Research › Search › Judgment

Calcutta High Court · body

2019 DIGILAW 830 (CAL)

Diesel Pump Engineers v. Eastern Coalfields Ltd.

2019-08-29

DEBANGSU BASAK

body2019
JUDGMENT : 1. The petitioner seeks rejection of the bids of the respondent nos. 4 to 6 in respect of serial 25 of a tender process under the name and style of “15 Tonne SWL Cage Suspension Gear Set Complete in all respect Suitable for 46 mm dia winding rope” issued by Eastern Coalfields Ltd. (ECL). 2. Learned Advocate appearing on behalf of the petitioner submits that, the respondent nos. 4 to 6 did not satisfy the essential eligibility criteria as prescribed in the notice inviting tender. He submits that the respondent no. 4 was found not to be qualified on the ground of the initial portion of the eligibility criteria. The respondent nos. 4 to 6 are Medium Scale Enterprise (MSE). Therefore, the criteria should be made applicable across all MSEs participating in the tender process. In the present case, ECL distinguished between similarly situated persons and made one eligibility criteria of the tender process applicable for one MSE such as the respondent no. 4 while the ECL made another criteria applicable for the respondent no. 5 who is also an MSE. He draws the attention of the Court to the eligibility criteria. He submits that, the eligibility criteria can be divided into two portions. One portion for units who are not Start Ups/MSEs and the other portions for those who are Start Ups/MSEs. Even going by the logic as the ECL as exhibited in their affidavit-in-opposition, then also the second portion of the eligibility criteria relating to Starts Up and MSEs has not been fulfilled by the respondent no. 5. He submits that, three conditions laid down in the eligibility criteria relating to an MSE have not been fulfilled by the respondent no. 5. The Provenness Certificate relied upon by the respondent no. 5 shows that the machine failed the test. Therefore, respondent no. 5 cannot be considered as a technically qualified bidder for a price bid to be opened and considered. He submits that, the machines of the respondent no. 5 did not pass the test of field criteria for one year. Therefore, according to him, the action taken by ECL with regard to the respondent no. 5 is bad. 3. Learned Advocate appearing on behalf of the ECL submits that, the eligibility criteria prescribe two parts. One relates to the units, which are not Start Ups or MSEs. In the present case, the respondent no. Therefore, according to him, the action taken by ECL with regard to the respondent no. 5 is bad. 3. Learned Advocate appearing on behalf of the ECL submits that, the eligibility criteria prescribe two parts. One relates to the units, which are not Start Ups or MSEs. In the present case, the respondent no. 5 is an MSE. ECL considered the eligibility criteria and found the respondent no. 5 to be eligible. He submits that the conditions in (i) and (ii) of the eligibility criteria are not attracted for an MSE. By the same logic (iii) is not attracted also. Therefore, according to him, ECL is not acting arbitrarily in selecting the respondent no. 5. Moreover, he submits that, the action of the ECL cannot be termed as arbitrary. The tender conditions allow a preference to be given to an ancillary unit. The petitioner herein is an ancillary unit. He draws the attention of the Court to Clause 28 of the tender conditions. He submits that, the tender conditions and particularly Clause 28 require ECL to discover the price and after discovering of the price, once the lowest price is identified, the same is intimated to the ancillary unit, such as the petitioner herein, and such ancillary unit is offered to match such price. When the price obtained by ECL is matched by an ancillary unit, such as the petitioner, then the contract is awarded to the ancillary unit. Therefore, ECL will be offered the price quoted by the respondent no. 5 for the petitioner to match it. In the event, the petitioner matches the price, the contract will be awarded to the petitioner. Therefore, according to him, it cannot be said that ECL is acting arbitrarily in denying a reasonable opportunity to the petitioner in participation of the tender process. 4. Learned Advocate appearing on behalf of the respondent no. 5 adopts the submissions of the learned Advocate for the ECL. In addition, he submits the Field Certificate that, the petitioner relies upon is in respect of a machinery of different capacity and of different duration. Therefore, the Field Certificate cannot governed the subject tender. 5. ECL issued notice inviting tender dated June 22, 2018 for procurement to CS Gear of various capacity for use in different mines of ECL. The petitioner and the private respondent no. 5 participated therein. The fact that, the respondent no. Therefore, the Field Certificate cannot governed the subject tender. 5. ECL issued notice inviting tender dated June 22, 2018 for procurement to CS Gear of various capacity for use in different mines of ECL. The petitioner and the private respondent no. 5 participated therein. The fact that, the respondent no. 5 is an MSE is not disputed. The tender conditions require a participant to first pass the technical bid stage for the financial bid to be opened. Once, the technical bid stage is passed, the financial bid is looked into. 6. It is the contention of the petitioner, that, the respondent no. 5 cannot be taken to have passed the technical bid stage. According to the petitioner, the respondent no. 5 does not have the requisite technical qualification. 7. Annexure 2 of the bid documents is the technical section. The technical section requires the bidder to qualify the parameters laid down therein. Two Clauses of the technical section are important for the consideration of the disputes between the parties herein namely, clause 8 and (d). 8. Clause (d) of the technical section deals with prior experience and turn over criteria for startups an MSE. It goes on to say that prior experience and turn over criteria is not applicable, for an MSE. It further states that, the situation contemplated in (i) and (ii) of Clause (d) are not attracted and that no further documents regarding provenness will be required if the bid is submitted by an MSE. On a parity of the same logic (iii) of Clause (d) is not attracted for an MSE. ECL proceeded on such basis. This procedure of ECL cannot be faulted. It is a plausible reading of the terms and conditions of the tender document. Writ Courts are not required to substitute an understanding of the employer in a tender when such understanding is not perverse to the conditions under consideration. 9. In such circumstances, a MSE being exempt from providing the provenness certificate or the document contemplated in (i), (ii) and (iii) of Clause (d), the question of the respondent no. 5 having failed the test or does not arise. Therefore, the decision of the ECL to treat the respondent no. 5 as technically qualified cannot be faulted. 10. Clause 28 of the tender documents allow ECL to offer the petitioner who is admittedly an ancillary unit the opportunity to match the L1 bidder. 5 having failed the test or does not arise. Therefore, the decision of the ECL to treat the respondent no. 5 as technically qualified cannot be faulted. 10. Clause 28 of the tender documents allow ECL to offer the petitioner who is admittedly an ancillary unit the opportunity to match the L1 bidder. Therefore, by the participation of the respondent no. 5, the petitioner is not prejudiced. ECL after treating the respondent no. 5 as a technically qualified bidder proceeded to discover the price in the tender process. ECL did not commit any error in doing so. 11. In view of the discussions above, I find no material irregularity in the conduct of ECL with regard to subject tender warranting an interference by the Writ Court under Article 226 of the Constitution of India. 12. W.P. 11243 (W) of 2019 is dismissed without any order as to costs. 13. Interim orders, if any, stand vacated. 14. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.