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Madhya Pradesh High Court · body

2023 DIGILAW 631 (MP)

Pratham National Security v. State of M. P.

2023-06-26

PRAKASH CHANDRA GUPTA, SUSHRUT ARVIND DHARMADHIKARI

body2023
ORDER Heard finally, with the consent of the parties. 1. In this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the order dated 7.11.2022 by which the tender bid of Private Respondent No.6 has been accepted. In spite of various irregularities ignoring the fact that the petitioner is the L-1. 2. The brief facts of the case are that tender (NIT) was floated on 3.8.2022 by the respondent No.4 to grant annual contract of House Keeping Services, Support Staff Services and Computer Operation Services in District Dewas. 3. The petitioner as well as respondent No.6 participated in the Bid. After opening of the Bid, even though the petitioner being L-1 was not declared as successful bidder whereas, the respondent No.6 was declared as L-1. 4. That, no reasons were informed by the petitioner even though being L-1 was not awarded the tender. The petitioner also pointed out several irregularities in respect of bid of respondent No. 6 but no heed was paid to the grievance of the petitioner and the respondent No.6 has been wrongly awarded the tender. Being aggrieved, the petitioner has approached this Court seeking cancellation of tender awarded to respondent No.6. It is only after reply having been filed on behalf of respondent Nos. 1 to 5, the petitioner came to know the reason for rejection of tender. The reason assigned is that it was found that the rates quoted at the instance of the petitioner with respect to Total Monthly cost of Consumables was less than 10%. The petitioner at its own instance and as per its own accord had calculated the wages only for 26 days instead of 30 days. 5. The petitioner had pointed out various irregularities in respect of respondent No. 6 which are as follows:- (1) The respondent No.6 submitted the tender document treating it to a “Proprietorship concern” (clear from the affidavits and seal affixed over on the document). As per the certificate, the respondent No.6 is incorporated as “Partnership concern”. The experience certificate annexed shows that the respondent No.6 is a “ Private Ltd. Company”. The same is not permissible as per eligibility criteria as mentioned in Clause No.5 of the Tender documents. In all these sub-clauses, different-different entities certificates have been annexed by the respondent No.6. As per the certificate, the respondent No.6 is incorporated as “Partnership concern”. The experience certificate annexed shows that the respondent No.6 is a “ Private Ltd. Company”. The same is not permissible as per eligibility criteria as mentioned in Clause No.5 of the Tender documents. In all these sub-clauses, different-different entities certificates have been annexed by the respondent No.6. (2) Clause 5(10) of the Tender Document requires copy of valid registration certificate under the Contract Labor (Regulation and Abolition Act, 1970) but the registration certificate is of Private Ltd. Company. As per Tender Document, the Proprietorship Concern only was eligible to participate in the tender and, therefore, the documents submitted by the respondent No.6 ought to have been of the “Proprietorship Concern” only. (3) As per Clause 5(11) provides that the requirement of Income Tax and other entitlement should be of Proprietorship Concern. However, the document submitted by the respondent No. 6 is of different concerns/entities having different names (4) The respondent No. 6 did not fulfill the eligibility criteria in spite of that the tender has been awarded to respondent No.6. 6. The eligibility criteria is reproduced below:- Eligibility Criteria: All tenderer are compulsory required to do indexing of documents, starting from Eligibility criteria No.1 to No.15 1. The Tenderer should registered under Indian Proprietorship Registration Act 1908/ Indian Partnership Act 1932/Companies Act 1956, Societies/Trust registered under applicable statutes in India. 2. The copy of Firm's Registration/ Incorporation Certificate with relevant authority in India. 3. The Tenderer must have achieved minimum average turnover of Rs. 2 crore during last three financial years (2018-19, 2019-20 and 2020-21) and should be profit making. 4. Certificate Statement of average annual turnover of latest last three years (2018-19, 2019-20 and 2020-21), in support of eligibility criteria mentioned above,from a registered practicing Chartered Accountant with UDIN. 5. Certificate from authorized Chartered Accountant regarding net worth of firm minimum to 75 lakhs. 6. Certificate from bank regarding Solvency of firm minimum to 75 lakhs. 7. Audited Balance Sheet along with Profit & Loss Statement of latest three financial years (2018-19, 2019-20 and 2020-21) with UDIN. 8. Income Tax Return certificate of last three financial years. 9. The Tenderer should have minimum three years' experience in doing similar nature of work and have successfully completed the same. 7. Audited Balance Sheet along with Profit & Loss Statement of latest three financial years (2018-19, 2019-20 and 2020-21) with UDIN. 8. Income Tax Return certificate of last three financial years. 9. The Tenderer should have minimum three years' experience in doing similar nature of work and have successfully completed the same. In support of this, tenderer should submit the copy of such work orders along with satisfactory completion certificates issued from at least three clients. (a) The Tenderer should have minimum One year experience of 100 beded government Hospital/Private Hospital. (b) Self-attested copies of work Orders and Client's Satisfactory Certificates in support of qualification criteria as given below in (c). (c) The Tenderer should meet any one of the three criteria as under:- i. Should have successfully completed ONE similar work of value equal to Rs. 75 lakh or more from any reputed large Hospital/Educational/Research Institutions, Universities/Hospitals run by Central Government/ State Government Departments, Public or Private Sector Companies/ Undertakings, Autonomous Bodies in last three years. OR ii. Should have successfully completed TWO similar work of value equal to Rs. 50 Lakh each or more each from any reputed large Hospital/Educational/Research Institutions, Universities/ hospitals run by Central Government/ State Government Departments, Public or Private Sector Companies/ Undertakings, Autonomous Bodies in last three years. OR iii. Should have successfully completed THREE similar work of value equal to Rs. 25 Lakh each or more each from any reputed large Hospital/Educational/Research Institutions, Universities/ hospitals run by Central Government/State Government Departments, Public or Private Sector Companies/ Undertakings, Autonomous Bodies in last three years. 10. Self-attested copy of valid registration certificate under Contract Labour (Regulation and Abolition) Act 1970. A single copy of valid Registration certificate of 100 labours under Contract Labour (R&A) Act 1970. 11. The Tenderer should be registered for Income tax, GST and EPF. Self-attested copy of GST registration certificate, Employee Provident Fund (EPF) and PAN card. 12. The Tenderer should have registered with labour welfare. 13. The Tenderer should have atleast 200 employees on its rolls specifically trained for Housekeeping work. Full list of the employees, viz, name, age, employee code, designation, experience in the field of Security, PF, ESI deduction and details etc. should be attached with the Technical Bid. Tenderer should also submit details of the health and safety measures which the tenderer has taking for his workers. Full list of the employees, viz, name, age, employee code, designation, experience in the field of Security, PF, ESI deduction and details etc. should be attached with the Technical Bid. Tenderer should also submit details of the health and safety measures which the tenderer has taking for his workers. The Tenderer should submit proof of EPF deduction & deposit to relevant authorities during one year, specifically of financial quarter 1st and 2nd financial year 21-22, Attached Paid PF Bank Receipt & PF Challan Copy. 14. The Bidder should not black listed from any Government/PSU's/Central Government. Undertaking. The Tenderer should not be blacklisted or Debar either by the Tender Inviting Authority or by any State Government or by Government of India if the tenderer has been blacklisted or Debar it will not be considered & will be rejected in technical bid. Declaration for not having been blacklisted or debar by any Tender Inviting Authority or by any State Government or by Government of India. 15. EMD of required amount i.e. Rs. 2 lakhs. 16. Service Receiver has reserve right for selection or Rejection to Best Business Module of Participated Company. 7. Learned counsel for the petitioner contended that as a general proposition it cannot be said that an Authority Inviting Tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to wave even a technical irregularities of little or no significance. The requirements in a tender notice classified into two categories- (i) Those which lay down essential conditions of eligibility and (ii) which are merely ancillary or subsidiary within the main object to be achieved by the condition. At the first instance, the authority issuing the tender may be required to enforce them rigidly whereas, in other cases it must be open to the authority to deviate from and not insist upon the strict literal compliance of the condition in appropriate case. The petitioner had submitted the tender document strictly in accordance with the eligibility criteria. However, due to inadvertence, the remuneration for the Housekeeping Staff etc. was calculated for the purpose of ESIC and EPF, Salary for 26 days instead of 30 days, as per Collector Dewar letter dated 22.4.2022. The petitioner had submitted the tender document strictly in accordance with the eligibility criteria. However, due to inadvertence, the remuneration for the Housekeeping Staff etc. was calculated for the purpose of ESIC and EPF, Salary for 26 days instead of 30 days, as per Collector Dewar letter dated 22.4.2022. The aforesaid minor technical error falls within the non essential or ancillary/ subsidiary requirement, therefore, the respondent authority ought to have deviated little bit and asked the petitioner to correct the same. The aforesaid technical defect does not make the petitioner ineligible for grant of award of tender, other conditions having been fulfilled. 8. Looking to the fact that large number of irregularities were noticed and pointed out by the respondent No.4, therefore, the respondent No.6 could not have been awarded the tender/contract. In view of the aforesaid, the order impugned dated 7.11.2022 (Annexure P-4) so far as, award of tender to respondent No.6 is concerned, may be set aside. Further, the petitioner being L-1 and having satisfied all the tender conditions may be awarded the contract/tender. 9. Per contra, learned counsel for respondent Nos. 1 to 5 vehemently opposed the prayer and submitted that interference in contractual matters should not be entertained unless the Court is satisfied that there is some element of public interest involved in entertaining such a petition. For example, the dispute is purely between two tenderer, the Courts must be careful to see if there is any element of public interest involved in the litigation. Mere difference in the prices offered by the two tenderer may or may not be decisive in deciding whether any element of public interest involved in intervening in such a commercial time of action. The other aspect which requires consideration is would there be any delay or escalation of cost which would ultimately effect the public at large. Therefore, unless the Court is satisfied that there is a substantial amount of public interest, or the transaction is entered into malafide, the Court should not intervene under Article 226 in disputes between two rival tenderer. In the instant case, no malafides have been pleaded. The petitioner having wrongly calculated the price bid with regard to salary/wages of the rendering services of the laborer, the answering respondent has rightly rejected the bid of the petitioner. So far as minor irregularities even if committed by the respondent No.6 those can be ignored. In the instant case, no malafides have been pleaded. The petitioner having wrongly calculated the price bid with regard to salary/wages of the rendering services of the laborer, the answering respondent has rightly rejected the bid of the petitioner. So far as minor irregularities even if committed by the respondent No.6 those can be ignored. It is not in dispute that the respondent No.6 is having 2/3 different companies, therefore, annexing wrong documents inadvertently would not dis-entitle them from grant of contract/tender as such no interference is called for and the petition deserves to be dismissed. 10. The counsel for the respondent No.6 submitted that no interference is called for and the writ petition deserves to be dismissed. Since the reply filed by the respondent Nos. 1 to 5 justifies their action in respect of above bid, therefore, the present answering respondent adopts the reply. It is further submitted that the agreement between the respondent No.6 and respondent No4 has already been executed and the work order was issued on 9.11.2022 and the answering respondent has also started the work and continuing the same smoothly. Therefore, the present petition is liable to be entertained and the same is liable to dismissed. 11. Heard the learned counsel for the parties. 12. The apex Court in the case of Jagdish Mandal v. State of Orissa and others reported in (2007) 14 SCC 517 in Paragraph 22 has held as under:- “a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following question: (i)Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; OR Whether the process adopted or decision made is so arbitrary and irrational that the Court can say:”the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”; (ii)Whether public interest is affected. 13. Admittedly, the petitioner had quoted the bid price taking 26 days out of 30 days into consideration, ignoring the circular issued by the Collector Dewas, dated 22.04.2022, which provides for consideration/calculation of wages taking 30 days into account. It is not in dispute that the work order has been issued on 09.11.2022 and the respondent No.6 is continuing to perform the contract. It is not in dispute that the work order has been issued on 09.11.2022 and the respondent No.6 is continuing to perform the contract. This Court refrains from interfering in the aforesaid matter in exercise of power of judicial review in as much as, the process adopted by the authority cannot be termed as malafide, since there is no specific pleading to that effect in the writ petition and vague assertion of malafides would not help the petitioner. 14. On perusal of the record, only due to some technical errors the process adopted or decision made cannot be termed as arbitrary or irrational, that this Court can come to the conclusion that the decision is such that no responsible authority acting responsibly in accordance with the relevant law could have reached. Moreover, looking to the fact that the tender relates to the outsourcing of services for the purpose of Housekeeping, Support Staff Services and Computer Operator Services, if interfered at this stage, would effect public interest at large. 15. In view of the aforesaid conspectus of the matter, this Court refrains from entertaining the present writ petition. Accordingly, the same is hereby dismissed. No order as to costs.