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Rajasthan High Court · body

2019 DIGILAW 2647 (RAJ)

Dhanna Ram Siyag Security Agency v. Gail (india) Ltd

2019-10-04

DINESH MEHTA

body2019
JUDGMENT Dinesh Mehta, J. - This writ petition has been preferred by the petitioner challenging rejection of his technical bid in pursuance of E-Tender for security contract issued by the respondent. 2. Post filing of the writ petition, the petitioner has placed on record a communication dated 16.09.2019, sent on behalf of the respondent Company, interalia giving out reasons, for which his bid was rejected. Those reasons are reproduced hereinfra: 2. That consequent upon Technical Bid Evaluation (TBA) carried out in line with Bid Evaluation Criteria and clarification received from DGR vide e-mail dated 19.08.2019 in respect to Bid Evaluation, M/s 4322/Dhanna Ram Siyag Security Agency was summarily disqualified as the validity of Empanelment Certificate issued by DGR to M/s 4322/Dhanna Ram Siyag Security Agency was expiring on 06.09.2019 and contract execution date is 16.09.2019. Further, in line with the provision stipulate vide para 26(a) of DGR Guidelines, When an Individual ESM has attained the age of 60 years, the validity of Empanelment of the ESM will cease once the ESM attains 60 years of age. However, existing contracts will be allowed to run to completion. 3. That as per the TBA, approval of price of bid opening & recommendations thereof by Technical Committee, the order for SECURITY SERVICES FOR JL-PIPELINE INSTALLATIONS OF ABU ROAD & NG PIPELINE INSTALLATIONS OF RAMGARH, JAISALMER has been placed to successful bidder i.e. M/s MAHENDRA SINGH JODHA at a total value of Rs.4,67,64,902.45 (including GST @ 18%) for Abu Road & FOA as Rs.2,07,98,909.18 (including GST @ 18%) (including GST @ 18%) for Ramgarh. 3. Though, the above communication dated 16.09.2019, disclosing reasons for rejection of petitioner s bid has not been challenged, but for the purpose of substantial justice, the Court considered petitioner s contentions in relation to reasons for nonsuiting the petitioner. 4. The facts relevant for this purpose are briefed as under:- 5. On 03.08.2019, the respondent Company invited the prospective bidders to participate in the bidding process for the contract of providing security care taking and loss prevention services. The last date for furnishing bids was 16.08.2019 and the date of execution of the contract was 16.09.2019 or in other words, the work order was to be issued on 16.09.2019. 6. The petitioner having an empanelment certificate valid upto 06.09.2019 submitted his technical and financial bid on 14.08.2019. The last date for furnishing bids was 16.08.2019 and the date of execution of the contract was 16.09.2019 or in other words, the work order was to be issued on 16.09.2019. 6. The petitioner having an empanelment certificate valid upto 06.09.2019 submitted his technical and financial bid on 14.08.2019. As scheduled, the unpriced bids (technical bids) were opened at 4 pm on 16.08.2019, wherein petitioner was found ineligible for grant of the contract. 7. Learned counsel for the petitioner contended that notwithstanding the petitioner s empanelment certificate/license was valid only till 06.09.2019, he was eligible for the contract, because on the date of advertisement/auction notice, on the date of furnishing the tender and even on the date when the unpriced bids were opened, his certificate was valid. Hence, the respondents were not justified in rejecting petitioner s candidature, emphasised learned counsel, while inviting the Court s attention towards Clause No.26 of the office memorandum dated 09.07.2012, which reads thus: 26. Dis-empanelment Security Agencies/Companies will be removed from the active panel of DGR under the following conditions:- (a) when an Individual ESM has attained the age of 60 years. The validity of empanelment of the ESM will cease once the ESM attains 60 years of age. However existing contracts will be allowed to run to completion. The list of such ESM will be updated regularly by DGR on their website. (b) Once it has been established that the sponsored ESM has violated any of the MoD s Instructions/norms on Empanelment and functioning of DGR Sponsored Security Agencies, or has provided false information while submitting the Affidavit/undertaking. (c) Apart from dis-empanelment and cancellation of existing sponsorship, action under the relevant provisions of IPC will be initiated by DGR under information to MoD/DoESW. (d) Has concealed any material information having a bearing on his empanelment and sponsorship. (e) Seeking/bidding for security Contracts with PSUs without sponsorship by DGR. (f) Non-submission of reports in time as per para 23 and 24 above. 8. Relying heavily upon the above referred Clause No.26, learned counsel contended that the petitioner is entitled to carry out the contract regardless of the fact that he has attained 60 years of age on 6th September, 2019. He argued that on the date of opening the bid, he was unquestionably eligible, which should be the relevant date for examining the eligibility. 9. He argued that on the date of opening the bid, he was unquestionably eligible, which should be the relevant date for examining the eligibility. 9. In support of his case, learned counsel cited judgment of Hon ble the Supreme Court in the case of Sunil Dutt Sharma Vs. Chief Regional Manager, H.P.C. Ltd. & Ors., (2003) 7 SCC 662 . 10. Heard learned counsel for the petitioner. 11. A simple look at the above referred Clause No.26 of the office memorandum, leaves no room for ambiguity that the same is applicable to those cases, where a contract is already in currency. It can in no case be invoked in the present case, when the work order or the contract was to be awarded for the period after 16.09.2019. 12. General rule that eligibility has to be seen as on the date of application or as on the last date of furnishing form cannot be applied in the case at hands because in the present case age of 60 years is a disqualification and not qualification. In such case of ineligibility or disqualification one has to see as to whether the candidate would be incurring disqualification during the currency of contract. In the present case petitioner has acquired disqualification on 06.09.2019, even prior to scheduled date of commencement. 13. Concedely, the petitioner has attained the age of 60 years on 06.09.2019, as his date of Birth is 07.09.1959. As such on the date of issuance of work order, the petitioner has crossed the upper age cap and life of his certificate of empanelment has come to an end. 14. In considered opinion of this Court, Clause 26 is applicable to deal with a contingency, when a person attains the age of 60 years, during the currency of the contract. A contract cannot be awarded to a person, who before commencement of contract has crossed the upper age ceiling. In case the interpretation as proposed by the petitioner is accepted and petitioner is held entitle to bid, then even on the first date of contract i.e. 16.09.2019, petitioner would be ineligible which cannot be the intention of Clause 26. Clause 26 provides that validity of empanelment would be seized on attaning 60 years of age. 15. In case the interpretation as proposed by the petitioner is accepted and petitioner is held entitle to bid, then even on the first date of contract i.e. 16.09.2019, petitioner would be ineligible which cannot be the intention of Clause 26. Clause 26 provides that validity of empanelment would be seized on attaning 60 years of age. 15. Adverting to the judgment cited by learned counsel for the petitioner in the case of Sunil Dutt Sharma (supra); this Court feels that the same does not lend any support to petitioner s cause. In the judgment aforesaid, the Hon ble the Supreme Court has held that once the competent authority has granted the eligibility certificate, (in that case Director-General of Resettlement) the respondents were not required to look beyond it. That apart, the facts before Hon ble the Supreme Court were that the certificate in question was issued by the Director General of Resettlement, which was issued on 16.08.1993, whereas the advertisement of award of LPG agency was issued on 11.01.1994. Dealing with the facts of the said case, Hon ble the Apex Court held that the certificate in question was not very old and the same ought to have been accepted, while categorically observing that the respondents did not have any source of information about the current financial status of the candidate under consideration. 16. As an upshot of discussions above, this Court does not find any merit in petitioner s case. The writ petition is, therefore, dismissed. 17. The stay petition also stands dismissed.