385/2021
M/S OMEGA ELEVATORS ..... Petitioner
Through: Mr. Bhargav Hasurkar & Mr. Anshul
Narayan, Advocates.
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Mr. Chetan Sharma, ASG with
Mr.Apoorv Kurup, Mr.Jatin &
Ms.Vartika Mishra, Advocates.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE JASMEET SINGH
ORDER
% 08.09.2021 C.M. No. 16648/2021
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
W.P.(C) 5385/2021 and C.M. Nos. 16647/2021
3. The petitioner has preferred the present writ petition to seek quashing of the E-Tender Notice/ Detailed Notice Inviting Tender dated 16.03.2021, as well as the corrigendum dated 07.05.2021 issued by respondent No.2, i.e. AAD(Contracts) (Headquarters), Delhi Zone of the respondent Military Engineering Services (MES) for upgradation of Lift at Carriappa Vihar and Signature Not Verified Digiltally Signed By:BHUPINDER SINGH ROHELLA Signing Date:10.09.2021 16:38:54 intercom system at Rangpuri GE (U) plant & machinery, Delhi Cantt. The petitioner seeks a direction that the corrigendum dated 07.05.2021, whereby the petitioner's name has been removed from the approved brands/ list of makes for elevators/ Lifts is arbitrary and tantamounts to the petitioner's blacklisting. The petitioner seeks a direction that respondent No.2 should consider the petitioner OMEGA Elevators at par with other bidders to offer its bid for the tender in question.
4. The respondent had issued the aforesaid tender for procurement of lift/ elevators with intercom system. The 13 brands of elevators - which were enlisted in the tender itself, were the following:
"SRL.NO. PRODUCT DESCRIPTION NAME OF FIRM
1 LIFTS M/S KONE INDIA
2 LIFTS M/S SCHINDLER INDIA PVT
LTD
3 LIFTS M/S KINETIC HYUNDAI
ELEVATORS MOVEMENT
TECH LTD
4 LIFTS M/S HITACHI LIFTS INDIA
PVT LTD
5 LIFTS M/S MISTUBISHI ELEVATOR
INDIA PVT LTD
6 LIFTS M/S OTIS ELEVATOR
COMPANY INDIA PVT LTD
7 LIFTS M/S FUJITECH INDIA PVT
LTD
8 LIFTS M/S JOHNSON LIFTS PVT
LTD
9 LIFTS M/S THYSSENKRUPP
ELEVATORS INDIA PVT LTD
Signature Not Verified
Digiltally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:10.09.2021
16:38:54
10 LIFTS M/S OMEGA ELEVATORS
11 LIFTS M/S ESCON ELEVATORS PVT
LTD
12 LIFTS M/S LT ELEVATORS PVT LTD
13 LIFTS M/S IES ELEVATORS"
5. Thus, the petitioner's brand was also enlisted as one of the approved brands at serial No.10 of the aforesaid tabulation.
6. The respondent then proceeded to issue the impugned corrigendum, whereby 10 of the aforesaid 13 brands were knocked out and only three brands of elevators were specified, namely, M/s Kone India, M/s Schindler India Pvt. Ltd. and M/s Otis Elevator Company India Pvt. Ltd. Aggrieved by the said exclusion, the petitioner has preferred the present writ petition.
7. The submission of learned counsel for the petitioner is that the present case is squarely covered by the Division Bench judgment dated 04.06.2021 of this Court in the petitioner's own case, i.e. M/s Omega Elevators Vs. Union of India & Another, W.P. (C.) No. 2060/2021. In that case as well, the petitioner's brand was excluded by the tender inviting authority, and this Court held that such exclusion is discriminatory.
8. Learned counsel for the petitioner has further submitted that the respondents themselves have issued an inter-departmental communication on 04.01.2021, which states that "Henceforth, the makes of OEMs of elevators shall not be approved by this HQ. QR of OEMs of elevators shall be specified in tenders and makes shall be approved by the accepting officers. Minimum QR of OEMs of elevators for installation and Signature Not Verified Digiltally Signed By:BHUPINDER SINGH ROHELLA Signing Date:10.09.2021 16:38:54 maintenance of elevators is enclosed. This office letter No.43285/CMPT/63/Des-2 dated 01 Oct 2020 be treated as cancelled."
9. Learned counsel submits that the meaningful way to read the aforesaid communication is that based on the Qualification Requirements (QRs) stipulated, the accepting officers shall specify the brands/makes. The accepting authority cannot exclude makes/ brands which meet the specified QRs. Thus, the respondents could not have invited the tender with reference to any particular brand without reference to the QRs, and without finding that the excluded makes/brands do not meet the specified QRs. He submits that the respondents are entitled to lay down the specifications, and whichever bidder meets the specifications should be entitled to participate in the tendering process.
10. Our attention has also been drawn to the directions issued from the Office of Hon'ble the Prime Minister of India dated 03.01.2019 by the then Principal Secretary to Hon'ble the Prime Minister, Mr. Nripendra Mishra. This communication/ direction addressed to the government Ministries/ Departments, reads as follows:
"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.
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 Signature Not Verified Digiltally Signed By:BHUPINDER SINGH ROHELLA Signing Date:10.09.2021 16:38:54 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(111) of the GFR 2017, the technical specifications shall, to the extent practicable, the based on the national technical regglations 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 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."
11. Though the respondents have filed their counter-affidavit, the aforesaid aspects have not been answered.
12. In our view, the present case is squarely covered by our decision in M/s Omega Elevators Vs. Union of India & Another, W.P. (C.) No. 2060/2021, wherein we have held as follows:
"25) A bare perusal of the entire set of office orders/ letters, clearly demonstrate the shift and the intent of the Govt. of India to:
a. Desist from specifying manufacturers in matters of public Signature Not Verified Digiltally Signed By:BHUPINDER SINGH ROHELLA Signing Date:10.09.2021 16:38:54 procurement through tender.
b. To ensure that there is no unreasonable exclusion of local suppliers who would otherwise be eligible, beyond what is essential for ensuring quality or credit worthiness of the suppliers.
26) The actions of the respondents in specifying five manufacturers to participate in the tender and excluding the other suppliers/ prospective bidders, such as the petitioner are clearly violative of the order dated 29.05.2019 of the Ministry of Commerce and Industry, Govt. of India. In none of the counter affidavits, it has either been alleged or shown to us that no other supplier/ prospective bidder, such as the petitioner, meets the eligibility criteria on matters of turnover; production capability; financial strength, or; technical specification and capability.
27) In this view of the matter, the action of the respondent in limiting the tender to five manufacturers and excluding the petitioner cries foul of the order dated 29.05.2019 passed by M/o Commerce and Industry, Govt. of India and order No. DG/SE TAS(E)/Enlist. Rules-Lifts-A/03 dated 10.01.2019 passed by CPWD.
28) The letter of the Principal Secretary to the Prime Minister dated 03.01.2019, further clears the misconceptions, if any, when it clarifies that indicating foreign make/ brands in the tender, and thereby excluding local manufactures and service providers, is in violation of Public Procurement (Preference to Make in India), Order 2017 and Rule 144(i)(b) of General Financial Rules 2017. In fact, said letter states that indicating foreign makes or brands in a tender is a restrictive and discriminatory eligibility criteria aimed at excluding local manufacturers/ service providers which should be avoided."
13. We are surprised that inspite of the clear directions contained in the inter-departmental communication dated 04.01.2021, and the communication dated 03.01.2019 issued from the office of Hon'ble the Prime Minister of India, as also the emphasis being laid by the Government Signature Not Verified Digiltally Signed By:BHUPINDER SINGH ROHELLA Signing Date:10.09.2021 16:38:54 on the "Make in India" Policy, such like instances keep cropping up from time to time. We agree with the submission of learned counsel for the petitioner that the accepting authority has to be guided only by the QRs and no make/ brand which fulfils the QRs can be prevented from participation in the tendering process, unless the prospective bidder is, otherwise, disqualified for any reason under the terms of the Tender. The approval of the makes/ brands by the accepting authority has to be guided only by the QRs which are specified.
14. We, accordingly, quash the impugned corrigendum. The respondents shall, accordingly, issue fresh corrigendum, thereby laying down the qualification requirements, if not already laid down in the tender, and invite bids from all bidders who are able to meet the aforesaid criteria and satisfy the eligibility conditions. Consequently, the date for submission of bids be extended, giving sufficient time to all the bidders.
15. Let a copy of this judgment be sent to the Prime Minister's Office for information, since the tender was invited contrary to the communication dated 03.01.2019 and against the "Make in India" policy declared by the Government of India.
16. The petition stands disposed of in the aforesaid terms.
VIPIN SANGHI, J JASMEET SINGH, J SEPTEMBER 08, 2021 B.S. Rohella Signature Not Verified Digiltally Signed By:BHUPINDER SINGH ROHELLA Signing Date:10.09.2021 16:38:54