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2022 DIGILAW 168 (JK)

Kodaik America v. UT of Ladakh

2022-04-19

DHIRAJ SINGH THAKUR

body2022
JUDGMENT : 1. With a view to understand the background in the light of which the present controversy has arisen, it is necessary to briefly state the material facts. 2. The Superintending Engineer, Mechanical Circle, Ladakh invited bids vide e-NIT No. SEM-L/e-NIT/02 of 2021-22 dated 15.7.2021 for Supply, Testing and Commissioning of six 3500 Ton per hour capacity Snow Blower (cutter) mounted on purposed built selfpropelled Carrier Vehicles from eligible bidders. There were six bidders, who participated in the Pre-Bid Meeting held on 21.08.2021 including the petitioner herein. Certain doubts expressed by the participants were said to have been cleared and suitable amendments made in the bidding document. Finally, Corrigendum-IV dated 25.08.2021 was issued based upon the suggestions put-forth by the various participants and the last date for submission of bids was fixed on 6.9.2021. 3. In the earlier round of litigation, the petitioner filed writ petition bearing WP(C) No. 2120/2021, which was disposed of vide judgment and order dated 13.10.2021 in which a coordinate bench of this court directed the respondents to accord consideration to the representation of the petitioner and pass a speaking order thereupon. A speaking order dated 29.10.2021 was accordingly passed by the Chief Engineer, Mechanical Engineering Department, Ladakh, Leh, which is impugned in the present petition. In the said speaking order, the official respondents rejected the suggestions made by the petitioner in the representation on the ground that the suggestions so made in the representation and the proposed changes in the technical specifications of the e-NIT were made only to suit the product of the petitioner, which was not possible in terms of financial probity and rules in vogue. 4. It appears that the petitioner did not at all participate in the bidding process whereas, the financial bids of the eligible bidders was opened on 27.09.2021. 5. According to the stand of the official respondents, all the technical specifications prescribed in the e-NIT were prescribed keeping in view the requirement of the respondents, as also keeping in view the quantum of heavy snow fall and the topography of the area in the Ladakh region. The official respondents also took a stand that the e-NIT in question had already culminated into a Supply Order dated 03.11.2021 and allotted the same in favour of the lowest bidder namely AEBI SCHMIDT, which is a Switzerland based company. The official respondents also took a stand that the e-NIT in question had already culminated into a Supply Order dated 03.11.2021 and allotted the same in favour of the lowest bidder namely AEBI SCHMIDT, which is a Switzerland based company. It was stated that the bid of the successful bidder, namely, AEBI SCHMIDT was at 19.80 lac Euros for six machines against the quoted bid of 26.40 lac Euros for six machines by M/s ZAUG AG EGGIWIL HOLZMATT. 6. It was urged that after the completion of all codal formalities, Supply Order dated 03.11.2021 was issued in favour of L-1 and as a sequel to the Supply Order, a letter of Credit was established and account opened in the J&K Bank at Srinagar for an amount of Rs. 20 crores. It was also urged that the snow cutters are under manufacture and are likely to be shifted on 09.06.2022 after third party pre-dispatch inspection. 7. In the present petition, the petitioner challenges not only the speaking order dated 29.10.2021 passed pursuant to the directions issued by the writ court in the previous round of litigation, but also seeks a mandamus, directing the respondents to initiate a fresh tendering process for the aforesaid work in a free and fair manner. 8. Heard learned counsel for the parties. 9. The main grievance of the petitioner as was reflected in the representation, which is on record, was in the following terms: (a) That the worldwide standard as also the Indian standard for wheeled construction vehicles was Euro-IV and, therefore, the technical specification for Euro-VI/BIS-VI should be amended. (b) The Cutter drive should be of mechanical power transmission, which will reduce the power loss against hydraulic power transmission, which has been deleted from the fresh tender document in which no drive system has been defined, which might have been done to favour some particular firm. (c) That the requirement of steering axle vehicle in the front was contrary to the decision in the pre bid meeting that the steering shall be of all wheel steering for better performance and maneuverability on hill roads. 10. From the aforementioned issues raised in the representation, it, therefore, appears that the product being manufactured by the petitioner was clearly not compliant with BIS-VI norm, which was prescribed finally in the tender document. 11. 10. From the aforementioned issues raised in the representation, it, therefore, appears that the product being manufactured by the petitioner was clearly not compliant with BIS-VI norm, which was prescribed finally in the tender document. 11. Even otherwise, the slight modification in the specifications of the vehicle sought to be procured by the official respondents was based upon various decisions and Pre-Bid Meeting held between the participating bidders. It is the final bid document in regard to which the official respondents had sought to invite bids from eligible bidders in which bidding process, it appears, the petitioner did not participate at all. 12. Needless to say that the petitioner cannot seek a mandamus for conducting the bidding process denovo only because the suggestions made by it were not accepted in the Pre-Bid Meeting. The stand of the official respondents is clear that the specifications were prescribed considering the quantum of heavy snow fall in the topography of the area in the Ladakh region. 13. Considering the fact that the petitioner had not at all participated in the bidding process and considering the fact that there is no perversity in the speaking order passed by the official respondents, no case for grant of any relief is made out in the present petition. Even otherwise, M/s AEBI SCHMIDT, who is the successful bidder and with whom supply order already stands placed vide order dated 03-11-2021 having not been incorporated as a party-respondent despite the fact that it was a necessary party, no relief at all can be granted in favour of the petitioner at this stage. 14. Be that as it may, the petition is found to be without any merit and is accordingly dismissed along with connected application(s).