LANDIS GYR LIMITED Vs. GENERAL MANAGER ELE PROCUREMENT

JUDGEMENT

(1.) In this case, the Petitioner has questioned the validity of the decision/resolution passed by the Board of Directors of the BESCOM in its meeting held on 28.8.2010 in subject No. 43/2006 in so far as it relates to award of the contract against enquiry No. BCP-396/2008-09 (Tender Notification - Annexure 'A') dated 1.4.2009 pertaining to Single Phase 5-30 Amps Class 1 Static energy meter in favour of the third Respondent and for quashing the order passed by the 4th Respondent dated 27.10.2010 (Annexure 'R') in appeal No. EN. 198 EEB. 20140 The Petitioner has further sought for a mandamus or such other appropriate writ or order directing the first Respondent not to accept the bid/tender submitted by the third Respondent in pursuance of the tender notification at Annexure 'A' and to consider the bid of the Petitioner and other bidders, who have qualified in the techno commercial bid and in the price bid in accordance with law.

(2.) The Petitioner has been carrying on the business of manufacture and sale of Energy Meters. The first Respondent floated tender bearing No. BESCOM/GME(P)/BCP-396/2008-09 dated 1.4.2009 inviting sealed bids from eligible bidders for sale of LT Single phase 5-30 Amps static energy meters, (ii) LT Three phase whole current 5-30 Amps Static energy meters and (iii) LT three phase CT operated ETV meters confirming to technical specifications stipulated in the tender in retail outlets of BESCOM for a period of two years. The Petitioner submitted its sealed tender in pursuance of the said tender invitation through E Tender Platform. The Petitioner also submitted three sample meters confirming to the prescribed specifications duly sealed along with the routine test certificates. Similarly, the third Respondent, who had also participated in the tender, had submitted three sample meters. From amongst the tenderers, who had submitted the sealed bids, BESCOM evaluated the technical bids submitted and collected the random samples (3 meters) for each type from factory premises as per the relevant clause in the tender. After verification of the qualifying requirements, BESCOM selected four bidders in LT Single Phase 5-30 Amps Static Energy Meter type and submitted the random samples (3 Nos. each type) collected to CPRI, Bangalore, for all type and other tests covered under specification. During the testing at CPRI. Bangalore, the samples of the third Respondent failed to meet the specification, whereas the other three bidders' samples passed including that of the Petitioner. It is contended that a letter dated 10.12.2009 has been written by the first Respondent to the third Respondent confirming that CPRI vide its letter dated 4.12.2009 referred to therein had informed the first Respondent that the sample single phase meters supplied by the third Respondent did not comply with requirements of the standards. It is further contended that in the said letter dated 10.12.2009, the first Respondent by ex-post facto illegal incorporation of Clause 12.2.1 of IS 13779:1999 sought for three more samples for being tested at random from the third Respondent. The first Respondent allowed the re-submission of fresh set of samples by the third Respondent based on the said clause.

(3.) It is the case of the Petitioner that having come to know of the same, the Petitioner addressed a letter dated 20.1.2010 as per Annexure B' to the 2nd Respondent informing that the 3rd Respondent's bid shall have to be rejected, as the samples so submitted by the third Respondent had tailed and requesting the second Respondent to intervene in the matter and not to allow the first Respondent to consider the price bid of the third Respondent, as it would be grossly unfair and unjust to the other genuine qualified bidders like the Petitioner. It is further contended that the third Respondent had never supplied products of good quality and that there has been gross defects in the meters of the third Respondent as supplied to the other Electricity Boards. The Gujarat Electricity Board (presently called Gujarat Urja Vikas Nigam Ltd.) has blacklisted the third Respondent and has stopped dealing with it for three years as per the circular at Annexure 'C dated 22.8.2006. It is further contended that in the daily leading newspaper of Andhra Pradesh, namely, 'Vartha' dated 18.2.2008, a news report has been published of cheap/junk meters having been supplied by the third Respondent to Andhra Pradesh Distribution Companies and criticizing the 'AP Discom' for having not purchased the meters from good companies like the Petitioner, who have earlier submitted meters of good quality. The first Respondent having special interest in the matter has illegally called upon the third Respondent to again supply samples for further testing by misquoting Clause No. 12.2.1 of IS 13779:1999 without any authority and in gross violation of the tender conditions. Therefore, Petitioner gave further representation dated 28.6.2010 to the first Respondent in this regard (Annexure 'F') informing him that the tender bid of the third Respondent requires to be rejected and that the samples cannot be called for from the third Respondent for the second time much less subjected to any second test even assuming and without considering that the samples so supplied by the third Respondent was found to be satisfactory in respect of the second sample test. Despite the said representation, the first Respondent has illegally opened the price bid of the third Respondent. It is further contended that the bid of the third Respondent was also liable to be rejected as it is not registered under the Karnataka Sales Tax Act, which information is specifically sought for in the tender document at Annexure 'V in Vol.11 Section I i.e. Techno Commercial Sheets. That apart, the third Respondent has, in its price bid offered a wrong rate of tax under the VAT. This aspect was also duly emphasised by the Petitioner in its letter dated 28.6.2010 addressed to the first Respondent requesting to reject the bid of the third Respondent. However, the first Respondent in its letter dated 3.7.2010 has again referred to Clause 12.2.1 of IS 13779:1999 and also IS 14697 with a new version to substantiate his illegal action calling for the second test of sample meters. Though the third Respondent is not legally qualified in having not satisfied the techno-commercial specification and having not submitted a "techno commercial responsive bid", its price bid was opened. In terms of the price bid, the third Respondent's name is found at L-l. His price bid being opened, he is considered as one of the lowest tenderers, who is said to have submitted a valid tender.