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2024 DIGILAW 547 (UTT)

S. S. Filling Station v. State of Uttarakhand

2024-08-14

RAKESH THAPLIYAL, RITU BAHRI

body2024
JUDGMENT : Ritu Bahri, C.J. Present writ petition has been filed by the petitioner seeking the following reliefs:- “(i) Issue a writ, rule, order or direction in the nature of certiorari calling for record and to quash and struck down the eligibility condition no. (Jha) and condition no. 30 of the General Condition as mentioned in the Tender Notice dated 23.2.2024 issued by respondent department (contained as Annexure No. 4 to the writ petition), as it restricts the proper competition in tenders, which is against the Procurement rules. (ii) Issue a writ, rule, order or direction in the nature of certiorari, calling for record and to quash the order dated 1.3.2024 (contained as Annexure No. 5 to the writ petition), whereby the respondent no. 3 declared the petitioner technically disqualify. (iii) Issue a writ, rule, order or direction in the nature of mandamus, commanding and directing the respondents to evaluate the technical bid of petitioner, ignoring the eligibility condition no. (Jha). (iv) Issue a writ, rule, order or direction in the nature of mandamus directing the respondents to declare the petitioner’s bid responsive, and declare the petitioner qualified in technical evaluation. (v) Issue a writ, rule, order or direction in the nature of mandamus to direct the respondents to include the name of the petitioner in financial evaluation and open financial bid of the petitioner by treating the bid of the petitioner in technical evaluation. (vi) Pass any other / further suitable order which this Hon’ble Court may deem fit and proper in the circumstances of the case. (vii) Award the cost of writ petition to the petitioner.” 2. Petitioner is a proprietorship firm and deals in retail business of petroleum. They decided to extend their business. Now they have GST Registration No. 06APJPK7687M2Z0 and also have GST HSN Code 2306. 3. Respondent No. 2 issued a tender notice on 13th December, 2023 for supply of various items including production of DORB (D-Oiled Rice Bran) and other items. The petitioner participated in the bidding process for production of DORB. They decided to extend their business. Now they have GST Registration No. 06APJPK7687M2Z0 and also have GST HSN Code 2306. 3. Respondent No. 2 issued a tender notice on 13th December, 2023 for supply of various items including production of DORB (D-Oiled Rice Bran) and other items. The petitioner participated in the bidding process for production of DORB. On 6th January, 2024, the Bid Evaluation Committee opened the technical bid of all the bidders and technically disqualified the petitioner firm on the ground that “the petitioner firm had applied for rectification in GST HSN after the publication of tender notice.” Thereafter, respondent No. 2 re-tendered for supply of DORB on 23rd February, 2024, in which also the petitioner participated, and on 1st March, 2024, the petitioner firm was disqualified in the technical evaluation on the ground of non-availability of experience certificate. The respondent-Department awarded the tender in favour of M/s Laxmi Foods for the total bid amount of Rs. 13,88,25,000/- for supply of DORB. The petitioner firm made complaints to respondent No. 2 regarding the mala fide attitude of the respondents. 4. The main grievance of the petitioner firm is that with respect to the first e-tender notice dated 13.12.2023, the bid of M/s Laxmi Foods was found to be the lowest, who had quoted the rate of Rs. 1331 per ton and in the second e-tender notice dated 23.02.2024, M/s Laxmi Agro Seeds Beria Road Lakhanpur, Bazpur, who was L-1, has been declared as the successful bidder. 5. On notice of this petition, a supplementary counter affidavit has been filed by respondent Nos. 2 & 3 dated 11th July, 2024. In Paragraph No. 6 of their reply, it is stated that the petitioner firm was not having the experience certificate as mentioned in the conditions of the e-tender notice dated 13th December, 2023 and in Paragraph No. 7, they have given the details of the rates submitted by the participants pursuant to the e-tender notice, which are as under:- Sl. No. Name of Firm Minimum rate (including all taxes FOR) 1. M/s Laxmi Food Bazpur Rs. 1331.80 L-1 2. M/s Agarwal Feed Store Rs. 1667.00 3. M/s Radha Enterprises Rs. 1729.00 4. M/s Consul Rice Mill Rs. 1499.00 6. M/s Laxmi Foods Bazpur was declared successful bidder, but they did not execute the tender agreement and, thereafter, re-tendering process was started. M/s Laxmi Food Bazpur Rs. 1331.80 L-1 2. M/s Agarwal Feed Store Rs. 1667.00 3. M/s Radha Enterprises Rs. 1729.00 4. M/s Consul Rice Mill Rs. 1499.00 6. M/s Laxmi Foods Bazpur was declared successful bidder, but they did not execute the tender agreement and, thereafter, re-tendering process was started. Re-tender notice was issued on 22nd February, 2024 and the details of the rates given by the firms are as follows: Sl. No. Name of Firm Minimum rate (including all taxes FOR) 1. M/s Laxmi Agro Seeds Rs. 1628.30 L-1 2. M/s Sri Dhan Laxmi Foods Rs. 1789.90 3. M/s Radha Enterprises Rs. 1689.00 7. M/s Laxmi Agro Seeds submitted the minimum rates and was declared successful. After negotiation with M/s Laxmi Agro Seeds, the rates were fixed at Rs. 1621.00 per quintal. Photocopies of the Note-Sheets dated 04.03.2024, 05.03.2024 and 11.03.2024 are annexed as Annexure SCA-3 collectively with the supplementary counter affidavit. It is further clarified that M/s Laxmi Foods Bazpur and M/s Laxmi Agro Seeds are not sister firms. M/s Laxmi Foods Bazpur is a partnership firm, whereas M/s Laxmi Agro Seeds Bazpur is a proprietary firm. However, it is further stated that respondent No. 3 is a unit of respondent No. 2. 8. The main argument of the learned counsel for the petitioner is that pursuant to the e-tender notice dated 23rd February, 2024, the proceedings have been finalized. However, the condition of work experience could not have been mentioned in the tender notice. 9. In the tender notice dated 13th December, 2023 issued by respondent No. 3, the condition regarding experience could not be mentioned. In the re-tender notice dated 23rd February, 2024, this mistake has now been rectified and the condition regarding the experience has been added by respondent No. 3 as Condition No. (Jha). 10. Pursuant to the order dated 15th July, 2024 passed by this Court, another affidavit dated 1st August, 2024 has been filed by Mr. Jaideep Arora, Managing Director, Uttarakhand Cooperative Dairy Federation Ltd., Mangal Parao, Haldwani, District Nainital on behalf of respondent Nos.2 & 3. In this affidavit, it is further clarified that as per the Uttarakhand Procurement Rules, 2017, the condition of experience can be made. Jaideep Arora, Managing Director, Uttarakhand Cooperative Dairy Federation Ltd., Mangal Parao, Haldwani, District Nainital on behalf of respondent Nos.2 & 3. In this affidavit, it is further clarified that as per the Uttarakhand Procurement Rules, 2017, the condition of experience can be made. The relevant rule providing the condition of experience is Rule 20(2)(Ka) thereof, which reads as under:- ^^¼d½ fufonkrkvksa ds fy, vko';d vgZrk rFkk ik=rk ds ekin.M&tSls U;wure Lrj dk vuqHko fdruk gS] foxr dk;ZiwfrZ ¼ijQkjesal½] rduhdh dk;Z {kerk] fofuZekZ.k dh lqfo/kk;sa] foRrh; fLFkfr vkfn] ftudk fufonknkrk }kjk iwjk fd;k tkuk vko';d gksxk]** 11. It is further clarified that if such a condition is not mentioned in the tender, it can be mentioned in the re-tender process under Rule 20(16) of the aforesaid Rules. Rule 20(16) of the Uttarakhand Procurement Rules, 2017 reads as under:- HINDI (The procurement was satisfactorily advertised and sufficient time was given for submission of bids) c½ fufonk dh 'krsZa @ fof'kf"V;ka vuko';d :i ls lhfer u jgh gksa A (The qualification criteria / Specification were not unduly restrictive) l½ fufonk esa nh xbZ njsa cktkj Hkko dh rqyuk esa mfpr gksa (Prices are reasonable in comparison of market values) ijUrq mDr iz;kstu gsrq ;fn ,d foRrh; vgZ fufonk izkIr gksrh gS rks og ,d izfrfdz;k (Single response) ekuh tk;sxhA** 12. Along with the affidavit dated 1st August, 2024 filed by Mr. Jaideep Arora, Managing Director, Uttarakhand Cooperative Dairy Federation Ltd., Mangal Parao, Haldwani, District Nainital on behalf of respondent Nos. 2 & 3, they have placed on record the previous e-tender notice dated 2nd May, 2023 as Annexure-SCA-3 collectively to clarify that the condition of work experience was mentioned earlier in the earlier tender notices itself. Hence, a perusal of these three notices shows that the condition of work experience was mentioned in the e-tender notice dated 2nd May, 2023 (Annexure SCA-3). Hence, this Court is of the view that even in the e-tender notice dated 2nd May, 2023, the condition regarding past work experience had been mentioned as per Rules 20(2)(Ka) and 20(16) of the Uttarakhand Procurement Rules, 2017 and, therefore, the tender has rightly been given in accordance with law. Specially, even in the previous tender notice dated 2nd May, 2023 (Annexure SCA-3), the condition of work experience is mentioned. 13. The instant writ petition stands dismissed.