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2015 DIGILAW 484 (JK)

Shalimar Engineering Pvt. Ltd. v. State of J&K

2015-09-08

BANSI LAL BHAT

body2015
JUDGMENT : Bansi Lal Bhat, J. 1. The petitioner has invoked the writ jurisdiction of this Court seeking quashment of allotment of the tender of private respondent with regard to Soil Compactor Vibratory Rollers and quashment of communication bearing No. SEMK/TS-15/2810-11, dated 09.03.2015. He has further prayed that the respondents be directed to explain the reasons that how they have reached to the conclusion of re-tendering of said work when the petitioner company was the strong competitor and the lower bidder or in alternative direct the respondents to re-tender the entire NIT issued by the respondents. He has further sought writ of mandamus commanding the respondents to allot the work Tandem Vibratory Rollers (double drum type) to the petitioner company for which the petitioner company is the lowest tenderer and Soil Compactor Vibratory Rollers for which the petitioner company alone is eligible. The case projected by the petitioner in the writ petition is that respondent No. 2 invited NITs vide tender notice dated 23.01.2015 pursuant to which various works were tendered including the supply of Soil Compactor/Tandem Vibratory Rollers (TVR) for Mechanical Division, Anantnag and Srinagar. It is stated that in terms of the tender notice the time of completion was prescribed 20 days, however, in the tender documents itself the acceptance to the extent of 'JCB', 'CASE', 'VOLVO' & 'HAMM' was kept open and the Escorts was rolled out from participating in the tendering process though there was no occasion for the respondents as stated by the petitioner to exclude the Escorts from participating in the tendering process. It is stated that the petitioner filed a detailed representation against excluding him from participating in the tendering process which culminated in issuing of corrigendum No. 1 entitling the petitioner company to participate in the tendering process. It is further stated that due to certain technicalities/loopholes in the tender notice, the respondents issued corrigendum No. 2. It is further stated that the petitioner company and other eligible tenderers submitted their respective tenders online in terms of e-tendering process. It is stated that summary of the tender document came to be uploaded by respondent No. 2 on 10th March, 2015 for the purposes of technical bid evaluation and the bid opening date and time was also fixed for 10th March, 2015. It is alleged by the petitioner that thereafter entire exercise was done in anarchical manner. It is stated that summary of the tender document came to be uploaded by respondent No. 2 on 10th March, 2015 for the purposes of technical bid evaluation and the bid opening date and time was also fixed for 10th March, 2015. It is alleged by the petitioner that thereafter entire exercise was done in anarchical manner. It is stated that the respondent No. 5 uploaded a communication on 09.03.2015 on the official website in which it has been mentioned that in respect of Tandem Vibratory Rollers some clarifications are required to be sought from the Executive Engineer, MED, Srinagar, as well as from the bidder as discussed. It is alleged that though the petitioner was lowest tenderer but a deliberate attempt has been made by the respondent No. 2 to defeat the rights of the petitioner company in order to accommodate the JCB Company for his personal interest. It is also alleged that despite the machinery of respondent No. 6 did not satisfy the technical specification in the form of ROPS which was mandatory requirement yet the tender has been allotted to him so as to accommodate him for extraneous considerations. 2. In nutshell the case of the petitioner is that despite the fact that respondent No. 6 being ineligible has been considered for allotment of work with regard to Vibratory Soil Compactor and for the allotment of work with regard to Tandem Vibratory Rollers the petitioner company though eligible their case has been rejected and the work to that extent has been ordered to be re-tendered. The petitioner questions the allotment of tender in favour of private respondent No. 6 with regard to Soil Compactor Vibratory Rollers and seeks allotment of work with regard to Tandem Vibratory Rollers in his favour being the only eligible and lowest tenderer. 3. I have heard learned counsel for the parties, perused the record and considered the matter. 4. Respondents have filed the counter and resisted the averments made in the writ petition. Respondents 1 to 5 have filed the detailed reply. It is pleaded that the price bids of all the bidders were opened in the office of the Chief Engineer, MED, Kashmir, on 10.03.2015 and after online opening of the 'Price Bids', respondent No. 6 emerged as the lowest bidder for item No. 2 of the tender. Respondents 1 to 5 have filed the detailed reply. It is pleaded that the price bids of all the bidders were opened in the office of the Chief Engineer, MED, Kashmir, on 10.03.2015 and after online opening of the 'Price Bids', respondent No. 6 emerged as the lowest bidder for item No. 2 of the tender. Respondents 1 to 5 have given the comparative table of the prices offered by the four qualified bidders which reveals that respondent No. 6 has given bid amount of Rs. 70,01,697/- whereas petitioner has given Rs. 71,88,171/-. In respect of Tandem Vibratory Rollers, it is pleaded by respondents 1 to 5 that due to certain variations/controversies it was decided that fresh tenders for procurement of Tandem Vibratory Rollers will be issued in due course of time. It is also pleaded that in this regard they had already uploaded a notice on the website. It is also pleaded that the whole exercise was processed and done in a very transparent manner, purely on merits, as the work was put to e-tendering which is a foolproof system. Insofar as the issue raised in respect of Cold Starting Kit is concerned, the respondents 1 to 5 have stated in paragraph 8, which reads hereunder: "...With regard to 'Cold Starting Kit', the NIT requirement was that the machine should be capable of starting at Sub Zero Temp upto (-) 18 degree C or a Cold Starting Kit should be included in the equipment, if needed as per the OEM, and thus prices should be inclusive of it. It was nowhere mentioned in the NIT that the machines should compulsorily be fitted with cold starting kits. Both, the petitioner as well as the proforma respondent Company have quoted that their machines are capable of starting at sub-zero temp upto (-) 18 degree C, which implies that there is no need of fitting separate cold starting kits. It is precisely because of this fact that the Cold Starting Kit was not incorporated as a separate work item in the BOQ uploaded on the website..." 5. Respondent No. 6 has also filed the reply and contested the averments made in the writ petition. While reiterating the stand of the official respondents, he has pleaded that since the tendering process has culminated into allotment order in favour of respondent No. 6, therefore, the writ petition is unsustainable. 6. Respondent No. 6 has also filed the reply and contested the averments made in the writ petition. While reiterating the stand of the official respondents, he has pleaded that since the tendering process has culminated into allotment order in favour of respondent No. 6, therefore, the writ petition is unsustainable. 6. It emerges from the record that the petitioner has not disputed that the respondent No. 6 was the lowest tenderer, therefore, there is no question to quash the allotment of the tender with regard to Soil Compactor Vibratory Rollers. Insofar as re-tendering of Tandem Vibratory Rollers is concerned, the official respondents have specifically pleaded that due to variations/controversies, it was decided by the designated Purchase Committee of the Department to do so which was otherwise within their competence. It is also seen that the official respondents have processed e-tendering in a transparent and foolproof manner. What is further gathered is that since all the bids were considered and no bid was rejected, therefore, the question of giving sufficient time for objections against rejecting any tender does not arise at all. 7. It is a well settled principle of law that the Court does not sit as a Court of appeal, but merely reviews the manner in which the decision is being made. Such decision essentially falls in the realm of a contract. Judicial review is permissible only in regard to the decision making process and not with respect to the decision taken. The Court also does not have the expertise to correct the administrative decision and if a review of the administrative decisions is permitted, it will be substituting its own decision, without the necessary expertise, which itself may be fallible. It is axiomatic that the Mechanical Engineering Department is the best judge of its interests and needs and it is always open to it to suitably modify or change the eligibility criteria so as to best serve its purposes. Thus, by re-tendering the NIT with regard to Tandem Vibratory Rollers, it might hurt the interests of someone or the other but for that reason the change made in the eligibility criteria cannot be labeled as mala-fide and the action cannot be said to be arbitrary or unreasonable. 8. In the aforementioned backdrop, I find no merit in this writ petition. Dismissed alongwith CMP. Interim direction is vacated. OWP No. 710/2015: 9. 8. In the aforementioned backdrop, I find no merit in this writ petition. Dismissed alongwith CMP. Interim direction is vacated. OWP No. 710/2015: 9. This writ petition has been filed by M/S. Gautam Engineering figuring as respondent No. 6 in OWP No. 511/2015 for a direction seeking release of the payment due to it pursuant to the allotment order issued in its favour. Since I have dismissed the aforesaid writ petition (OWP No. 511/2015), respondents are expected to release the admitted payment, if any payable, in favour of M/S Gautam Engineering Company, in accordance with the rules governing the field. Disposed of alongwith all connected CMPs.