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2021 DIGILAW 314 (MP)

BVG India Limited v. State of M. P.

2021-03-04

MOHAMMAD RAFIQ, VIJAY KUMAR SHUKLA

body2021
ORDER : Vijay Kumar Shukla, J. 1. The present petition has been fled under Article 226 of the Constitution of India seeking quashment of the NIT (bid) open tender process with regard to Revised 3rd Call in relation to State Level Centralized Call Centre/Dial-100 Project Phase -II (2020-2025) "On Turn-Key Basis" and to direct the respondents-State to initiate the fresh tender process. 2. The petitioner is an existing Contractor performing the tender work. On 9.12.2020 the respondents have invited Tender (NIT). The last date for submission of NIT/Tender was 24.12.2020. It is alleged that the petitioner was restrained forcefully by using Government Agency i.e. GST who has made raid and sealed the office of the petitioner. On earlier two occasions two times advertisements were issued but no party has participated on account of harsh payment terms, as such 3rd Revised Call was made. It is further submitted that the respondents finalized the technical bid by exercising colorable powers on 2.2.2021. According to the petitioner, the petitioner's firm is having large infra-structure and performing various contracts works in all over the country. The petitioner is presently carrying out work of Dial-100 in the State of Jammu and Kashmir and Maharashtra. 3. In the year 2014-15, the State Government has invited open NIT for State Level Centralized Call Center/Dial-100. In pursuance to the said open NIT, the petitioner's firm did participate in open NIT process. The NIT was finalized in favour of the petitioner and the work order was issued on 2.5.2015 for five years i.e. from 1st April, 2015 to 31st March, 2020 and the petitioner's firm entered into an agreement. As per the term of contract the period of 5 years expired on 31st March, 2020. Thereafter, the State Government has extended the period by issuing First Extension order dated 18.2.2020, whereby the period was extended for another six months upto 30th September, 2020. The State Government has again extended the term of contract vide order dated 1.10.2020 for another six months i.e. from 1.10.2020 to 31st March, 2021. Now the extended period of contract is expiring on 31st March, 2021. The State has issued First NIT on 18th March, 2020 for State Level Centralized Call Center/Dial-100 Project Phase II (2020-2025) "On Turn-Key Basis" for fresh grant of contract. Now the extended period of contract is expiring on 31st March, 2021. The State has issued First NIT on 18th March, 2020 for State Level Centralized Call Center/Dial-100 Project Phase II (2020-2025) "On Turn-Key Basis" for fresh grant of contract. According to the petitioner various objections were raised in respect of certain conditions and therefore no one participated in the process for awarding of NIT. Thereafter, the State Government issued a Second Call on 28.10.2020 with modified conditions but still no one participated in the Second Call also. Thereafter, the State issued revised 3rd Call e-Tender (NIT) document on 9.12.2020 for State Level Centralized Call Center/Dial-100 Project Phase-II (2020-2025) "On Turn Key Basis", by relaxing certain conditions of the first and second call. On-line bid submission date commenced from 9.12.2020 upto 18 hrs. and the last date of submission of on-line bid was 24.12.2020, upto 1800 PM. The date of opening of Bid was 26.12.2020 at 12:30 hrs. 4. In the Tender there is a requirement to deposit Earnest Money Deposit (EMD) in the form of Bank Guarantee to the tune of Rs. 2.50 Crores. According to the petitioner, the petitioner stared preparing for submission of the bid in right earnest and in pursuance thereof got prepared a Bank Guarantee of Rs. 2.50 Crores on 22.12.2020. It is asseverated that the petitioner's Company was making preparation for submission of the price bid on 24.12.2020 but the office of the Commercial Tax M.P. conducted a raid with respect to Goods and Service Tax (GST) on the very date and time for last date for submission of the document. The said raid continued in the office of the petitioner upto 20.00 hrs and thereafter the office was sealed. Due to the above the petitioner's Company was precluded from submitting its bid for the tender in question. It is stated that in the tender process only two firms participated at 11 hrs. i.e. Respondent No. 4 who submitted its bid at 05:45 PM and another firm GVK Management & Research Institute at 05:28 PM on 24.12.2020. The petitioner submitted that from the above facts it is clear that the bidders waited till it was ensured that the petitioner was not in a position to submit its bid and thereafter submitted its bid which later turned out to be lowest. 5. The petitioner submitted that from the above facts it is clear that the bidders waited till it was ensured that the petitioner was not in a position to submit its bid and thereafter submitted its bid which later turned out to be lowest. 5. It is alleged by the petitioner that the petitioner is presently working at a rate which comes to rupees 405 Crore annually for five years, whereas the respondent No. 4 has submitted bid to the tune of Rs. 642 Crore annual for five years with a clause for increase every year depending upon inflation. This shows that huge price difference between the rates of the existing contractor and the rates quoted by the Respondent No. 4. The technical bids of both the participants was evaluated after opening of price bids on 2.2.2021. The technical bids of both the bidders were held to be qualified. The petitioner raised its grievance on various forums but no action has been taken despite the reminder submitted by the petitioner on 21.2.2021. 6. The submission of learned counsel for the petitioner is that the respondents have carried out the entire exercise in arbitrary exercise of powers which suffers from outcome of malice and entire process deserves to be set aside. The petitioner's firm who is one of the strongest competitor to participate in the 3rd Revised Call was forcefully restrained by GST Team from participating in the Tender process. 7. Counsel for the petitioner submitted that in the facts of the present case and taking into consideration the vast difference of the rates on which the petitioner was earlier working and the rates which has been submitted by the respondent No. 4, the proceedings of the tender in pursuance to the impugned revised 3rd Call in relation to State Level Centralized Call Center/Dial-100 Project Phase-II (2020-2025) "On Turn Key Basis" deserves to be quashed and the respondents be directed to initiate fresh tender process. 8. In support of his submissions, the learned counsel for the petitioner placed reliance on the following judgments : (2010) 6 SCC 303 - Shimnit Utsch India Pvt. Ltd. & Anr. Vs. West Bengal Transport Infrastructure Development Corporation Ltd. & Ors.; (2014) 11 SCC 192 : AIR 2014 SC 2307 - State of Assam & Ors. Vs. Susrita Holding Pvt. Ltd.; (2015)13 SCC 233 : AIR 2014 SC 3358 - Rishi Kiran Logistics Pvt. Ltd. Vs. Vs. West Bengal Transport Infrastructure Development Corporation Ltd. & Ors.; (2014) 11 SCC 192 : AIR 2014 SC 2307 - State of Assam & Ors. Vs. Susrita Holding Pvt. Ltd.; (2015)13 SCC 233 : AIR 2014 SC 3358 - Rishi Kiran Logistics Pvt. Ltd. Vs. Board of Trustees of Kandla Port Trust & Ors.; (1994) 6 SCC 651 - Tata Cellular Vs. Union of India and (2000) 5 SCC 287 - Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation & Ors. 9. Learned counsel for the respondents/State submits that there is no arbitrariness on the part of the respondents in taking decision to finalize the tender of respondent No. 4. The petitioner could not establish any malafide or arbitrariness in the action of the respondents. It is further submitted that the petitioner was never interested in the tender process. On-line bid submission date commenced from 9.12.2020 but the petitioner got prepared the bank guarantee on 22.12.2020 just before the last date of submission of bid i.e. 24.12.2020. Further, there is no merit in the contention of the learned counsel for the petitioner that the petitioner firm was precluded from participating in the tender because of the action of the respondents. The action of raid was conducted by the Commercial Tax Department whereas, the tender was issued and finalized by the different department and different authorities i.e. Police Department. 10. We have heard learned counsel for the parties and bestowed our anxious consideration to the submissions made by the learned counsel for the parties. We do not find any merit in the petition. As per the term of the contract of the petitioner, the period of five years expired on 31st March, 2020. Thereafter, the State Government has extended the period by issuing first extension order dated 18.2.2020 whereas, the period was extended for another six months upto 31st September 2020, the State Government has extended the term of the contract vide order dated 1.10.2020 for another six months i.e. from 1.10.2020 to 31st March, 2020. The period of contract is to expire on 1st March, 2020. In the meantime, the respondents have issued first NIT on 18th March, 2020 for State Level Centralized Call Center/Dial-100 Project Phase-II (2020-2025) "On Turn Key Basis" for fresh grant of contract but since no one participated, the same could not be materialized. The period of contract is to expire on 1st March, 2020. In the meantime, the respondents have issued first NIT on 18th March, 2020 for State Level Centralized Call Center/Dial-100 Project Phase-II (2020-2025) "On Turn Key Basis" for fresh grant of contract but since no one participated, the same could not be materialized. Thereafter, another second call NIT was issued on 28.10.2020 with certain modified conditions but still no one participated in the same also. Thereafter, the respondents have issued 3rd Call e-Tender on 9.12.2020 by relaxing certain conditions of the 1st and 2nd Call. The on-line bid submission commenced from 9.12.2020 upto 18 hours and the last date of submission online was 24.12.2020 and the date of opening of the bid was 26.12.2020 at 12.30 hrs. The petitioner has sufficient time for making preparation for submission of the bid from 9.12.2020 till the last date i.e. 24.12.2020 but he opted to wait till 22nd December, 2020 to prepare the bank guarantee of Rs. 2.50 Crore to participate in the bid. On the last date a raid was conducted by the Commercial Tax, M.P. If the petitioner would have been interested to participate, he could have prepared the bank guarantee well in advance and could have submitted the bid much before the last date i.e. 26.12.2020. The two other tenderers submitted their bid on the last date, would not mean that it was compulsorily necessary for all the bidders to submit their bid on the last date of submission of bid. Even otherwise, for the same the respondents cannot be blamed that because of their action the petitioner was precluded from participating in the 3rd revised call. 11. The respondents have duly considered the two eligible tenderers who had submitted their bid well in time before last date of submission of the bid. There is no element of pick and choose as due process of tender was followed by the respondents. 12. The petitioner has relied upon the judgments passed by the Supreme Court in the case of Shimnit Utsch India Pvt. Ltd. (supra), wherein it has been held that State has administrative discretion to cancel entire tender process in public interest provided such action is not actuated with ulterior motive, arbitrariness, irrationality or is in violation of some statutory provisions. 12. The petitioner has relied upon the judgments passed by the Supreme Court in the case of Shimnit Utsch India Pvt. Ltd. (supra), wherein it has been held that State has administrative discretion to cancel entire tender process in public interest provided such action is not actuated with ulterior motive, arbitrariness, irrationality or is in violation of some statutory provisions. In the facts of the present case, there is no arbitrariness on the part of the respondents in finalizing the selection of respondent No. 4, especially when the petitioner had not submitted any bid before the cut-off date. Since the petitioner has not participated, therefore, his argument that the respondents could have fetched better price has no merit. The petitioner got advantage of already extended one year in two phases of six months for one or another reason. In the 3rd Call e-tender NIT the process commenced from 9.12.2020 and the petitioner got prepared the bank guarantee on 22nd December 2020 just few days before the last date. The respondents cannot be held responsible for the raid conducted by the Commercial Tax, M.P. under GST. 13. The judgment in the case of Susrita Holding Pvt. Ltd. (supra) the Apex Court held that "the sale may be either by public auction or private contract. In either case the trustee has to keep in mind that he must obtain the most advantageous price." In the facts of the said case the tender process was set aside and directions were issued for fresh tender but in the facts of the present case nothing has been brought by the petitioner to show in what manner the respondents have acted arbitrarily in finalizing the tender of the respondent No. 4. 14. In the case of Rishi Kiran Logistics Pvt. Ltd. (supra) it has been held that the respondents had a right to cancel the process which had not resulted in a concluded contract. The aforesaid judgment would not render any assistance in the facts of the present case. 15. In the case of Tata Cellular (supra) it has been held that Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. 15. In the case of Tata Cellular (supra) it has been held that Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. The same law has been reiterated in the case of Monarch Infrastruction (P) Ltd. (supra) that Government cannot arbitrarily choose any person it likes for entering into such a relationship or to discriminate between persons similarly situate. It is open to the government to reject even the highest bid at a tender where such rejection is not arbitrary or unreasonable or such rejection is in public interest for valid and good reasons. 16. In the present case the petitioner has failed to point out any arbitrariness on the part of the respondents in selection of respondent No. 4. The petitioner has to blame himself for not participating in the tender process. 17. In view of the aforesaid, we do not find any illegality or arbitrariness in decision making process of the respondents in finalizing the bid of the respondent No. 4, especially when the petitioner himself has not participated in the tender process. 18. Accordingly, the writ petition is dismissed.