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2024 DIGILAW 141 (KAR)

Green Energyz v. Bharat Heavy Electricals Ltd.

2024-02-15

M.NAGAPRASANNA

body2024
ORDER : M.Nagaprasanna, J. - The petitioner is before this Court calling in question the Order/decision of the respondent No.2-Bharat Heavy Electricals Limited ('BHEL' for short), rejecting the bid submitted by petitioner pursuant to a tender notification for the purpose of 'design, supply and assembly of Floating System and Associated Anchoring and Mooring for Development of 300 MW AC capacity Floating Solar Power Project at Rengali Reservoir at Angul District in the State of Odisha. 2. Heard Sri. Parashuram A.L. Advocate for petitioner and Sri. Keerti Kumar D. Naik, advocate for respondent Nos.1 and 2. 3. The petitioner claims to be a partnership firm established in the year 2020 and is recognized as a Start-Up by the Department for Promotion of Industry and Internal Trade (DPIIT), Ministry of Commerce and Industry, Government of India. Petitioner also claims to have registered under the provisions of Micro, Small and Medium Enterprises Development Act, 2006. The 2nd respondent-BHEL issues a notice inviting tender on 24.08.2023 for the afore-quoted work and then invites all the vendors for a pre-bid meeting for the 'Design, Supply and Assembly of Floating System'. The petitioner is also one of the participant in the pre-bid meeting held by the BHEL with all intending tenders. Pursuant to the pre-bid meeting, petitioner submits his tender on 31.08.2023 and 01.09.2023. The technical bid of the petitioner comes to be rejected by the respondent No.2-BHEL in terms of the impugned Order dated 10.09.2023. It is this rejection that has driven the petitioner to this Court in the subject petition. 4. Learned counsel appearing for the petitioner -Sri. Parashuram, would submit that rejection of technical bid of the petitioner is contrary to law, as it is a Start-up and it is exempted from prior turn over and prior experience in terms of clause 58 of tender document. He submits that rejection is erroneous as petitioner had purchased floats from one Chinese entity by name Sungrow, which was permissible for the petitioner to do so, in terms of clause 8 of the tender. Learned counsel submits that the rejection is on the face of it contrary to the tender document and therefore, merits interference at the hands of this Court. 5. Per contra, the learned counsel appearing for the respondent Nos.1 and 2-Sri. Learned counsel submits that the rejection is on the face of it contrary to the tender document and therefore, merits interference at the hands of this Court. 5. Per contra, the learned counsel appearing for the respondent Nos.1 and 2-Sri. Keerti Kumar D. Naik, would submit that the petitioner, in terms of clause 8 had purchased the floats from the Chinese entity by name Sungrow. It is the submission that BHEL corresponds with Sungrow and gets to know that the petitioner had not been authorized by Sungrow, as Sungrow, the Chinese entity had itself bid, as a joint bid with another entity. Therefore, the bid of the petitioner comes to be rejected and no fault can be found with same. 6. Learned counsel for the petitioner contends that he is now caught between Sungrow and BHEL. The BHEL could not have behind his back communicated with Sungrow and scored the said communication with regard to authorization. He submits that there is no requirement of authorization and he may be permitted one more opportunity to participate in the tender. 7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. 8. The aforenarrated facts are not in dispute. Petitioner being a Start-up, is a matter of record. Notice inviting tender comes to be issued by BHEL for the following purpose: "Subject: Tender invitation to Enter into Pre- Bid Tie-up for Design, Supply and Assembly of Floating System and Associated Anchoring & Mooring for development of 300MW AC Capacity Floating Solar Power Project at Rengali Reservoir at Angul district in the state of Odisha." The petitioner participates in the tender. The technical bid of the petitioner comes to be rejected, the tenability of such rejection is what requires consideration at the hands of this Court. 9. For resolution of the issue in the lis, it is necessary to notice certain clauses in the tender. Clause 8 reads as under: "8. Price basis: Indigenous purchase-Price to be quoted on Ex-WORKS, inclusive of packing & forwarding charges. Taxes and duties to be paid in line with GCC. Material to be dispatched on freight pre-paid basis to Consignee basis (BHEL Site 300MW AC Floating Solar Power Plant, Rengali). Price to be quoted as per attached format (Unpriced Price Bid). Transit Insurance is in the scope of BHEL. Taxes and duties to be paid in line with GCC. Material to be dispatched on freight pre-paid basis to Consignee basis (BHEL Site 300MW AC Floating Solar Power Plant, Rengali). Price to be quoted as per attached format (Unpriced Price Bid). Transit Insurance is in the scope of BHEL. Foreign purchase-Price to be quoted as per attached format (Price Bid for below: -DDP-Consignee basis (BHEL Site 300 MW AC Floating Solar Power Plant, Rengali). -Transit Insurance is in bidders scope. All the other applicable taxes including income taxes (TDS) as per prevailing Indian law shall be deducted from the payables & paid to Govt. by BHEL." Clause 58 reads as follows: "58. Relaxation in Public Procurement Norms for Startups: For all public procurement, the criteria of prior turnover and prior experience for all Startups is relaxed subject to their meeting of quality and technical specifications. DPIIT (Department for Promotion of Industry and Internal Trade) Certificate of Recognition for Startups to be submitted for availing benefits." Pre qualification required to participate in the tender reads as follows: "The bidder must have essentially executed at least one FSPV Plant of minimum capacity of 5 MWp. The bidder for above execution should have designed and supplied the floater BOQ and the anchoring and mooring system too." 10. The petitioner is a Start-up. It is the claim of the learned counsel for the petitioner that all norms are relaxed for a Start- up. The submission is unacceptable. Relaxation in public procurement norms for Start-up is what is permitted in clause 58 supra. For all public procurement, the criteria of prior turn over and prior experience for all Start-ups is relaxed subject to them meeting quality and technical specifications. 11. The petitioner purchases floats from the hands of Sungrow, a Chinese company exercising its rights under clause 8 supra. Petitioner submits his bid, claims that he intends to purchase from one Chinese company i.e., Sungrow, on its strength he has submitted his bid. 12. Learned counsel for the petitioner has taken this Court through the e-mail correspondence between petitioner and Sungrow. They are dated 31.08.2023 and 01.09.2023, both of which read as follows: "31 August 2023 at 19:18 Dear Sir, Greetings! We introduce ourselves as a Start-Up India Recognized 'DIPP54376', MSME Registered 'UDYAM- UP-29-0001962' Firm. Govt. of India issued a Tender of 300 MW Floating Solar Power Plant in Angul Odisha. 1. They are dated 31.08.2023 and 01.09.2023, both of which read as follows: "31 August 2023 at 19:18 Dear Sir, Greetings! We introduce ourselves as a Start-Up India Recognized 'DIPP54376', MSME Registered 'UDYAM- UP-29-0001962' Firm. Govt. of India issued a Tender of 300 MW Floating Solar Power Plant in Angul Odisha. 1. Start-Up is Relaxed for Prior Experience and Prior Turnover Criterion(SCC Clause 58-Page No.19) 2. Work Period: 12 Months (Clause 8 of Annexure-II of Technical Specs) 3. Due on :02.09.2023. 4. BOM can be splitted in Two Parts: L1:247.5MW & L2:148.5MW. Please providing us the following documents (As per Technical Specifications: Clause 5):- 1. MAF. 2. Company Documents like Statutory Registrations, ISO Certificates, etc. 3. CE Certificates 4. Type Test Reports of the various test connected on the floaters (By Recognized Laboratories like TUV/SGS). 5. Product Brochures related to Anchoring & Mooring System AND Floating System. 6. Details and Drawings of the HDPE floaters (including Guaranteed Technical Parameters-GTP) as per the International Standards. 7. Sample Block Layout. 8. Details of the Parent Technology Provider/Partner for HDPE Floaters. 9. Details of the Raw Material Suppliers 10. Indicative MQP (Material Quality Plan) and FQP (Field Quality Plan) of the HDPE Floaters. 11. Details of Base Polymer Grades used for HDPE Floaters. 12. Details of Manufacturing plant capacity (On Letterhead or Manufacturing Assessment Certificate by TUV). 13. Details of the Moulds for respective floaters available with the bidder (On Letterhead). 14. Best Competitive Rates for Anchoring & Mooring System AND Floating System considering the Technical Specifications Clause 06-07)Page No.04-13) AND Annexure-II: Clause 5 & 6 (Page No.31). Kindly support a Start-Up by providing the above requisites so that we can submit the Bid by 02.09.2023." "1 September 2023 at 12:32 Kindly see the attached Project Information Sheet along with Site Survey Report & Non Disclosures Agreement. Please send us the Duly Signed & Scanned Copy of Non-Disclosure Agreement by Return Mail. And, provide the Documents mentioned in Trail Mail to participate in the Bid." "1 September 2023 at 13:28 Dear Sir, In such short period, its really difficult to provide all required documents. Will provide you with best possible." This e-mail is confidential. It may also be legally privileged. If you are not the addressee you cannot copy, print, forward, disclose or use any part of it. Will provide you with best possible." This e-mail is confidential. It may also be legally privileged. If you are not the addressee you cannot copy, print, forward, disclose or use any part of it. If the above situations happen or the mail has any dimness or missing, please delete it and all copies from your system and notify the sender immediately by e-mail, tel or fax... Thank you for your cooperation". 13. The communication clearly indicates that the petitioner is wanting to purchase the floats from Sungrow for submitting his bid. On the strength of the said communication, petitioner has submitted his bid. The respondents, after the submission of the bid of the petitioner which was on the strength that Chinese entity communicates with regard to authorization granted for such purchase. The communication is on two dates. One on 15th September 2023 which the authorized representative of Sungrow communicates to the BHEL, it reads as follows: "Respected Sir, Further to submission of all documents, it has came to our notice that many companies are quoting with our floater technology, we hereby declaring that Sungrow has given Authorization only to M/s Bharattech Smart Industrial Pvt. Ltd. (BSI) to quote for this tender and we have not given Authorization to anyone else. Further we declare that we don't allow anyone to use Sungrow's floater technology, drawings and documents for this tender". 14. The Company i.e., Sungrow, Chinese entity, declares that it has given authorization only to M/s Bharattech Smart Industrial Pvt. Ltd., and not to anyone else. 15. The next communication is on 18.09.2023, which reads as follows: "To Green Energyz, CC: BHEL We are shocked to hear this complaint from you. Its baseless to complain a supplier in this case. Firstly, Sungrow FPV is just a supplier of floaters, our key role is supporting different developers and EPC contractors to provide them technical solution and budgetary offer. It is very common practice to give Green Energyz such support at initial stage, same we also did to M/s BHEL, NTPC and SJVN in different projects. Our role is very clear and its known by the most clients in the market. Green Energyz is not a floater manufacturer, I think there is no issue to ask a solution and budgetary offer from Sungrow FPV to guide you. But you should not misunderstand and misguide. Our justification as below: 1. Our role is very clear and its known by the most clients in the market. Green Energyz is not a floater manufacturer, I think there is no issue to ask a solution and budgetary offer from Sungrow FPV to guide you. But you should not misunderstand and misguide. Our justification as below: 1. Sungrow never give anything in stamp and signature to you for this project. Because we maintain common practice that we are supporting different clients for solution and budgetary offer during preliminary stage. 2. We didn't give you any authorization letter to use Sungrow qualification. Of course you can recommend Sungrow gloats to client, but using the Qualification/ certification should get Sungrow prior consent. Please be clear that we are only give budgetary offer to you without bonding obligations. If you continue ruin our name or other harmful activities to our brand, we reserve the right to take legal action immediately. Our support to BHEL is not started from this project. We had been supporting BHEL for many projects already and our support to BHEL will continue." 16. The authorized representative of Sungrow expresses his shock over the complaint from BHEL, contending that they have issued authorization to two entities. It stood clear that they have not issued any authorization to the petitioner to submit the bid on the strength of Sungrow, as Sungrow itself had issued authorization to one M/s Bharattech Smart Industrial Pvt. Ltd. Therefore, petitioner annexed/attached all PDF documents of Sungrow which are brochures and not the authorization while submitting the bid. Therefore, no fault can be found with the respondents in rejecting the bid of the petitioner on the score that the petitioner does not have the capacity to undertake the work that he is now wanting to bid for. The exemption of the Start-up is only with regard to the prior financial requirement and experience but not the quality for technical specifications, a Start-up would maintain. The technical specification which the petitioner has projected is with an entity in China, which itself has disowned the petitioner (supra). Therefore, petitioner does not in the considered view of the court possess technical specification to undertake the project. In that light this Court does not sit in the arm chair of the tender inviting authority and direct the petitioner's bid to be considered giving a go by to the technical specifications that the respondent would want. Therefore, petitioner does not in the considered view of the court possess technical specification to undertake the project. In that light this Court does not sit in the arm chair of the tender inviting authority and direct the petitioner's bid to be considered giving a go by to the technical specifications that the respondent would want. 17. Finding no merit, petition stands rejected. 18. Interim order of any kind subsisting stands dissolved.