Gujarat High Court
Serva Group Llc vs Oil And Natural Gas Corporation Limited on 26 October, 2021
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/16230/2021 ORDER DATED: 26/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16230 of 2021
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SERVA GROUP LLC
Versus
OIL AND NATURAL GAS CORPORATION LIMITED & 1 other(s)
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Appearance:
BHASKAR SHARMA(9209) for the Petitioner(s) No. 1
MR ANKIT SHAH(6371) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 26/10/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. Draft amendment as prayed for is allowed. The necessary incorporation shall be carried out at the earliest.
2. By this writ-application under Article 226 of the Constitution of India, the writ-applicant has prayed for the following reliefs:-
"9(A) To issue a writ of mandamus or any other suitable writ, direction or order directing the Respondent no.1 to modify/ alter the anti-competitive conditions stipulated under Annexure IV Clause B.1.2.1(a)(i) & (ii), B.1.2.1 (b) (I) & (ii) and also Annexure III Clause 5, as the same are violative of Article 14 and 19 of the Constitution of India.
(B) In the alternative, issue a writ of mandamus or any other suitable writ, direction or order directing the Respondent No.1, 2 and 3 to dispose of the representations of the petitioner by way of a speaking order after granting opportunity of personal hearing and keep the opening of the technical bid pending till the Page 1 of 6 Downloaded on : Fri Oct 29 03:47:46 IST 2021 C/SCA/16230/2021 ORDER DATED: 26/10/2021 disposal of said representations.
(C) To stay the opening of the Tender No.BNCPC21001 floated by Respondent No.1 pending hearing and final disposal of this Special Civil Application.
(D) Pass any other order as this Hon'ble Court deems fit."
3. It appears from the materials on record that the O.N.G.C. vide its Tender Notice dated 22nd July 2021 has invited in the prescribed bid forms and proforma enclosed from the Bidders through E-Procurement Site through O.N.G.C. E-bidding for Procurement of 24 numbers of Cementing units including Installation, Commissioning, Training and AMC for 06 years for various Assets and Basins.
4. We take notice of the fact as stated in the tender notice that the tender would be governed by the annexures stipulated in Clause-2 of the tender document. So far as the subject matter of the present litigation is concerned, we are concerned with the detailed Scope and Technical Specifications and Bid Evaluation Criteria. These two aspects would be governed by the Annexures-III and Annexure-IV(A) respectively.
5. We have heard Mr. R.S. Sanjanwala, the learned senior counsel assisted by Mr. Ankit Shah, the learned counsel appearing for the writ-applicant.
6. What we have been able to understand from Mr. Sanjanwala is that it is not in dispute that his client is in the business of manufacturing of cementing units. The writ-applicant is a Company Page 2 of 6 Downloaded on : Fri Oct 29 03:47:46 IST 2021 C/SCA/16230/2021 ORDER DATED: 26/10/2021 based in the United States of America (USA). The manufacturing experience of the writ-applicant company is 13 years. The eligibility criteria fixed by the O.N.G.C. is quite curious. It says that any company, which is just a manufacturing company and such company wants to participate in the tender process, then it has to possess minimum 15 years of manufacturing experience. The O.N.G.C. further says that any company, which is into manufacturing and also providing service, if wants to participate, then the minimum manufacturing experience shall not be less than that of 05 years and the service providing experience shall not be less than 15 years.
7. In the case on hand, it has been fairly pointed out that having regard to the manufacturing experience of 13 years of the writ-applicant company, the company could not be said to be fulfilling the eligibility criteria. In such circumstances, even if the bid is submitted, it may be rejected at the stage of technical evaluation. However, the attempt on the part of the learned senior counsel is to convince the Court that the O.N.G.C. could not have fixed such an irrational eligibility criteria.
8. When we are talking about the rationality in the eligibility criteria referred to above, we are considering the question that if ultimately, the Corporation wants to purchase the machines, then what difference would it make whether they purchase it from a company having 13 years experience in manufacturing or 05 years experience of manufacturing. When it is a transaction of direct sale and purchase, we are not able to understand how the experience of 15 years as a service provider would be relevant. This may be Page 3 of 6 Downloaded on : Fri Oct 29 03:47:46 IST 2021 C/SCA/16230/2021 ORDER DATED: 26/10/2021 relevant if it is the case of the O.N.G.C. that it wants the seller to provide service also after the sale. That does not seem to be one of the conditions. The aforesaid is one of the aspects of the matter.
9. The second aspect of the matter as pointed out by the learned senior counsel is one regarding the Integrity Pact. This Integrity Pact is in the form of an agreement which is to be executed between the Corporation (Principal) and the Bidder/Contractor. This Integrity Pact is to be executed in view of the policy decision taken by the Central Vigilance Commission, New Delhi. Our attention has been drawn to few documents regarding the appointment of an Independent External Monitors [I.E.Ms.]. We have been given to understand that in the matters of the present type, more particularly, the tender matters, if any bidder has anything to say as regards the eligibility criteria etc. fixed in the tender documents, the issue can be taken up with the Independent External Monitor already appointed by the Central Vigilance Commission.
10. Our attention has been drawn to Page-163 of the paper book. It is a representation addressed by the writ-applicant dated 28.09.2021 to one Mr. Pradeep Kumar, Independent External Monitor. However, the learned senior counsel would submit that till this date his client has not heard anything at the end of the Independent External Monitor. Our attention has also been drawn to Page-165 of the paper-book, Annexure-F. It is a complaint lodged by the writ-applicant with the Central Vigilance Commission in this regard. However, the Central Vigilance Commission also does not seem to have responded till this date.
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11. In the last, the learned senior counsel pointed out that the last date to submit the bid is 8th November 2021. The apprehension expressed by the learned senior counsel and rightly that if the writ- applicant would submit its bid, then the same may be rejected in view of the eligibility criteria fixed and discussed above. We are of the view that the writ-applicant has been able to make out a case for issue of notice to the respondents. We are also of the view that we should permit the writ-applicant to submit its bid on or before 08.11.2021 without prejudice to his rights and contentions.
12. Let Notice be issued to the respondents, returnable on 15.11.2021.
13. We direct the respondent no.2 i.e. the Independent External Monitor to immediately look into the representation filed by the writ-applicant dated 28.09.2021, Annexure-E, to this writ- application, Page-163 and take an appropriate decision on or before 07.11.2021. We are saying so because 08.11.2021 is the last date on which the bid is to be submitted. We also direct the Central Vigilance Commission to look into the complaint lodged by the writ-applicant. The complaint as noted above is at Page-165 of the paper book Annexure-F. We clarify that any further process of the tender shall be subject to the final outcome of this writ-application.
14. Since the Central Vigilance Commission is one of the respondents and the respondent no.2 is the Independent External Monitor [I.E.M.], one set of the entire paper-book be furnished at the earliest to Mr. Devang Vyas, the learned Additional Solicitor General of India, who would be appearing for the respondents nos.2 Page 5 of 6 Downloaded on : Fri Oct 29 03:47:46 IST 2021 C/SCA/16230/2021 ORDER DATED: 26/10/2021 and 3 respectively. We request Mr. Vyas to study the order passed by this Court today and obtain necessary instructions from the respondent no.2.
15. At this stage Mr. Sanjanwala pointed out that there are few other conditions also, which could be termed as irrational. We shall look into those conditions also on the next date of hearing. All issues relating to the conditions stipulating the eligibility criteria may be raised before the respondent no.2 and the respondent no.2 shall look into the same in accordance with law.
(J. B. PARDIWALA, J) (NIRAL R. MEHTA,J) A. B. VAGHELA Page 6 of 6 Downloaded on : Fri Oct 29 03:47:46 IST 2021