Madhya Pradesh High Court
Hec Infra Projects Ltd. Through Anil ... vs Urban Administration And Development ... on 22 January, 2016
Author: P.K.Jaiswal
Bench: P.K.Jaiswal
-: 1 :- Writ Petition No.8183 of 2015 (O).
HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH INDORE
( Division Bench )
( Hon'ble Shri Justice P.K.Jaiswal and Hon'ble Shri
Justice Jarat Kumar Jain )
Writ Petition No.8183 of 2015 (O).
HEC - INFRA Projects Ltd.
VERSUS
State of M. P. and 2 others
*****
Shri A.S.Garg, learned Senior Counsel with Shri Piyush Shrivastava,
learned counsel for the petitioner.
Shri Rohit Mangal, learned Govt. Advocate for the Respondent
No.1/State.
Shri Kailash Vijayvargiya, learned counsel for the Respondent
No.2/UMC.
Shri S.C.Bagadiya, learned Senior Counsel with Shri Sourabh Nema,
learned counsel for the Respondent No.3.
*****
O R D E R
( Passed on this 22nd day of January, 2016 ) Per Shri J.K.Jain, J. :
THIS writ petition under Article 226 of the Constitution of India has been filed for issuance of directions to quash the tender opened in favour of Respondent No.3 and to direct the Respondent No.2 to re- allot the tender after re-assessing the Technical evaluation in view of the specifications given in the tender, among rest of the bidders.
-: 2 :- Writ Petition No.8183 of 2015 (O).
[2-a] The brief facts of this petition are that the Respondent No.2. i.e. Ujjain Municipal Corporation had issued a notice inviting tender bearing No.UMC/Tender No.1028 for Manufacture, Supply, Installation, Operation and Maintenance of LED Type Street Lighting and Flood Lighting Works for Simhasta Mela, 2016 at Ujjain (MP) on 10.04.2015. Initially the date of submission of tender was 14.05.2015, but subsequently the date of submission as well as opening of tender was extended time to time and it was fixed 01.06.2015 for submission of tender and 02.06.2015 for opening of tender. Probable amount of contract is Rs.2389 lacs. As per notice all documents will have to be submitted on-line only and no document will be accepted in physical form. Evaluation criteria and selection procedure has been prescribed as under :-
Step 1 : Evaluation of Bid document with regard to Technical Specifications and design submitted by bidders.
Step 2 : Aesthetic Selection and Technical demonstration and Performance Testing.
[2.b] The petitioner deals with the Brand "Keslec Schreer". The petitioner submitted all required documents along with technical specification reports. Respondent No.3
- HPL Electric & Power Pvt. Ltd. and 4 other Companies have also submitted tenders. After initial scrutiny, out of 6 bidders, only 4 of them found qualified for technical evaluation. All the 4 bidders were called for demonstration for the purpose of Technical Evaluation on 28.08.2015. All
-: 3 :- Writ Petition No.8183 of 2015 (O).
the 4 bidders participated in the demonstration meeting on 28.08.2015. The petitioner successfully achieved the target as per the parameters prescribed in the tender documents, but
2 bidders, namely HPL - Respondent No.3 and Goldwyn could not fulfill the requirements and various shortcomings were found in their products/technical documents. In this regard, minutes were signed by the representatives of all the bidders (Annexure-P/5). Then a second time demonstration was directed to be done by all the bidders on 02.09.2015. Though HPL (Respondent No.3) and Goldwyn were not having the products of the required specifications as per the tender, even then they were given another chance to fulfill the shortcomings in their products also after the due date, which is not permissible even in view of the CVC guidelines. On 02.09.2015 in the demonstration for technical evaluation of products and their performance, the results of 2 bidders, namely HPL and Goldwyn, were highly deviated from the specifications given in the tender documents. Therefore, on 03.09.2015, the petitioner submitted an objection (Annexure-P/6) to the Commissioner, Municipal Corporation, Ujjain with regard to deviation from the prescribed criteria mentioned in the tender on various points. Few of them are as under :-
"(a) Flood light of 260 Watts is required, but the catalogue of HPL clearly shows that they have 45, 60, 90 and 160 Watts of Flood lights only.
(b) LED Flood light, the unit shall consist of separate optical and remote control gear compartments. But the sample submitted by HPL has no such separate unit.
-: 4 :- Writ Petition No.8183 of 2015 (O).
(c)The housing should be with supplier's word mark/ embossing on the die-cast housing. Even then it is clearly shown from the photographs that only sticker/screen print is affixed on the sample product of HPL.
(d) The Lux level for Flood light should be average 50, but it has been relaxed to 35 at the time of demonstration, while it cannot be done as it will give the poor performance in terms of lighting levels."
[2.c] Thus, despite so many shortcomings, shown in the objection letter, have been ignored and the Respondent No.2 has cleared the technical bid of Respondent No.3. The petitioner was also qualified as its technical bid has been accepted and he was communicated on 07.09.2015 by e-mail. On very next day i.e. on 08.09.2015 the petitioner moved a letter (Annexure P/12) to Respondent No.2 to clarify various points regarding their objections before opening of the financial bid. However, ignoring all the objections of the petitioner, a financial bid was opened in evening of 08.09.2015, whereby the Respondent No.3 got the tender. From these facts it is clear that the authorities have acted arbitrarily and illegally to favour the Respondent No.3 despite number of shortcomings and accepted technical bid even by relaxing the criteria prescribed in the tender. Though, there is no provision of such relaxation in the specifications. The petitioner has filed an application under RTI on 11.09.2015, to get the documents of Respondent No.3 but the documents were not supplied and the application was rejected on frivolous grounds. As per the guidelines of Central Vigilance Commission (CVC) Government of India, no relaxation is
-: 5 :- Writ Petition No.8183 of 2015 (O).
permitted. In such circumstances, it is prayed that the tender opened in favour of the Respondent No.3 on 08.09.2015 be quashed and the Respondent No.2 be directed to re-allot the tender after re-assessing the technical evaluation in view of the specifications given in the tender, among rest of the bidders.
[3] The stand of Respondent No.2 is that, a tender notice was issued and subsequently a corrigendum was issued. In response to tender notice, 6 tenders were received on 02.06.2015. After technical evaluation of the tenders, 4 companies including petitioner & Respondent No.3 were found eligible for demonstration. In the demonstration, Ampire Industries Ltd., Mumbai (Goldwyn) was not found fit as per specification shown in the tender notice. Thereafter, technical bid evaluation report has been prepared by the consultant. That report has been examined by the Committee headed by Superintending Engineer and thereafter on their recommendations financial bid was opened. The objections raised by the petitioner was examined by the consultant. In regard to consultant's report, opinion was sought from the engineers of the department. It was found that the objections are without any basis as the Respondent No.3 has filed the recognized laboratory test report in support of products. There was lowest rate of the Respondent No.3, therefore, tender of Respondent No.3 was accepted. Thereafter on 30.11.2015 agreement was executed and on 02.12.2015 "Work Order" was issued to Respondent No.3. It is specifically denied that the Respondent No.2 has
-: 6 :- Writ Petition No.8183 of 2015 (O).
arbitrarily or collusion with Respondent No.3 has relaxed the specifications shown in the tender notice and awarded the tender in favour of Respondent No.3. In support they have filed the copy of note-sheets, consultant's report and test reports submitted by the Respondent No.3. Hence, the petition has no merit.
[4.a] Respondent No.3 in reply has taken a preliminary objection that the tender opened in favour of Respondent No.3 on 08.09.2015; whereas after a delay of about two and half months this petition is filed. Therefore, the petition be dismissed on the ground of delay and latches. There is an arbitration clause in the tender. Therefore, any dispute with regard to the specification can only be challenged before the Arbitration Tribunal. Therefore, the petitioner deserves to be dismissed on this ground. It is submitted that the bid of Respondent No.3 had fulfilled all the terms and conditions and the evaluation criteria and selection procedure. The allotment of the tender in favour of Respondent No.3 is in accordance with the terms and conditions of the tender. It is stated that in the catalogue of Respondent No.3, the Flood light of 260 Watts was not available because the catalogue is prepared by the company for the promotion of the products which are usually in demand in the market. Therefore, mere non mention of the product in the catalogue does not mean that the Respondent No.3 is not in a position to manufacture the same. Respondent No.3 is having R/D facility to develop different products and in support R/D certificate, ISO certificates and
-: 7 :- Writ Petition No.8183 of 2015 (O).
the test reports for 260 Watts along with the reply is attached. The petitioner has not mentioned the correct specification of the tender document. The correct specification with respect to luminaire configuration is as under :-
"Multipurpose high power LED liminaire. It shall consist of separate optical and control gear compartment. It should be easily replaceable in the filed condition. Remote driver box for outdoor and indoor versions."
[4.b] The sample submitted by the Respondent No.3 has separate compartment of optical and control gear but both the separates compartments are in the one unit. This does not mean that they are not as per specification. Mere filing of the photographs and comparison does not show that the petitioner's product are as per specification. The Respondent No.3's product bears their company word mark/logo which is actually permanent marking through engraving. It is not a sticker/ screen printing as contended by the petitioner. It is a permanent mark on the product which fulfill the specification of the tender condition. It is submitted that actually the luminous flux is the total light out put at source. The lux level is total light available on the road. The requirement of the lux level as per tender condition is 50 +/- 10% for 490 Watts flood lights. As per corrigendum issued 2 x 260 Watts flood light was also allowed in place of single 490 Watts. Therefore, the requires lux level for single 260 Watts was accordingly reduce to half
-: 8 :- Writ Petition No.8183 of 2015 (O).
i.e. 25 lux +/- 10%. However, the Respondent No.2 put more stringent terms requiring lux of 35 for 260 Watts. The Respondent is manufacturing the flood light having the lux level 35 x 2 = 70 which is more than required in the tender condition. The quality cannot be judged by bare perusal of photographs. The petitioner has prayed for stay of the work order, the same has already been issued. That the Simhasta Mela in Ujjain is scheduled to be held from April, 2016 to May, 2016. Respondent No.3 has to manufacture, supply, install and operate the LED type street lighting and flood lighting within a period of two and half months. This entire procedure require a huge amount of money. The Respondent No.3 has invested crores of rupees for procuring the raw material and the production of material has already started so that the work can be completed within the stipulated time period under the agreement. As such, any orders at this stage would cause the process of the execution of the tender to be set back by at least three months. There is no arbitrariness in the process of award of the tender, nor has the petitioner been able to show that tender terms had been violated. If the writ petition is allowed, it would delay the execution of the tender and would be a heavier burden on the public exchequer.
[5.a] The petitioner has filed rejoinder to the reply filed by the Respondent Nos.2 and 3 and submitted that the Respondents are ultimately failed to give any satisfactory answer as they have no basis in rebuttal of the averments made in the petition. From the filing of note-
-: 9 :- Writ Petition No.8183 of 2015 (O).
sheets and documents filed by the Respondent No.2, it reflects that Respondent No.2 has given various relaxation to the Respondent No.3 for passing them in technical evaluation. So far as the objection of Respondent No.3 that the petition has been filed at a belated stage is concerned, it is submitted that on 03.09.2015 the petitioner has filed his objections (Annexure-P/6) before opening of the technical as well as financial bid. The petitioner had raised specific objections with regard to technical shortcomings in the products of Respondent No.3. On 11.09.2015, the petitioner has filed an application under RTI Act for getting the relevant record from the Respondent No.2. The petitioner was waiting for obtaining the relevant documents from Respondent No.2/UMC and the petitioner also came to know that the tender was sent for the approval of "Mayor-in- Council" and the MIC returned the tender in the last week of September. In these circumstances, the petitioner was under
the hope and trust that the tender be cancelled, but it was not cancelled by the Respondent No.2. Thereafter, on 04.11.2015 the application under RTI Act was rejected by the Respondent No.2 without supplying any documents.
Therefore, another application was immediately filed under RTI Act. Thereafter the petitioner came to know on 06.11.2015 that the tender was approved by the Mayor-in- Council and, therefore, the petitioner managed to file this petition. Respondent No.3 was permitted to resubmit the sample by the Respondent No.2, which is absolutely impermissible in tender procedure. From the technical
-: 10 :- Writ Petition No.8183 of 2015 (O).
evaluation report (Annexure-P/19), it is clear that the product of Respondent No.3 had no separate compartment and did not fulfill the criteria, but the Respondent No.2 advised them and permitted them to resubmit the sample. The Respondent No.3 has failed to show that they had submitted all the documents regarding technical evaluation and design along with the tender as per requirement. The test reports were issued on 03.09.2015 & some reports on 08.09.2015 i.e. on the date of opening of the financial bid; whereas the technical bid was opened on 04.09.2015. Then how these reports have been accepted ignoring the tender conditions of prior submission of documents. Test report dated 30.05.2015 is being shown, in which at Sl.No.4 'Impact Resistance Test' result is shown, in Column No.2, impact energy is shown as 2 J i.e. 2 Joules, while as per specification for IK08 it should be tested at 5 Joules. Test report dated 30.05.2015 is annexed in which the measurement results at Sl.No.8, Colour Rendering Index is given as 70.5, while the same document has been annexed in reply filed by the Respondent No.2/UMC in which the CRI is shown 69.5, while as per specifications given in the tender, it should be more than 70. In these circumstances it is clear that the Respondent No.3 has tried to manipulate the document for fulfilling the criteria. It is clear from the documents submitted by Respondent No.3 the design of LED lights as under :
For 7.5 mtr. wide road- submitted design of 109.2 watt LED. For 18 mtr. wide road- submitted design of 19 watt LED. For 24 mtr. Wide Road- submitted design of 123.2 watt LED.
-: 11 :- Writ Petition No.8183 of 2015 (O).
As per the technical evaluation report (Annexure-P/19), the demo was done with 120 Watts and 150 Watts of LED. How they were permitted to demonstrate with other wattage of LED light without submitting the designs ? Even the design submitted were not in accordance with the specifications given in the tender documents.
[5.b] The contention made in para 10 of reply of Respondent No.3 that Respondent No.2 after receiving the objections, has communicated and asked for clarification from Respondent No.3 and they submitted the detailed explanation also. It appears that it is a false statement as it is not mentioned that when the explanation was called and when it was given and what was the finding given on it. It is nothing but the after thought, as no where in the reply filed by Respondent No.2, such explanation from respondent No.3 is referred. Even it is absent from official note-sheet. Respondent No.2 has tried to show that they sought the clarification of expert committee upon the objections raised by the petitioner but the same has not been communicated to the petitioner. So far as the official note-sheet is concerned in most of the columns of the clarification, it is mentioned that the Respondent No.3 has submitted an affidavit and only considering the affidavit, the deviation was ignored and the shortcoming was found satisfactory. Not only this, but the same column shows that the documents were accepted at subsequent stage. It is clear that the clarifications are not satisfactory and found satisfactory in favour of the Respondent No.3 just to give them the illegal benefits to
-: 12 :- Writ Petition No.8183 of 2015 (O).
allot the contract. The Respondent No.3 has not mentioned the date on which the agreement was executed, the work order was issued and bank guarantee submitted. But from their own documents, it is clear that all the three activities have been done on the same day i.e. 02.12.2015, which is after filing of this petition.
[6] The Respondent No.3 has filed the reply of rejoinder filed by the petitioner and denied all the averments stated in rejoinder. It is also submitted that the petitioner has tried to suppress the material facts and has not come with clean hands. The relaxation has been given by the Respondent No.2 to all bidders to have expeditious acceptance of tender, quick finalization of transaction and to have competitive bids for Simhasta Mela. Therefore, this action cannot be termed arbitrary or illegal.
[7] Electrical Consultant of Respondent No.2 - Mr. Sandeep Mathur has filed a detailed affidavit to demonstrate that he has examined the objections raised by the petitioner in regard to specification of goods and found that there was no deviation in the specification.
[8] Mr. Dayal Hussain Siddiqui, who is Executive Engineer in Respondent No.2/UMC has filed an affidavit in support of the reply submitted by the Respondent No.2.
[9] Learned Senior Counsel for the petitioner submitted that from the very inception of the tender process, the officers of Respondent No.2 were inclined to award the tender to Respondent No.3. Therefore, they have issued a
-: 13 :- Writ Petition No.8183 of 2015 (O).
corrigendum and changed the specification of some goods. On 28.08.2015 there was a meeting of representatives of the bidder companies, in that meeting, it was directed to respondent No.3 that it is compulsory that the driver compartment should be insider the light of 260 Watts flood light.
[10] Learned Senior Counsel for the petitioner submitted that on 02.09.2015, in the demo meeting it was found that the Respondent No.3 has unable to fulfill the specification given in the tender notice even though his technical bid was accepted, then the petitioner has sent an objection by e-mail to Respondent No.2 on 03.09.2015 (Annexure-P/6) in which it is pointed out that there are deviations in the samples submitted by the Respondent No.3. It is further submitted that as per tender at Serial No.22, total system Wattage of fixture including driver specifications provided 470 Watt +/- 10 per cent. At Serial No.30 CRI more than 70 and Serial No.32 Lux level for the given parameters, 50 Lux +/- 10 per cent; whereas the Respondent No.3 has not submitted the sample for demonstration at per specification. Even though without seeking any clarification from the Respondent No.3 or sending theobjections for examination by technical expert, Respondent No.2 has opened the technical bid and financial bid. It shows that there was a collusion between Respondent No.2 and Respondent No.3. It is further submitted that Hon'ble Supreme Court in the case of Harminder Singh vs Union of India [Air 1996 SC 1527] held that, "if tenders were not
-: 14 :- Writ Petition No.8183 of 2015 (O).
submitted in accordance with the terms and conditions of the tender notice then such tender can not be accepted though tender was lowest.
[11] Learned Senior Counsel for the petitioner submitted that after opening of financial bid, the objections raised by the petitioner were sent to technical expert, but the technical expert has overlooked these objections on the basis that Respondent No.3 has attached the test report and filed the affidavit stating that the company will supply the goods as per the specification. From the test reports, it is clear that these reports were not filed along with the tender as these test reports were not in existence when the tender was submitted but procured after taking objection by the petitioner.
[12] Learned Senior Counsel for the petitioner further submits that CVC has prepared the compendium lists illustrative check-points in public procurement for the purpose of ensuring fairness, equity and transparency. In this guideline, it is provided that tender evaluation and award of work is most sensitive area susceptible to corruption. To ensure that evaluation is done in most transparent, fair and open manner, in this regard some points are mentioned which should be taken care of. One of them is that ensuring that conditions/specifications are not relaxed in favour of contractor to whom the work is being awarded. Whereas in the present case Respondent No.2 has relaxed specifications while awarding the tender in favour of Respondent No.3. Thus, they have ignored the guideline of
-: 15 :- Writ Petition No.8183 of 2015 (O).
CVC and awarded the work to respondent No.3.
[13] Learned Senior Counsel submits that the financial tender was opened on 08.09.2015, for about two months they have not issued work order but after filing of this petition on 02.12.2015, they have executed the agreement and the bank guarantee was submitted by Respondent No.3 and on the same day work order was issued by Respondent No.2. It clearly shows that there was a collusion between the Respondent No.2 and Respondent No.3. The Respondent No.2 has arbitrarily awarded the tender to Respondent No.3 though the Respondent No.3 is not in a position to fulfill the specifications as per the tender notice. Therefore, the tender opened in favour of the Respondent No.3 be quashed and the Respondent No.2 be directed to re-allot the tender after re-assessing of the technical evaluation.
[14] Learned counsel for the Respondent No.2/ UMC submits that Respondent No.2 has not relaxed any specifications of goods in favour of Respondent No.3 and all the objections raised by the petitioner are clarified by the Respondent No.3 and they have filed the report of Bharat Test House Pvt. Ltd. and also filed the affidavit to the effect that they will supply the goods as per the specifications shown in the tender. The Respondent No.2 has followed the procedure as per the tender. The allegation about collusion with the Respondent No.3 is baseless and the objection has no merit. Thus, the petition be dismissed.
[15] Learned Senior Counsel for the Respondent
-: 16 :- Writ Petition No.8183 of 2015 (O).
No.3 submits that the allegation that Respondent No.3 has not fulfilled the specification shown in the tender notice is baseless. The company has submitted the test reports which shows that the goods are as per specification and in support they have filed affidavits to this effect that they will supply the goods as per specification shown in the tender. It is also suggested that the Respondent No.2 may be directed to submit an affidavit that they will accept the goods only when the goods are as per specifications shown in the tender. Besides this, the work order has already been issued in favour of the Respondent No.3. Respondent No.3 has started the work and in case at this stage if the tender is quashed, then re-tendering will take another 3 months; whereas the Simhasta Mela is going to be started in the month of April, 2016. Therefore, in the large interests of the public, it is not proper to quash the tender awarded in favour of Respondent No.3, otherwise also the Respondent No.3 has also invested crores of rupees for manufacturing the goods.
[16] Learned Senior Counsel for the Respondent No.3 submits that the Hon'ble apex Court in the case of Siemens Public Communication Networks v/s Union of India [ 2008 (14) SCALE 513] held that the scope of judicial review and the interference by superior Courts in the award of contracts is limited if two views are possible and no mala fides or arbitrariness is alleged or shown, there is no scope for interference with the view taken by the authorities inviting tenders. In the present case, petitioner has failed to
-: 17 :- Writ Petition No.8183 of 2015 (O).
show that there is any arbitrariness or mala fides on the part of Respondent No.2 in awarding the tender in favour of Respondent No.3.
[17] After hearing learned counsel for the parties, we have carefully examined the records.
[18] We would like to mention some relevant dates, which are as under :-
Chronology of Events Date Events 14.05.2015 Notice inviting tender was issued 01.06.2015 Petitioner and Respondent No.3 submitted the tender 28.08.2015 & Technical evaluation was done 02.09.2015 03.09.2015 Objections submitted by the petitioner 04.09.2015 Technical bid was opened 07.09.2015 Communicated to the petitioner that their technical bid has qualified 08.09.2015 Financial bid opened and the tender of Respondent No.3 found lowest 15.09.2015 Consultant submitted the report to Respondent No.2, in regard to objections taken by the petitioner 24.09.2015 Consultant's report examined by the Executive Engineer and Superintendent Engineer of Respondent No.2 27.11.2015 The present writ petition has been filed 30.11.2015 Agreement executed by Respondent No.3 in favour of respondent No.2 02.12.2015 Work order has been issued by Respondent No.2 in favour of Respondent No.3 [19] We have considered the preliminary objections raised by Respondent No.3 in regard to delay and arbitration clause. It is clear that after demo meeting on 02.09.2015, just next day on 03.09.2015, the petitioner has
-: 18 :- Writ Petition No.8183 of 2015 (O).
sent a letter to Respondent No.2, pointed out the deviations from the specification in regard to sample of Respondent No.3 but Respondent No.2 has not immediately taken any action in this regard and proceeded further. Thereafter, on 04.09.2015 technical bid was approved. Again the petitioner has sent a letter (Annexure P/12) to Respondent No.2 on 08.09.2015, pointed out that the products of Respondent No.3 are not complying with the technical conditions of the tender. On 08.09.2015 he was communicated about the financial bid. Then on 10.09.2015 and 14.09.2015 they sent letters to Respondent No.2. On 11.09.2015, they submitted an application (Annexure P/15) under Right to Information Act for obtaining the test reports and tender document, submitted by the Respondent No.3. On 04.11.2015 Respondent No.2 has informed the petitioner that the application under Right to Information Act has been dismissed. Then, on 27.11.2015, they have filed this petition. In such circumstances, it can not be said that the petitioner has slept over its rights for unreasonably long period. So far as the arbitration clause is concerned, this cause will come in to play only when after issuing work order there is any dispute between the Respondent No.2 and Respondent No.3. Thus, there is no merit in the preliminary objection, raised by the Respondent No.3.
[20] It is an admitted fact that Respondent No.2 had issued a notice inviting tenders on 10.04.2015 for manufacture, supply, operation and installation of LED type street lightening and flood lightening work for Simhast Mela
-: 19 :- Writ Petition No.8183 of 2015 (O).
2016 at Ujjain. Initial the date of submission of tender was 14.05.2015 but subsequently the date of submission and opening of tender was extended time to time and it was fixed 01.06.2015 for submission of tender and 02.06.2015 for opening of tender. Probable amount of contract is Rs.2389/- Lacs. As per the tender notice, documents need to be submitted along with tender bid for LED. However, by issuing by corrigendum on 20.05.2016, it was provided that the documents needs to be submitted along with tender bid for LED or latest along with the lightening fixture samples submitted for demonstration. In the tender notice, there is a condition that the bidder shall have to submit the test reports with the bid.
[21] Admittedly, Respondent No.3 has not submitted that test reports along with the bid. Respondent No.3 has submitted the test reports when the petitioner has taken objection vide Annexure P/6 dated 03.09.2015. From the perusal of these reports, it is clear that Bharat Test House Pvt. Ltd. has issued test report on 30.05.2015, 02.09.2015 and 08.09.2015. Thus, it is clear that on the date of submission of tender i.e. 01.06.2015 and on the date of demonstration i.e. 28.08.2015, Respondent No.3 did not possess the test reports dated 02.09.2015 and 08.09.2015; whereas as per the tender condition, these reports should be submitted along with the tender bid or along with the samples submitted for demonstration.
[22] In second round, on 02.09.2015, the lightening fixture samples were submitted for demonstration.
-: 20 :- Writ Petition No.8183 of 2015 (O).
Respondent No.3's samples were not found as per specification, therefore, the petitioner has sent a letter (Annexure P/6) through e-mail on 03.09.2015 and pointed out that there are deviations from the tender documents. Even though, Respondent No.2 has not sought any clarification from the Respondent No.3 and has not sent these objections for examination by consultant. On 04.09.2015, opened the technical bid and qualified the lightening fixtures of Respondent No.3 and on 08.09.2015 opened the financial bid. Thereafter, the objections raised by the petitioner were sent for examination of the consultant, this procedure shows that officers of Respondent No.2 have deliberately avoided to consider the objections before opening the technical bid; whereas it was obligatory on their part.
[23] The objections raised by the petitioner and clarification of the consultant are as under :-
Serial Parameter Specifications Deviation in HPL Clarification No. of as conveyed by Tende other bidders M/s r HEC and M/s Specifi BGC cation 1 Luminaries Multi-purpose high Control Gear box The control gear box is in separate configuration/ power LED fix on heat sink- compartment. It can be used as technical luminaries. It shall which should be remote box also if required.
requirement consist separate separate optical and control gear compartment. It should be easily replaceable in the filed condition.
Remote driver box for outdoor and indoor versions.
-: 21 :- Writ Petition No.8183 of 2015 (O).
3 Drive Current 1 Amp During Wattage Current measured during wattage
testing measured a testing is input current & not driving
1.3Amp against current of LED. Driving current is
outer limit of 1 basically current to drive LED and
Amp this depends on internal circuit
configuration. This can be measured
in laboratory only. The bidder has
given written undertaking in this
regard. At this stage of tender bid
evaluation, witness of laboratory tests by UMC is not mentioned in the tender conditions. This will be confirmed during witnessing of tests at manufacturer's factory as per tender conditions if bidder gets order.
During wattage testing following results were observed: HPL 260W flood light: Input power: 269.04 Watts, Input Voltage : 221.8 Volts, Power factor:0.965 Keselec Schreder 470W flood light: Inpur power :
470.1 Watts, Input Voltage; 234 Volts, Power factor: 0.985 Philips 240W flood light : Input power:241 Watts, Input Voltage: 237 Volts, Power factor: 0.969 Applying formula for Input current, I = Input Power / Input Voltage X power factor, we get following results :
Input current of HPL = 1.26 Amp, Input current of Keselec Schreder =2.04 Amps, Input Current of Philips =1.05Amps. Hence input current of all bidders is more than 1 Amp. This is not LED drive current. LED drive current can be measured at laboratory, which will be done at the time of factory inspection of supplier.
4 Housing / High-pressure die- Housing made of During demonstration, the Body of cast aluminum, Non aluminum representatives of HPL company had fitting polyester powder material confirmed that the material of fixture coated. Future Proof is Aluminum. The bidder has given optical unit, affidavit in this regard. The replaceable onsite, witnessing of material testing at enclosed in the laboratory by UMC is not in scope of housing with a tender bid evaluation at this stage as removable gasket. per tender conditions. This will be Gear / driver box confirmed during witnessing of tests should be coated and at manufacturer's factory as per tender made up of conditions if bidder gets order.
galvanized sheet However prima-facie upon visual metal/Aluminum inspection & magnetic test material extrusion. appears to be Aluminum.
8 Protection - IP 66 Report not Test report submitted by bidder as per IP optical submitted "kindly tender conditions.
block refer corrigendum
No.2 dated
20.05.2015, point
No.1 "Documents
along with
lightings fixture
samples for
demonstration."
-: 22 :- Writ Petition No.8183 of 2015 (O).
9 Protection- IP IP 65 for Outdoor Report not Test report submitted by bidder as per
Driver /Gear submitted "kindly tender conditions.
Box refer corrigendum
No.2 dated
20.05.2015, point
No.1 "Documents
along with
lightings fixture
samples for
demonstration."
10 Impact IK 08 Report not During demonstration, the
resistance submitted "kindly representatives of HPL company had
refer corrigendum confirmed that the fixture is IK 08.
No.2 dated Subsequently bidder has submitted
20.05.2015, point laboratory test report in this regard
No.1 "Documents and has also given affidavit in this
along with regard.
lightings fixture
samples for
demonstration."
16 Fixture "-30? C<Ta< +55? C Report not The bidder has submitted laboratory
Ambient (Outdoor) submitted "kindly test report in this regard and has also
Temperature 30? C<Ta< +45? c corrigendum No.2 given affidavit in this regard.
(Indoor) dated 20.05.2015,
point No.1
"Documents along
with lightings
fixture samples for
demonstration."
17 Operating "-30? C<Ta< +55? C Report not The bidder has submitted laboratory
temperature (Outdoor) submitted "kindly test report in this regard and has also
30? C<Ta < +45?C refer corrigendum given affidavit in this regard.
(Indoor) No.2 dated
20.05.2015, point
No.1 "Documents
along with
lightings fixture
samples for
demonstration."
23 Luminous Nominal Flux (LED) Report not As per corrigendum issued, 260W
Flux greater than 42000 submitted "kindly floor light was also allowed. Flux of
Im (The Nominal refer corrigendum 42000 was for 490W fixture. For 260
flux is an indicative No.2 dated W fixture minimum flux required is
LED flux @ tj 25 c 20.05.2015, point 22286. Where as bidder has No.1 "Documents submitted test report indicating the along with flux of 27900 Lum for their 260W lightings fixture fixture which is much higher than out samples for requirement, hence satisfactory. demonstration."
28 Lumen LM 80 approved Report not Test report submitted by bidder as per Depreciation from Third party submitted "kindly tender conditions.
(LD) Govt. Approved refer corrigendum
Performance NABL confirmed to No.2 dated
at 50,000 ILAC Hours 20.05.2015, point
No.1 "Documents
along with
lightings fixture
samples for
demonstration."
34 Make LED Make of LED: Make of LED LM 80 test report of CREE make
CREE/Philips Needs to Check LED is submitted. Hence complies.
Lurileds/Nichia/Osra
m/LG or equivalent
satisfying the
technical
requirements. The
LED shall be of
Surface Mounted
Design
-: 23 :- Writ Petition No.8183 of 2015 (O).
36 LED Drive Not more than 1A During Wattage Same as point No.03
Current and should be of testing measured a
single current rating 1.3Amp against
(option for variation outer limit of 1
of drive current Amp
through hardware /
switches is not
required)
38 Heat Well Designed Heat Sink make of During demonstration, the
Dissipation / Thermal Non Aluminium representatives of HPL company had
Heat Sink management system material confirmed that the material of fixture
with Aluminium heat sink is Aluminium. The bider has
heat Sink given affidavit in this regard. The
witnessing of material testing at
laboratory by UMC is not in scope of
tender bid evaluation at this stage as
per tender conditions. This will be
confirmed during witnessing of tests
at manufacturer's factory as per tender conditions if bidder gets order.
However prima-facie upon visual inspection & magnetic test material appears to be Aluminium.
44 Compliance RoHS for LED Compliance needs CREE make LEDs are RoHS to be check compliant. Same will be confirmed during factory inspection stage. The bidder has given affidavit in this regard. This will be confirmed during witnessing of tests at manufacturer's factory as per tender conditions if bidder gets order.
45 Surge Upto 10 KV Compliance needs During demonstration, the Protection to be check representatives of HPL company had confirmed that their has this surge protection. The bidder has given affidavit in this regard. This will be confirmed during witnessing of tests at manufacturer's factory as per tender conditions if bidder gets order.
Other Lens should be fitted Lens not fitted During demonstration , the observation mechanically mechanically & it representatives of HPL company had for street light fixed by glue. It confirmed that the lenses are lead displacement mechanically fitted. The bidder has & melting og lens given affidavit in this regard. This will be confirmed during witnessing of tests at manufacturer's factory as per tender conditions if the bidder gets order.
Luminary being The logo of company is marked on bought from the fixture. The bidder has given outside India with affidavit in this regard that the fixture the motive of is manufactured in their factory. The trading and no verification of bidder as manufacturer emboss log of of the offered fixture will be manufacturer physically checked during factory inspection stage if bidder gets order as per tender conditions. However prima-facie upon visual inspection logo appears to be a permanent marking.
[24] It reveals from the above chart that the products of Respondent No.3 are not as per specification provided in the tender and the consultant has clarified these
-: 24 :- Writ Petition No.8183 of 2015 (O).
deviations on the basis of the test reports of Bharat Test House Pvt. Ltd. dated 30.05.2015, 02.09.2015 & 08.09.2015. Such test reports can not be considered because these reports were not filed by Respondent No.3 along with the tender. Even the report dated 02.09.2015 & 08.09.2015 were not in existence when the demo meeting was held on 28.08.2015.
[25] The consultant has also considered the affidavits submitted on behalf of Respondent No.3 for deviation from specification. In the tender notice, there is no such provision. Therefore, the procedure adopted by the consultant is unusual. Thus, the Consultant's report is not in accordance with the terms and conditions of the tender notice. Therefore, such report cannot be held to be reliable.
[26] Apart from Annexure P/6, the petitioner has also pointed out that the LED flood lightening fixtures shown on Serial No.30 and 32 are not as per specification.
Sl. Parameters Specifications
No.
30 CRI > 70
32 Lux Level for the given 50 Lux +/- 10 per cent
parameters
As per tender specification, CRI is required for more than 70; whereas Respondent No.3 has submitted the report in which CRI is shown 69.5; whereas in the same report filed by the Respondent No.2 CRI is shown 70.5. Thus, there is variation in the reports. In Sl.No.32 Lux level for the given
-: 25 :- Writ Petition No.8183 of 2015 (O).
parameters is 50 Lux +/- 10% but the product of Respondent No.3 is not as per specification, even though Respondent No.2 has approved the product of Respondent No.3 in technical bid.
[27] With the aforesaid, it is clear that Respondent No.2 has relaxed the specifications provided in the tender and qualified the Respondent No.3 for technical bid. There is a specific guideline of Central Vigilance Commission, that specifications are not to be relaxed in favour of contractor to whom the work is awarded. Thus, the Respondent No.2 has violated the guidelines of "CVC".
[28] On 08.09.2015, financial bid was opened. Thereafter about two months the Respondent has not proceeded further for issuing the work order but as soon as they came to know that this petition is filed, on 30.11.2015, the agreement was executed and on 02.12.2015, Respondent No.3 has furnished the bank guarantee and on the same day Respondent No.2 has issued work order. This circumstance shows that, there is a collusion between Respondent No.2 and 3.
[29] We are conscious of the fact that the scope of judicial review and the interference by superior Courts in the award of contract is limited as held by Hon'ble Apex Court in the Case of Seimens Public Communication Netwroks (supra). However, Hon'ble Apex Court in this case held that if the petitioner has shown that there is any arbitrariness or mala-fides on the part of the agency, then the order of awarding tender can be quashed. In the present case,
-: 26 :- Writ Petition No.8183 of 2015 (O).
as discussed above, the employees of Respondent No.2 have deliberately ignored the objections about the deviation from the specification in regard to product of Respondent No.3. But without seeking any explanation from Respondent No.3 and without examining the objection by technical persons, Respondent No.2 opened the technical bid and thereafter financial bid. From the facts it is clear that, on 01.06.2015, when the Respondent No.3 has submitted the tender, on that date they didn't possess the test reports in regard to their products. However, as per the tender notice, they have to submit the test reports along with the tender. The whole process of awarding tender to Respondent No.3 is arbitrary and mala-fide. Therefore, it is liable to be quashed and hereby quashed.
[30] We direct the Economic Offence Wing ( EOW), Bhopal to investigate the matter and prosecute the erring officers of Respondent No.2 in accordance with law.
[31] We further direct the Respondent No.2 to issue the tender notice immediately and allot the tender after assessing the technical evaluation in view of the specifications given in the tender.
[32] Thus, the petition is allowed, as indicated above. No costs.
[ P. K. JAISWAL ] [ JARAT KUMAR JAIN ]
JUDGE JUDGE
Sharma AK+Adarsh/*