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2023 DIGILAW 1300 (JHR)

Vaidya V & Infrastructure Pvt. Ltd v. State of Jharkhand through its Additional Chief Secretary, Public Health Department

2023-11-01

SANJAYA KUMAR MISHRA, SRI ANANDA SEN

body2023
ORDER : Ananda Sen, J. 1. The petitioner, in this writ petition, has prayed for the following reliefs: - (i) The petitioner prays for issuance of appropriate writ(s)/order(s)/ direction(s) or writ in the nature of mandamus commanding upon Respondent to issue work order in view of Letter of acceptance of Respondent No.02 for the supply of sanitary napkins @ Rs.2.99 per pad and Rs.23.92 per packet (8 napkins per packet) (Annexure 4); (ii) The petitioner prays for issuance of appropriate writ(s)/ order(s)/direction(s) or writ in the nature of mandamus commanding upon Respondent to enter into agreement with the Petitioner for supply of sanitary napkins as they are L-1 bidders and Letter of intent has been issued in its favour. (iii) The petitioner prays for issuance of appropriate writ(s)/ order(s)/direction(s) or writ in the nature of certiorari by quashing latest tender No. JMC/NIT-22/SN/99 dated 14.12.2022 (Annexure No.6). 2. Learned counsel for the petitioner submits that admittedly the petitioner was the lowest tenderer, pursuant to the Tender No. JMC/NIT-22-SN-18 dated 15.07.2022. Petitioner was called for negotiations where the petitioner reduced the rate. On 23.11.2022, the respondents informed the petitioner that the work has been awarded to the petitioner company. Further, the petitioner was directed to furnish their bank details so that the agreement can be entered into and the purchase order be issued. As per the petitioner, the petitioner furnished all the details and conveyed its readiness, but no order was issued to the petitioner, rather a fresh tender was issued on 14.12.2022. He contends that after issuance of letter of intent and after acceptance of the tender of the petitioner, respondents could not have issued fresh tender, without any rhymes or reasons. It is his contention that the action of the respondents is malafide, which led to filing of this writ petition. He argues that even as per the directions of the respondents, agreement was prepared and was sent to the respondents for signing the same. In fact, the petitioner had also signed the same, but the respondents sat tight over the matter. 3. The respondents-State filed their counter affidavit, wherein they have admitted that the procurement was for the year 2021-22 and the purchase order was kept on hold due to fresh rate set by the Government for which fresh tender was published inviting rate for the year 2022-23. 3. The respondents-State filed their counter affidavit, wherein they have admitted that the procurement was for the year 2021-22 and the purchase order was kept on hold due to fresh rate set by the Government for which fresh tender was published inviting rate for the year 2022-23. They submitted that once the rate is finalized from the fresh tenderers, the lowest rate which will be obtained for the year 2022-23, will be offered to the petitioner for supply of the intended quantity for the year 2021-22 and if the petitioner agrees and meets the agreement rate, petitioner will be issued the purchase order. They stated that the Government of Jharkhand informed that as per the new rate, which has been communicated, there is difference of Rs.5.92 per packet, which will impact the Government exchequer. Mr. Piyush Chitresh, learned counsel appearing for the respondents submits that the petitioner quoted Rs.30/-per packet of 8 pads, but reduced the same to Rs.23.92 per packet and as there was no option, his bid was accepted on the negotiated rate. He submits that thereafter for the year 2022-23, the allotment, which was received, if calculcated, will come to Rs.18/-per packet of 8 pads, thus, a decision was taken to issue a fresh tender, keeping the order in favour of the petitioner in abeyance. 4. After hearing the parties, we find that for the year 2021-22, the respondents issued Notice Inviting Tender for procurement of Sanitary Pads / Napkins. Admittedly, the petitioner quoted Rs.30/-per packet of 8 pads. The petitioner became the L-1. The respondents further negotiated the price and the petitioner lowered down the price to Rs.23.92 per packet of 8 pads. Respondents accepted the petitioner’s offer and letter of intent was issued in favour of the petitioner on 23.11.2022. The respondents also forwarded a copy of the agreement and directed the petitioner to sign the same and furnish the bank details. This fact suggests that the price was finalized at Rs.23.92 per packet of 8 pads. The respondents had accepted the same and forwarded the copy of the agreement. Petitioner, on the next day, i.e., 24.11.2022 accepted the rate and submitted the bank details. Petitioner also signed the agreement and forwarded the same to the respondents to complete the procedure on their part. Thereafter, no order was issued to the petitioner, rather the respondents, on 14.12.2022 issued a fresh tender. Petitioner, on the next day, i.e., 24.11.2022 accepted the rate and submitted the bank details. Petitioner also signed the agreement and forwarded the same to the respondents to complete the procedure on their part. Thereafter, no order was issued to the petitioner, rather the respondents, on 14.12.2022 issued a fresh tender. The stand taken by the respondents is that vide letter dated 09.11.2022, for distribution of sanitary napkins/pads, a lump sum amount of Rs.20 crore was only allocated. As per them, considering the aforesaid allocation, tentative price of the sanitary napkins / pads was calculated to be Rs.18 per packet containing 8 pads. Thus, the rate quoted by the petitioner is not matching with the grant, which has been sanctioned. This argument is not acceptable. The allocation of Rs.20 crore, as is evident from communication dated 09.11.2022 (Annexure ‘A’ to the Counter Affidavit), is for the financial year 2022-23, whereas the tender of the petitioner was for the year 2021-22. During argument, it was submitted that the respondents intends to make purchase for the financial year 2021-22 also. 5. When we go through the said letter of allocation, we do not find anything on record to suggest that the price of sanitary pads per packet was assessed or fixed. In the tender, which was issued on 15.07.2022, in which the petitioner had participated and was declared as L-1, there was no base price, fixed nor was there any upper cap of price for sanitary napkins. The petitioner being the L-1, in a open tender, was called for negotiation and after the petitioner had lowered the rate, petitioner’s rate was accepted and the respondents intimated the same to the petitioner and also informed that purchase order would be sent to the petitioner. Once the rates was crystalised between the parties and the respondents issued letter intimating that purchase order will be issued to the petitioner and also had sent a copy of the agreement for execution, which the petitioner had already executed, it was not proper to withhold the purchase order. Further, from the bid document in which the petitioner participated, Clause 1.1.3.2 clearly suggests that the validity of the offer of the successful bidder shall be at least for two years from the date of finalization of the order and the successful bidder shall be bound to supply the items at the rate and terms during this period. Further, from the bid document in which the petitioner participated, Clause 1.1.3.2 clearly suggests that the validity of the offer of the successful bidder shall be at least for two years from the date of finalization of the order and the successful bidder shall be bound to supply the items at the rate and terms during this period. Be it noted that the offer was accepted on 23.11.2022, thus, as per the said clause, offer of the petitioner is valid for two years, i.e., up to 22.11.2024. Once the parties have agreed to the terms and conditions and finalized the same, there is no justifiable grounds on the part of the respondents not to issue purchase order in favour of the petitioner. 6. In view of what has been observed and discussed above, we find merit in this writ petition. Thus, we are inclined to allow this writ petition. Respondents are directed to issue purchase order in favour of the petitioner as early as possible, as per the rate accepted by the parties. 7. This writ petition stands allowed. Pending interlocutory applications, if any, stand disposed of. 8. There shall be no orders as to costs. Urgent certified copies of this order shall be issued as per the Rules.