NATWAR PARIKH INDUSTRIES LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition under Article 226 of the Constitution is directed against the order/decision of respondents 2 and 3 Central Warehousing Corporatio (CWC) awarding the contract of handling and transport of ISO Containers and allied services at Container Freight Station, Patparganj, Delhi, to the fourth respondent M/s. National Freight Carriers (NFC). Petitioner is an existing handling and transporting agent.

(2.) CWC invited offers on 5 December 1994 for tenders for handling and transport of ISO Containers and allied services at Contrainer Freight Station at Patparganj, Delhi. The tenderers were required to submit tenders in two separate sealed envelopes - (1) that containing the technical and professional qualifications; and (2) that containing item rates as per the schedule given in the tender documents. Both these covers were to be separately superscribed as 'technical qualifications' and 'rate quotations'. Tender superscribed 'technical qualifications' was only to be opened at the regional office of the CWC at 3.30 P.M. on 30 December 1994, and that containing 'rate quotations' was to be opened on 2 January 1995 at 3.30 P.M. Tender was to remain open for acceptance upto and inclusive of 15 March 1995. Six tenders had been received by 3 P.M. of 30 December 1994 while the tender of the fourth respondent was rececived at 4.30 P.M. and that of another firm M/s. Hill Son & Dilshaw Ltd. at 5.20 P.M. on the same day. The Regional Tender Committee of the second respondent and other officers of the region opened the technical bids at 3.30 P.M. of the six tenderers whose tenders had been received by 3 P.M. on 30 December 1994. The said Committee after technical evaluation found five tenders as technically qualified. The rate bids of these five technically qualified tenders and the two tenders who had been received late were forwarded to the head office of CWC for further necessary action as it is stated that under the delegation of financial powers in respect of the award of the contract in question, the powers of Regional Manager were only to an extent of Rs.15 lakhs and in view of the fact that the annual value of H&T contract exceeded Rs.1 crore the case fell within the exclusive competency of the Managing Director of the CWC. The envelope superscribed 'technical qualification' was to contain -

(3.) In a tender there could be two types of conditions, namely, essential and non-essential. Technical conditions only relate to the furnishing of the earnest money; existence of past experience; the financial status/credibility of the tenderer; its constitution; income-tax clearance ce certificate; annual gross turnover which should not be less than Rs.50 lakhs per annum; and the details of the equipments which the tenderer would be having to execute the contract. Mr. Lekhi, learned counsel for the fourth respondent, said that technical qualifications would be non- essential and there was nothing wrong if CWC decided to open the tender of the fourth respondent containing technical qualifications and then having found the fourth respondent to be technically qualified to consider the rates quoted by him with the other technically qualified tenderers. Nobody has questioned the technical expertness of the fourth respondent to execute the job. Mr. Jaitley said he should have been thrown out when the tender was received late and by which time bids containing technical qualifications had already been opened. We think in a case like this it is the rate which is essential part of the contract. When the High Power Tender Committee of the CWC interpreted the relevant clause in the tender documents to mean that it applied only with regard to rate tenders and not for technical bids, we find nothing irrational about it. We should not, however, be understood as laying down the proposition that in all cases and for all times to come that technical qualifications of a tender would always be non-essential or ancillary. Nobody knew the rates which the fourth respondent offered till all the bids containing rates of all the tenders had been opened. Mr. Jaitley, learned counsel for the petitioner, not only questioned the interpretation put by the High Power Tender Committee for treating the bids given by the fourth respondent as valid notwithstanding that it was received late after the expiry of the time and in contravention of the condition that tenders received late would be rejected, but said that nevertheless the negotiations could not have gone in with the fourth respondent only even if it was found to be the lowest tenderer. Mr. Jaitley said that some sort of secret parlays had gne in between the CWC and the fourth respondent and in this connection he referred to a fax message from the fourth respondent to CWC which is dated 19 January 1995 and reads as under :-