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2019 DIGILAW 316 (GUJ)

Ekta Offset Private Ltd. v. State of Gujarat

2019-04-05

K.M.THAKER, SANGEETA K.VISHEN

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JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Champaneri, learned advocate for the petitioner and Mr. Manan Mehta, learned AGP for the respondent. 2. In present petition the petitioner has prayed, inter alia, that:- "8(b) That this Hon'ble Court will be pleased to issue appropriate writ, order or directions in the nature of writ of mandamus or any other appropriate writ order or directions of the same nature and be pleased to quash and set aside, the impugned action and decision of the respondent No. 2 of disqualifying the petitioner at the pre-bid stage pursuant to the tender notice Annexure-A. (c) That this Hon'ble Court will be pleased to issue appropriate writ, order or directions in the nature of writ of mandamus or any other appropriate writ-order or directions of the same nature and be pleased to direct the respondent No. 2 to consider the price bid of the petitioner and if the petitioner is found to be L1 then further direct the respondent No. 2 to grant work order to the petitioner, pursuant to the tender notice Annexure-A. (d) That this Hon'ble Court will be pleased to restrain the respondents, their agents and servants from issuing the work order of supply of Farashkhana Supply Services as per the locations decided by the respondent No. 2 for Loksabha General Elections-2019, so far as it relates to district Kheda, to any other bidder of the tender notice at Annexure-A, till and pending the hearing and final disposal of this petition." 3. To justify the request and relief prayed for in the petition, the petitioner has averred and stated that:- "3.1 The respondent No. 2 floated a tender No. ELC/Farashkhana Materials/Tender - 4/2019, on 07.02.2019. The said tender was for supply of Farashkhana Materials for the general Loksabha Elections to be held in 2019......... 3.2 The petitioner state and submit that the petitioner company since last more than; 15 years is engaged in the business of printing, decorations, laminations, binding and catering services. The petitioner company since it's inception is providing it's services at the election tenders for various Loksabha and Vidhansabha elections. The petitioner company is having a vast experience in providing it's services for the elections. 3.3 The petitioner state and submit that the respondent No. 2 has prefixed various pre-requisite eligibility criteria for applying for tender. The petitioner company since it's inception is providing it's services at the election tenders for various Loksabha and Vidhansabha elections. The petitioner company is having a vast experience in providing it's services for the elections. 3.3 The petitioner state and submit that the respondent No. 2 has prefixed various pre-requisite eligibility criteria for applying for tender. One of the conditions of the eligibility criteria is condition No. 9 which reads thus "the applicant must have satisfactorily done the work of supplying decoration services in last five accounting years to the tune of Rs. 1,00,00,000/- and respective certificate to that effect shall have to produced." 3.4 The petitioner state and submit that the petitioner company was fulfilling all the requisite eligibility criteria and therefore the petitioner company had applied for the tenders and was matching all the pre-bid qualifications which can be seen from the documents supplied by the petitioner along with it's prebid.............The petitioner further submits that the petitioner had also produced it's last five years accounts and audit reports however the same are not produced here to avoid production of unnecessary bulky record. However the petitioner craves leave of this Hon'ble Court to produce the same as and when required. 3.5 The petitioner state and submit that the petitioner company had supplied the decoration services for the Vidhansabha Election, Gujarat State for Kheda District to the tune of Rs. 51,60,572/-, for District Panchayat Election for the year 2017-18 to the tune of Rs. 39,98,867/- and Vidhansabha Elections 2017 to the tune of Rs. 9,33,270/-. Thus in all in last 2017-18 year itself the petitioner company has supplied the services of decorations for the election works to the tune of Rs. 1,00,93,709/-. The petitioner company therefore is meeting with the requirement of condition No. 9. 3.6 The petitioner state and submit that as per the tender schedule the pre-bids were to be opened at 13:00 hours on 16.02.2019 and the price bids were to be opened at 17:00 hours on 16.02.2019, the respondent No. 2 did not did so. The respondent No. 2 on 18.02.2019 opened the pre-bid. At the time of the opening of the pre-bid the respondent No. 2 replied the petitioner that the works of the supply of decorations to the tune of Rs. 1,00,00,000/- must have been only for Vidhansabha and Loksabha elections as per condition No. 9 of pre-requisite criteria. The respondent No. 2 on 18.02.2019 opened the pre-bid. At the time of the opening of the pre-bid the respondent No. 2 replied the petitioner that the works of the supply of decorations to the tune of Rs. 1,00,00,000/- must have been only for Vidhansabha and Loksabha elections as per condition No. 9 of pre-requisite criteria. The same is not matched by the petitioner company and therefore the pre-bid of the petitioner company can be disqualified for the same. If the entire condition No. 9 is read the same no where speaks so as interpreted by the respondent No. 2. The petitioner company therefore on 18.02.2019 itself submitted a representation to the effect that for favoritism to some particular bidder such interpretation is made and if the condition No. 9 is interpreted in the same manner then the petitioner company has strong objections against it and hence no injustice may be done to the petitioner company on such wicked interpretation and it's pre-bid may be declared qualified..... 3.7 The petitioner state and submit that the respondent No. 2 had orally informed the petitioner company that their pre-bid is declared disqualified and therefore the petitioner company submitted it's representation in writing to that effect on 19.02.2019 and requested the respondent No. 2 to consider the price bid of the petitioner and declare the pre-bid to be qualified. It was also requested to inform in writing as to how the pre-bid of the petitioner company can be declared disqualified....... 3.8 The petitioner state and submit that one resolution of the respondent No. 1 was within the knowledge of the petitioner. The said resolution provides for guidelines in the matter of purchase and purchase policy of all departments of Government........As per the Clause No. 12 the maximum tender fees for tender above Rs. 1,00,00,000/- can be levied to the tune of Rs. 5,000/- only whereas in the present case it is 15,000/- and as per Clause No. 15 the condition for requisite turnover of the bidder required should be 50% of the work contract amount. In the present case no amount of work to be done is disclosed in the tender. Thus the terms and conditions of the present contract is violative of Clause Nos. 12 and 15 of the guidelines issued by the respondent No. 1. In the present case no amount of work to be done is disclosed in the tender. Thus the terms and conditions of the present contract is violative of Clause Nos. 12 and 15 of the guidelines issued by the respondent No. 1. 3.9 The petitioner state and submit that very recently on 02.02.2019 in one tender issued by the District Election Officer and Collector Banaskantha, for the work of printing, decorations, furniture, stationery, banner and hoarding supply electric items supply the said mistake was done in the tender terms however relying the above mentioned guidelines the terms of the tender has been modified to bring it in consonance with the same GR......... 3.10 The petitioner state and submit that based on the GR and the abovementioned public advertisement the petitioner also made application to the respondent No. 2, pointing out their error in the tender terms, and further requested the respondent No. 2 to do correction like District Election Officer Banaskantha, Palanpur and bring the terms of tender in consonance with the GR of respondent No. 1....... 3.11 The petitioner state and submit that firstly the tender terms is not in consonance with GR, secondly the tender terms nowhere provides that the work must have been done for supplying decoration services for Vidhansabha and Lokasabha election to the tune of Rs. 1,00,00,000/-, thirdly the tender condition No. 9 does not provide that the supply of decoration services of elections will not be considered. However the respondent No. 2 without passing a reasoned order in writing or without providing any opportunity of hearing to the petitioner has orally informed the petitioner on 18.02.2019 that it's pre-bid is declared disqualified and thereafter till date has not informed about the same in writing to the petitioner. The action of the respondent No. 2 is arbitrary, with intention to favour one specific bidder for mala fide intention, suffers from vices of favouritism with bias and in violation to the principles of natural justice and fair play. The petitioner therefore is constrained to challenge the legality and validity of illegal action of the respondent No. 2 by way of this petition before this Hon'ble Court. The petitioner therefore is constrained to challenge the legality and validity of illegal action of the respondent No. 2 by way of this petition before this Hon'ble Court. 3.12 The petitioner state and submit that the dates for holding the general Loksabha Elections 2019 has till date not being declared by the Election Commission of India and therefore the work order is not issued and if issued the work will not commence after issuance of the same and therefore no other bidder are likely to be suffered if the ad-interim relief prayed for is granted." 4. The respondents have opposed the petition by filing reply affidavit wherein it is averred and stated that:- "4. At the outset, I most humbly say and submit that none of the fundamental or legal rights of the petitioner company, have been violated because of any action or inaction on part of the answering respondent and respondent authorities and therefore the present petition is not maintainable in law and the same deserves to be dismissed in limine. I further most respectfully say and submit that I am filing the present Affidavit-in-Reply with a view to oppose the grant of any relief/s in favour of the applicants. 5. I most humbly say and submit that by way of the present writ petition, the petitioner herein is challenging his disqualification, at pre-bid stage pursuant to the tender notice produce, which is already at Annexure-R-1 (page No. 15). It is also prayed by the petitioner that the respondent, be directed to consider the price bid of the petitioner and if petitioner is found to be L-1 than further directions for grant of work order to the petitioner, be issued by this Hon'ble Court. 6. In this regard to referred prayers of the writ petitioner, the answering respondent most respectfully says and submits that, the petitioner herein is not eligible for the tender as he is not fulfilling the conditions and eligibility criteria, more particularly the condition No. 9, where in the petitioner lacks the last 5 years minimum satisfactory completion of work amounting Rs. 1,00,00,000/- (One Crore Rupees). 1,00,00,000/- (One Crore Rupees). It would appropriate mentioned that the condition No. 9 of the tender notice is to be read with the condition No. 7 therein and it is categorically mentioned that in said condition that last 5 years experience i.e. from 2014 onwards the tenderer should have done the similar work of Legislative Assembly Election and Parliamentary Assembly Election and therefore admittedly, the petitioner is not found in an eligible and is not fulfilling the condition No. 9 read with condition No. 7 of the tender notice. And therefore, the action of disqualifying the petitioner herein, is absolutely just and proper. 7. That, the petitioner herein is considering himself as eligible candidate, by considering the similar work-done by the petitioner in Legislative Assembly Election and Kheda District Panchayat Election and therefore, the petitioner for his convenience, twisting the condition No. 9 of the tender notice and conveniently ignoring the condition No. 7 of the tender notice however, the same is not permissible. 8. It is further submitted that, the paragraph No. 3.5 of the petition wherein, the petitioner himself is admitting that he is not having eligibility criteria of mentioned in the condition No. 9 read with condition No. 7 of the tender notice and the same is reproduced herein below for the kind perusal of the Hon'ble Court; 3.5 The petitioner state and submit that the petitioner company had supplied the decoration service for the Vidhansabha Election, Gujarat State for Kheda District to the tune of Rs. 51,60,572/-, for District Panchayat Election for the year 2017-18 to the tune of Rs. 39,98,867/- and Vidhansabha Election 2017 to the tune of Rs. 9,33,270/-. Thus in all in last 2017-18 year itself the petitioner company has supplied the service of decorations for the election works to the tune of Rs. 1,00,93,709/-. The petitioner company therefore is meeting with the requirement of condition No. 9. 9. It is therefore respectfully submitted that, the interpretation on part of the petitioner for finding self eligible for the tender, is though convenient to but is not legal and valid and therefore the petitioner is not entitled to get any relief from this Hon'ble court in its discretionary jurisdiction under Article 226 of Constitution of India and is required to be dismissed. 10. 10. That, the petitioner is also relying on page No. 65 Annexure-F by making averments in the petition in paragraph No. 3.9 as under: 3.9 The petitioner state and submit that very recently on 02.02.2019 in one tender issued by the District Election Officer and Collector Banaskantha, for the work of printing, decorations, furniture, stationery, banner and hoarding supply, electric items supply the said mistake was done in the tender terms however relying the above mentioned guidelines the terms of the tender has been modified to being it in consonance with the same GR.......... 11. In this regard, it is most respectfully say and submit that, the advertisement issued by the office of the District Election Officer and Collector Banaskantha, which is produced at Annexure-F at page No. 65 of the petition is not indicative of the fact and is also not in consonance with averments made by the petitioner in above referred paragraph No. 3.9 of the petition. And therefore, the petitioner cannot be permitted to rely the same. However, to substantiate and his above referred submission, no further documents have been produced by the petitioner and therefore also the said contention of the petitioner is devoid of any merit and need not to be accepted by this Hon'ble Court." 5. From the details mentioned by the petitioner and from the submissions by learned advocate for the petitioner it has emerged that somewhere in February 2019 the respondent No. 2 issued notice and invited bids for supply of "Farashkhana material" for General Election 2019. 5.1. One of the conditions of the NIT/tender document clearly prescribed that the bidder must have experience of having executed work related to State Legislature/Parliament Election and the bidder must have executed similar work during election process and atleast one work/contract during past 5 years (since 2014) for the value of Rs. 1 crore must have been executed. 5.2. The petitioner submitted its bid (technical and price bid) in response to the NIT. 5.3. The tender condition also required the bidder to submit certificate issued by the authority declaring satisfactory execution of the said work. 5.4. The bids were scrutinized and processed, so as to verify compliance of the tender conditions. 5.5. 1 crore must have been executed. 5.2. The petitioner submitted its bid (technical and price bid) in response to the NIT. 5.3. The tender condition also required the bidder to submit certificate issued by the authority declaring satisfactory execution of the said work. 5.4. The bids were scrutinized and processed, so as to verify compliance of the tender conditions. 5.5. On verification of the petitioner's bid the respondent found that the petitioner did not fulfill specific requirement/tender condition prescribed by Clause 9 under "eligibility criteria" which demands execution of atleast 1 work/contract for the value of Rs. 1 crore during past 5 years (since 2014) during election process for Legislative Assembly or Parliament. 5.6. Therefore, the petitioner's tender came to be disqualified. 5.7. Feeling aggrieved by the said decision the petitioner has taken out present petition. 6. Learned Counsel for the petitioner submitted that according to Clause 7 of eligibility criteria, bidder must possess experience of work during election and that therefore the work executed during election of local authority should also be considered and such work i.e. work executed for/during election for local authority should not be excluded or the consideration should not be restricted to the election for Legislative Assembly or Parliament but, in light of Clause 7 r/w Clause 9 work executed/conducted during any election should be taken into account. 6.1. Learned counsel for the petitioner further submitted that the petitioner has executed similar work/contract on 3 occasions during election for State Legislative Assembly and during election of local authority (District Panchayat) during past 5 years and combined value of the said 3 works is Rs. 1 crore meaning thereby the petitioner complied Clause No. 9 and that therefore it should have been considered, eligible bidder and the bid should not have been rejected. 6.2. Any other contention is not raised. 7. So as to appreciate rival contention it is necessary to take into account Clause Nos. 7, 9 and 14 which reads thus:- 14. It is requested to take special note that all tenderer shall submit pre-bid (prior eligibility) form and its supporting documents online only on the "commercial bid/price bid" website.https://www.nprocure.com and they cannot submit any paper or sheet, e-mail, fax or sealed cover in any situation. 7. 7, 9 and 14 which reads thus:- 14. It is requested to take special note that all tenderer shall submit pre-bid (prior eligibility) form and its supporting documents online only on the "commercial bid/price bid" website.https://www.nprocure.com and they cannot submit any paper or sheet, e-mail, fax or sealed cover in any situation. 7. Experience of work related to election is a must: Wherein, work related to elections of State Assembly/Lok Sabha must have been carried out in last five years (since 2014). Work order and order for payment of bills towards work performed therein shall have to be produced. Further, if such work was carried out as sub-contract, it shall not be considered valid. 9. Certified copy of order of granting of expense by the concerned office for completion of at least one work worth Rs. 1 crore satisfactorily in last five financial years in relation to this work." 8. From the terms and conditions and more particularly Clause 9 it becomes clear that so as to eligible the bidder should demonstrate and establish, with help of certificate issued by specified authority that during span of past 5 years (since 2014) it has executed one work/contract of similar work for the value of Rs. 1 crore. 8.1. The said Clause 7 under eligibility criteria does not admit any doubt or dispute with regard to prescribed requirement. 9. The said Clause 7 and Clause 9 postulate that: (a) the bidder must possess experience of having executed work related to/during the election process (b) the bidder must have executed similar work during election of State Assembly or Parliament (Loksabha) (c) such work must have been executed during past 5 years (since 2014) and (d) atleast one work/contract executed during past five years (since 2014) must be for the value of Rs. 1 crore. 9.1. On reading said Clause it becomes clear that atleast one (single) work/contract executed by the bidder must be worth monetary value of Rs. 1 crore. 9.2. For demonstrating that work/contract to the tune of Rs. 1 crore have been executed, the bidder cannot cite or cannot rely on execution of different (more than one) contracts of lesser value so as to claim that total value of different (more than one) works executed during different election process conjointly reach the required total i.e. Rs. 1 crore. 9.2. For demonstrating that work/contract to the tune of Rs. 1 crore have been executed, the bidder cannot cite or cannot rely on execution of different (more than one) contracts of lesser value so as to claim that total value of different (more than one) works executed during different election process conjointly reach the required total i.e. Rs. 1 crore and that therefore condition prescribed by means of Clause 9 should be considered as complied. 10. When the details mentioned by he petitioner are taken into account it comes out that the petitioner has claimed that it has executed 3 different contracts during 2017-18 (i.e. in January 2018, March, 2018 and August, 2018). 11. According to the petitioner two out of said 3 work were executed during election process for State Legislative Assembly hi 2017 whereas one work was executed during District Panchayat Election conducted during 2017-18 and total/combine value of the said 3 works come to Rs. 1 crore. 12. So as to support said submission the petitioner has relied on below mentioned details:- Sr. No. Details of Election Date Amount 1 State Legislative Assemble Election – 2017 25.1.2018 5160572 2 District Panchayat 21.3.2018 3999867 3. State Legislative Assembly Election 23.8.2018 933270 10093709 13. Clause 7 of eligibility criteria expressly provides that "similar work" related to ejections of State Legislative Assembly/Lok Sabha should have been executed. 13.1. The said Clause does not take into its fold work executed during election for local authority (e.g. Taluka Panchayat or District Panchayat or Municipality or Municipal Corporation etc.) 13.2. Even if it is presumed that the work allegedly executed by the petitioner during Panchayat Election ought to be considered then also in light of specific and express requirement prescribed under Clause 9, the decision cannot be faulted and the submission that value of more than one work/contract executed during past 5 years should be combined (to determine monetary value of work executed by the bidder) and such combined value should be considered, is not tenable and cannot be sustained. Such submission is contrary to the purport, meaning and scope of Clause 7 and/or Clause 9 or on conjoint reading of said 2 Clause of eligibility criteria. 14. Besides this even if, only for the sake of considering petitioner's claim from another perspective the said submission is entertained then also the specific requirement prescribed by Clause 9 (viz. Such submission is contrary to the purport, meaning and scope of Clause 7 and/or Clause 9 or on conjoint reading of said 2 Clause of eligibility criteria. 14. Besides this even if, only for the sake of considering petitioner's claim from another perspective the said submission is entertained then also the specific requirement prescribed by Clause 9 (viz. one/single work or contract executed by the bidder must be in the value of Rs. 1 crore) would still stare in the face of the petitioner because the said condition/requirement is an independent requirement which a bidder must comply whereas the petitioner has, undisputedly, according to its own claim, not executed single/one work for the value of Rs. 1 crore during any election. 14.1. The said Clause 9 does not take into its fold and/or does not postulate or provide for taking into account combined or cumulative value of more than one work/contract executed by a bidder. 14.2. The said Clause requires execution of one and single contract for the value of Rs. 1 crore. 14.3. The submission by the petitioner is not admissible in light of the language and purport of Clause 9. 14.4. Therefore, the petitioner's contention is not sustainable and cannot be accepted. 15. In this context it is appropriate to recall the respondent's reply from its affidavit wherein the respondent has averred and stated that:- ".....In this regard to referred prayers of the writ petitioner, the answering respondent most respectfully says and submits that, the petitioner herein is not eligible for the tender as he is not fulfilling the conditions and eligibility criteria, more particularly the condition No. 9, where in the petitioner lacks the last 5 years minimum satisfactory completion of work amounting Rs. 1,00,00,000/- (One crore rupees)." 15.1. It is also appropriate to recall and take into account the details from paragraph Nos. 8 to 10 of the affidavit which read thus:- "8. 1,00,00,000/- (One crore rupees)." 15.1. It is also appropriate to recall and take into account the details from paragraph Nos. 8 to 10 of the affidavit which read thus:- "8. It is further submitted that, the paragraph No. 3.5 of the petition wherein, the petitioner himself is admitting that he is not having eligibility criteria of mentioned in the condition No. 9 read with condition No. 7 of the tender notice and the same is reproduce herein below for the kind perusal of the Hon'ble Court; 3.5 The petitioner state and submit that the petitioner company had supplied the decoration service for the Vidhansabha Election, Gujarat State for Kheda District to the tune of Rs. 51,60,572/-, for District Panchayat Election for the year 2017-18 to the tune of Rs. 39,98,867/- and Vidhansabha Election 2017 to the tune of Rs. 9,33,270/-. Thus in all in last 2017-18 year itself the petitioner company has supplied the service of decorations for the election works to the tune of Rs. 1,00,93,709/-. The petitioner company therefore is meeting with the requirement of condition No. 9. 9. It is therefore respectfully submit that, the interpretation on part of the petitioner for finding self eligible for the tender, is though convenient to but is not legal and valid and therefore the petitioner is not entitled to get any relief from this Hon'ble court in its discretionary jurisdiction under Article 226 of Constitution of India and is required to be dismissed. 10. That, the petitioner is also relying on page No. 65 Annexure-F by making averments in the petition in paragraph No. 3.9 as under: 3.9 The petitioner state and submit that very recently on 02.02.2019 in one tender issued by the District Election Officer and Collector Banaskantha, for the work of printing, decorations, furniture, stationery, banner and hoarding supply, electric items supply, the said mistake was done in the tender terms however relying the above mentioned guidelines the terms of the tender has been modified to being it in consonance with the same GR.........." 15.2. Undisputedly the petitioner does not fulfill said condition. 15.3. The petitioner claims that it had executed three contracts/works and total value of the said 3 works/contracts is Rs. 1,00,93,709.00 and that accordingly it fulfills prescribed and requisite criteria. 16. To support the said claim the petitioner relied on the document at page 43. The details mentioned in said document are quoted hereinabove. 15.3. The petitioner claims that it had executed three contracts/works and total value of the said 3 works/contracts is Rs. 1,00,93,709.00 and that accordingly it fulfills prescribed and requisite criteria. 16. To support the said claim the petitioner relied on the document at page 43. The details mentioned in said document are quoted hereinabove. 17. The said request and submission by the petitioner is against and contrary to the specific requirement and the condition/criteria mentioned in the tender documents. 17.1. The petitioner, tried to contend that the petitioner's bid is not rejected on the said ground but the authority has rejected the petitioner's bid on different ground. 17.2. For the said purpose learned advocate for the petitioner relied on the details mentioned in paragraph No. 6 of the reply affidavit. 17.3. While later part of the said paragraph gives out that the authority did not agree to accept petitioner's submission that the election for local authority should also be taken into account, however, the first part of paragraph No. 6 clearly give out that the authority took into account Clause 9 and the fact that the petitioner failed to establish that it had completed the contract work of Rs. 1 crore. Thus, even the said objection fails. 18. In light of foregoing discussion the petition fails and does not deserve to be entertained. For above mentioned reasons the petition is not accepted and it is hereby rejected. Notice is discharged.