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Rajasthan High Court · body

2005 DIGILAW 3224 (RAJ)

H. R. Infotech v. J. N. V. University

2005-12-06

DINESH MAHESHWARI

body2005
Judgment Dinesh Maheshwari, J.-In the matter of awarding of contract for “Imparting Teaching in Computer Education and Maintenance of Computers, UPS and peripherals etc” by the Jai Narain Vyas University, Jodhpur. The petitioner-tenderer has submitted this writ petition aggrieved of the rejection of his offer by the respondent-University assailing the rejection as illegal, arbitrary, capricious and the members of the tender committee acting with bias. 2. Brief facts relevant for the purpose of determination of the questions involved in this writ petition are that according to the petitioner the respondent, Jai Narain Vyas University, Jodhpur with a view to provide computer education to the students enrolled in the University, invited tenders in the year 2001 and after scrutiny, entered into agreement with four different firms namely, Vital Academy, Education Linx, E- Gurucul and Diamond Finvest. According to the petitioner, the University made payment of about Rs. 412/-per student per year to the agencies. The petitioner is stated to be a sole proprietorship firm and its proprietor Shri Ravi Bhati is stated to be having the degree of B.Sc. (Computer Science) obtained in the year 1998 and immediately after completing his graduation, the proprietor of the petitioner firm worked as Junior Faculty Member with Nash Computers & Consultants Pvt. Ltd. till January, 2002 and thereafter he was appointed as Regional Manager of the firm, Vital Academy and Education Linx for the period ranging from the years 2001 to 2004 and those being the agencies which had the contract of imparting computer education to the students of the respondent-University, the proprietor of the petitioner firm was managing the affairs of the projects awarded to the said agencies and was taking care of computer education as well as maintenance of the computer systems installed in the University. 3. According to the petitioner, the respondent-University decided not to extend the agreement with the said agencies because of the irregularities committed by them and, therefore, the petitioner firm made an offer to the respondent-University of willingness to provide computer education to the students of University at the rate of Rs. 150/-per student per year. According to the petitioners, looking to the unsatisfactory performance of the agencies, the respondent-University through a notice No. 47/2005-2006 published on 21.09.2005 invited tenders from reputed and established firms for providing computer education to the students of Arts, Science and Commerce faculties. 4. 150/-per student per year. According to the petitioners, looking to the unsatisfactory performance of the agencies, the respondent-University through a notice No. 47/2005-2006 published on 21.09.2005 invited tenders from reputed and established firms for providing computer education to the students of Arts, Science and Commerce faculties. 4. The last date of submission of the tender was fixed as 110.2005 at 2:00 PM. According to the petitioner, the petitioner firm being willing and eligible to participate in the said tender, purchased the tender document which was divided in two parts, A and B. Part A consisted of 5 schedules (Schedule I to V) for technical bid. Part B consisted of single schedule i.e. Schedule VI for financial bid. Although the tenderer was required to give his campus wise bid in the financial bid (Part B), but even in the technical bid at Column 6 of the Schedule II, the tenderer was required to quote consolidated rate for all the campuses of University. This, according to the petitioner, is a clear discrepancy in the tender document. The last date for submission of tender was 110.2005 on or before 2:00 PM. The tenderer was required to submit demand drafts or cheques of earnest money i.e. 2% of the cost of the project. It was mentioned in the tender document that the technical bid envelope A will be opened on 110.2005 at 2:30 PM and the financial bid envelope B will be opened on 110.2005 at 2:00 PM in the Office of Registrar. It was further mentioned that the tender received after due date and time, unsealed or without earnest money will be rejected. However, it was nowhere stipulated in the tender document that a tender of a firm, having furnished all the requisite information and documents can be rejected at the stage of technical bid and will not be considered for financial bid. 5. According to the petitioner, the eligibility criteria as prescribed in the tender document was that the agency should have a minimum three years teaching experience in the field of computer education and maintenance of computers, UPS and peripherals etc. and should also have a turnover of Rs. 5.00 lacs or more per annum, for the last preceding three years. 5. According to the petitioner, the eligibility criteria as prescribed in the tender document was that the agency should have a minimum three years teaching experience in the field of computer education and maintenance of computers, UPS and peripherals etc. and should also have a turnover of Rs. 5.00 lacs or more per annum, for the last preceding three years. It was further stated in the tender document that competent authority can reject any tender in the interest of running the project effectively but this could have been done only after recording sufficient reasons in this regard. 6. The petitioner has averred that it quoted a consolidated rate of Rs. 114/-per student per year for all the campuses of the University, submitted necessary earnest money, certificates etc. including the professional profile of the proprietor of the petitioner firm and his experience of more than four years in the field of management of computer education project in the respondent-University itself . While submitting the complete set of Part A of the tender document alongwith enclosures as Annexure-3 and Part B of the tender document as Annexure-4 (including campus wise rates), the petitioner has alleged that the technical bid was scheduled to be opened on 110.2005 on 2:30 PM but the programme was postponed to 110.2005. On that day, the proprietor of the petitioner was present when the tenders were opened by a committee of four members. The University received six other tenders apart from that of the petitioner; one Shri Shyam Chandak made two applications in the capacity of proprietor of two different firms i.e. Vital Academy and Education Linx; similarly, one Shri Sanjay Bhandari also applied as the proprietor of two different firms namely, E-Gurucul and Diamond Finvest. 7. According to the petitioners, the Respondents No. 3 and 4 have extended undue favour to the proprietor of M/s. Vital Academy and M/s. Education Linx despite various alleged shortcomings in their tenders. The respondent-University has proceeded to reject the tender of the petitioner at the stage of technical bid itself and did not open the financial bid of the petitioner on the ground of the petitioner not having the requisite experience, although no such reasons were assigned in writing. The proprietor of the petitioner firm made a representation before the Respondent No. 2 and requested for disclosure of the reasons. The proprietor of the petitioner firm made a representation before the Respondent No. 2 and requested for disclosure of the reasons. The petitioner has referred to the three representations made in this respect as Annexure-5, Annexure-6 and Annexure-7 and it has also been contended that a member of the Syndicate of the respondent-University interfered in the matter and requested the Registrar of the University to look into the matter but the whole hearted endeavour of the petitioner has not yielded positive results. 8. The petitioner has preferred this writ petition stating to be aggrieved by the omissions and commissions of the respondent authorities as well as members of the committee on the grounds that the Committee Members have acted in an arbitrary, capricious and biased manner in rejecting the application of the petitioner; that the rejection was entirely erroneous for not assigning any reasons; that looking to the financial status and the professional profile of the petitioner firm, and so also its bid, it can be easily vouched that the interests and objects of the University in running the project would be definitely served by giving the contract to the petitioner; that the application could not have been rejected at the stage of technical bid and the petitioner bona fide mentioned the consolidated rate of Rs. 114/-per student per year in Part A of the tender document at Column 6 of Schedule II and on opening the technical bid, the members of the committee came to know that the rate quoted by the petitioner would be considerably low and the other firms would not be able to compete with the petitioner firm, therefore, a device was invented and the tender application of the petitioner was rejected at the stage of technical bid itself which was not permissible; that the illegalities were carried out with a view to extend undue advantage to other bidders; that although the application was rejected because of the firm lacking in minimum teaching experience and such premise was incorrect for the proprietor of the petitioner firm having requisite teaching experienced; that in a sole proprietory concern, the entity of the firm cannot be segregated from that of the petitioner, the rates quoted by the petitioner were less than half of the rates quoted by the other bidders and the petitioner was keen to provide best services on the minimum price but the respondent authorities have erroneously proceeded to reject the petitioners application; and that acceptance of higher rates would entail extra financial burden of more than Rs. 4.00 lacs approximately and was not in the best interest of the finances; that the entire process and system of granting the tenders, lacks transparency and clarity; and that the members of the committee have ignored the defects in the tenders submitted by the other bidders for extraneous reasons and considerations and, therefore, actions are tainted with malice; that the University intends to award contract to the same person with whose services they were not satisfied and for which fresh tenders were invited, the petitioner has, therefore, prayed that the record of the proceedings may be called and the reasons given by the respondents for rejecting the tender application of the petitioner firm may be declared illegal and invalid and the respondents may be directed to consider the tender application of the petitioner and to open its financial bid and to award the order to the petitioner, if it be found suitable otherwise. 9. 9. This writ petition was filed on 210.2005 and on 210.2005, a notice for final disposal was issued by this Court and it was directed that if the contract was not awarded in pursuance to the advertisement then the same may not be granted for four weeks. The respondents have appeared in response to the notice issued by this Court and have submitted their reply. 10. The Respondents No. 1 and 2 have raised preliminary objections that the petitioner has not come with clean hands before the Court; that the petitioner does not qualify the eligibility criterion prescribed in the terms and conditions; that as per the eligibility criterion, the offering agency should have minimum experience of three years teaching in computer education and maintenance of computers, UPS and peripherals etc. preferably in colleges and universities having record of good performance, and certificate was required to be attached. Secondly, the agency should have turnover of Rs. 5.00 lacs or more per annum in this field only for last preceding three years; that the petitioner as a firm has no experience at his credit and he had been taking classes in the computer centers established by somebody else. 11. Replying to the averments of the writ petition, it has been submitted that the University did not invite tender till 09.09.2005 and hence, the petitioners proposal was not accepted and it has been denied that the University had decided not to extend the previous agreement because of the irregularities committed by the said agency in the year 2005 in running the project. It has been submitted that the fresh tenders were invited as the terms of the previous contract had expired and the respondents were interested in giving the work to the agency who agreed to quote lowest rates; the price bid was to be opened subject to the eligibility of the firm. In envelope A Schedule I to V, earnest money and other documentations were required and in envelope B Schedule VI and price quotation lab-wise was to be put. According to the respondents, the petitioner did not fill the application form as required and was not aware how to fill up the tender form. He has wrongly mentioned price in the information proforma of envelope A instead of envelope B.” 12. According to the respondents, the petitioner did not fill the application form as required and was not aware how to fill up the tender form. He has wrongly mentioned price in the information proforma of envelope A instead of envelope B.” 12. The respondents have produced the minutes as Annexure-R/2 and have submitted that the competent authority while rejecting the tender in the interest of running the project effectively, has recorded sufficient reasons for rejection and it has been submitted that as the petitioner did not fulfil the eligibility criterion particularly of not having experience in imparting computer education as a firm, his tender was rejected and the petitioner firm does not either fulfil the requirement of turnover of Rs. 5.00 lacs per annum. The price was quoted at a wrong place although the price was required to be quoted in the price bid envelope as per Schedule V The balance sheets/reports placed by the petitioner alongwith the tender show that the turnover was from selling of the computers and not from imparting computer education as a firm and, therefore, the price bid of the petitioner was not opened. It has been submitted that a single person could be owner of the different firms, and he can submit different tenders and firms were selected on the basis of eligibility criterion specified in the tender document. The allegations of malice or mala fide have been denied and it has been asserted that earlier order for imparting training was awarded based on the lowest offer received at that time which included computers and complete infrastructure. However, this time, the computers are already available in the University and only the teaching is to be imparted as well as systems are to be maintained by the bidding firm, therefore, the rates obviously should be lower than the previous. 13. The approval of tenders has been placed on record as Annexure-R/4 and R/5 and it has been submitted that the tender of the petitioner has been rejected for valid reasons and, therefore, the writ petition may be dismissed. 14. 13. The approval of tenders has been placed on record as Annexure-R/4 and R/5 and it has been submitted that the tender of the petitioner has been rejected for valid reasons and, therefore, the writ petition may be dismissed. 14. A separate reply to the writ petition has been by the Respondents No. 3 and 4 in which, while taking the same stand as taken in the reply of Respondents No. 1 and 2, it has been further asserted that the petitioner attempted to take favour and approached Respondent No. 3 for awarding contact and an affidavit of one Chand Ratan Trivedi has been produced on record as Annexure-R/4. 15. Learned Counsel for the parties have been heard at length in relation to their respective stand as taken in the writ petition and in the replies respectively. During the course of arguments, learned Counsel for the petitioner was put the question about the status of the firm Nash Computers and Consultant Pvt. Ltd. with whom the proprietor of the petitioner has alleged to have acquired teaching experience and in response thereof the petitioner has submitted an additional affidavit on 01.02.2005, inter alia, stating thus, - “3. That the Nash Computers and Consultant Pvt. Ltd. was established somewhere in the year 1998. The Nash Computers and Consultant Pvt. Ltd. was conducting different computer courses ranging from 1 month to 3 years. Now the Director of the said Nash Computers and Consultant Pvt. Ltd is running an Educational Institution in the name of Aishwariya College of Education Sansthan in Udaipur. 4. That after completing my graduation in B.Sc. (Computer Science) from Lachoo Memorial College, I joined the Nash Computers and Consultant Pvt. Ltd has Junior Faculty Member. As a Junior Faculty Member I was taking classes of the students admitted for the 3 month courses. 5. That, at that time I was teaching two batches in a day, each consisted of 18 of 20 students. As a Junior Faculty Member, I was teaching the basics of the computers i.e. Fundamentals of Computers, Windows, Dos, MS-Office and Tally etc. I was taking theoretical as well as practical classes of the said students.” 16. Learned Counsel appearing for the respondents has produced before the Court the entire record of the tender proceedings which has also been examined. 17. I was taking theoretical as well as practical classes of the said students.” 16. Learned Counsel appearing for the respondents has produced before the Court the entire record of the tender proceedings which has also been examined. 17. Having heard learned Counsel for the parties and having examined the entire record, this Court is clearly of opinion that It cannot be said that the respondents have acted with any illegality, irrationality or impropriety in rejecting the offer of the petitioner firm nor can be said to have proceeded to award the contract to the other bidder for any extraneous consideration and the grievance sought to be raised by the petitioner remains wholly unfounded and on the contrary, the conduct of the petitioner himself does not inspire confidence. 18. An examination of the material available on record raises more questions on the genuineness of claim of the petitioner rather than providing any satisfaction on his conduct. The petitioner has come out with the fundamental submission that the University had decided not to extend agreement with the previous contractor because of the irregularities committed by the said agencies in running the project. This statement of the petitioner has no supporting material on record and if at all taken into consideration, it boomerangs on the fact of the petitioner. .19. The term of the contact of the previous contractor was coming to an end and the University, therefore, decided to call for fresh offers and it appears that when the term of the previous agreement was nearing the end, the petitioner as well as those agencies already took up the race to get the contract. Coming to this aspect later, relevant it is to notice in the first place that the petitioner has made the following averments in Para 6 of the writ petition, - .“6. That the proprietor of the petitioner firm came to know through some reliable sources that the tenure of contract of the respondent agencies is at the verge of completion in the month of September, 2005 and the University has decided, not to extend the agreement with the said company because of the irregularities committed by the said agencies in the year 2005, in running the project. Being willing and anxious to render its services to the University, the petitioner firm made an offer to the Respondent No. 1 mentioning therein that the firm proposes to provide the Computer Education to the students of University @ 150 per student per year. The copy of the proposal letter dated 09.09.2005 is enclosed and marked an Annexure-1.” .20. In juxtaposition to the aforesaid, the averments in Para 2 of the writ petition could be read where the petitioner has attempted to give out his experience after graduation in the year 1998. In relation to the very same agencies, who were working with the respondent-University on the contract of imparting computer education, the petitioner has stated his status thus, - .“2...... Thereafter, the proprietor of the petitioner firm was appointed as the Regional Manager of the firm Vital Academy and Education Linx i.e. the agencies which had the contract of imparting computer education to the students of JNVU, Jodhpur for the period ranging from Years 2001 to 2004. During this entire period, the proprietor of the petitioner firm was managing the affairs of the project awarded to said agencies and was taking care of the computer education as well as the maintenance of the computer systems installed in the University.” 21. If the contention of the petitioner that the aforesaid agencies had committed irregularities for which the University was not satisfied then obviously the petitioner is to be directly blamed for the same as the petitioner has claimed aloud that he was managing the affairs of the said project. 22. The conduct of the petitioner has a further shortcoming of concealment of the facts from this Court. As notice hereinabove, the averments in Para 6 of the writ petition are to the effect that the petitioner gave out an offer on 09.09.2005 at the rate of Rs. 150/-per student per year. However, the petitioner has not informed that even prior to that, he had given out an offer at the rate of Rs. 250-300/ -per student per year on 09.05.2005, which letter is available in the Universitys file at page 94. It appears that the petitioner was attempting to pre-empt the tender process and despite alleging himself to the person managing the affairs of the continuing contractor, gave out an offer without having been invited to do so. 250-300/ -per student per year on 09.05.2005, which letter is available in the Universitys file at page 94. It appears that the petitioner was attempting to pre-empt the tender process and despite alleging himself to the person managing the affairs of the continuing contractor, gave out an offer without having been invited to do so. It is a different matter that the University did not accede to this offer and directed calling of the tenders. 23. Then, during the course of arguments, the petitioner was specifically put the questions about the credentials of the institute with whom he alleged to have worked as Junior Faculty Member. The additional affidavit submitted by the petitioner in response to these queries show that the said Nash Computers was itself established only in the year 1998, the year when the petitioner graduated and it has never been shown that the said agency was answering to the description of such College and University as contemplated in the eligibility criteria for the present tenderers. Moreover, when the question was about the turnover which the petitioner firm may claim for itself , the additional affidavit submitted by the petitioner is conspicuously silent on the salary, by whatever name called, having been paid to him as a “Junior Faculty Member”. In such state of self -contradictory and ambiguous stand of the petitioner, his conduct does not inspire confidence and give rise to more questions rather than providing any satisfaction. 24. Coming to the merits of the case, the tender process carried out by the University cannot be said to be tainted with illegality, impropriety or irrationality, particularly in rejection of bid of the petitioner. The eligibility criteria as provided in Schedule III to the tender document reads thus, - “2. Eligibility Criteria (a) Theagency who has offered its tender against this advertisement should have minimum experience of three years teaching in Computer Education and maintenance of Computers, UPS and Peripherials etc. preferably in Colleges and Universities having record of good performance. A certificate be attached. (b) The Agency should have turn over of Rs. 5.00 lakh or more per annum in this field only for the last preceding three years. The tenderer shall have to submit proof about his financial position including balance sheet, Bank Statement/reports etc.” 25. The petitioner does not conform to the requirements. A certificate be attached. (b) The Agency should have turn over of Rs. 5.00 lakh or more per annum in this field only for the last preceding three years. The tenderer shall have to submit proof about his financial position including balance sheet, Bank Statement/reports etc.” 25. The petitioner does not conform to the requirements. Learned Counsel for the petitioner laid emphasis on the facts that the petitioner is a proprietory concern and, therefore, the firm name and that of the individual proprietor are the same identities and the rejection of his technical bid on the ground that the firm has no experience, is not proper. It is true that in the Minutes of the Meeting (Annexure R/2), the ground of rejection for the petitioner has been stated as “Firm has no experience”, but such observations seem to be correct on comprehension of all the requirements of this particular tender. A look at the eligibility criteria makes it apparent that the University insisted for the agency in question to be having minimum experience of three years teaching and maintenance preferably in Colleges and Universities and the agency must be having turnover of over Rs. 5.00 lacs per annum for the last three years in this field only. 26. The experience certificate produced by the petitioner is admittedly not of any College or University and even if the petitioner be assumed to have worked with the firm Nash Computers, that cannot be taken to be an experience as required by the University in this tender. The balance sheets shown by the learned Counsel for the respondents show it clearly that the petitioner started with Income-Tax Assessment only from the year 2002-2003. However, the turnover as shown in the balance sheets is clearly of dealing in computers only and not as any salary or professional income towards teaching. As noticed hereinabove, even the additional affidavit is conspicuously silent about any salary having been earned by the proprietor of the petitioner firm while working as Junior Faculty Member. However, the turnover as shown in the balance sheets is clearly of dealing in computers only and not as any salary or professional income towards teaching. As noticed hereinabove, even the additional affidavit is conspicuously silent about any salary having been earned by the proprietor of the petitioner firm while working as Junior Faculty Member. On a comprehension of all the facts available on record, it appears that the petitioner might have worked as some sort of a apprentice or a trainee after he had just graduated in the year 1998 and may be that the petitioner took up dealing in the computers from the year 2002, it is very difficult to find that with such dealings, he was continuing on teaching experience also. The rejection and reasons for such rejection do not appear to be illegal or irrational and the writ petition remains devoid of substance. 27. The petitioner has feebly attempted to level some allegations against the Committee Members and has made certain averments like the change of time for opening of the tenders from 110.2005 to 110.2005, however, learned Counsel for the petitioner has rightly not laid much emphasis on such baseless allegations. Further, the submission has been that the other persons have been chosen as a favoured persons and even one single person was permitted to put two different rates. However, such allegations do not appear to be of any vital material importance or relevance in the present case. The representations of the petitioner have also been duly considered and even the objection got made through a Member of the Syndicate of the University on 20.10.2005 raising, inter alia, a question about absence of one of the Members of the Committee at the time of opening of the tenders have also been duly dealt with by the Committee in its meeting dated 210.2005. Mere suggestion of the petitioner offering lower rates does not fit in the requirements of an eligible tenderer and merely in the name of lower rates, all considerations of eligibility cannot be ignored. The petition remains wholly baseless. 28. From the record produced by the University it also appears that the University has asked the successful tenderers for negotiation of the rates offered by them and in fact a meeting of the Committee was fixed on 30.11.2005 for such negotiation. The petition remains wholly baseless. 28. From the record produced by the University it also appears that the University has asked the successful tenderers for negotiation of the rates offered by them and in fact a meeting of the Committee was fixed on 30.11.2005 for such negotiation. Having perused the record produced by the University, this Court is satisfied that the University has not proceeded with any procedural impropriety or on any irrational basis so as to warrant any interference by this Court in the matter of award of the contract. 29. The writ petition fails and is dismissed. However, in the circumstances of the case, the parties are left to bear their own costs.