EMDIGITAL LIMITED Vs. UOI AND ANOTHER

JUDGEMENT

(1.) The petitioner, a foreign company, is aggrieved by its ouster from the tender process, by the first respondent (the Union Government of India, hereafter "the Union") and the rejection of its bid, for procurement of 12.7 mm stabilized Remote Control Guns (hereafter referred to as "SRCGs") with ammunition and accessories and Transfer of Technology (hereinafter referred to as "ToT") to Ordnance Factory Board.

(2.) The necessary facts are that a Request for Proposal (hereinafter referred to as "RFP") in respect of procurement of 12.7 mm stabilized SRCGs with ammunition and accessories to Ordnance Factory Board (hereafter "OFB") was issued on 24.10.2013 to M/s. EMDigital, U.K, i.e., the Petitioner; M/s. Elbit Systems, Israel (the second respondent "Elbit") and five other vendors. Techno-Commercial bids were received from the Petitioner, Elbit and M/s. OTO Melara, Italy. Subsequently, the equipment fielded by the Petitioner and M/s. Elbit Systems, Israel cleared Field Evaluation trials conducted from 25.03.2015 to 12.05.2015 following which the Staff Evaluation was conducted on 09.07.2015. In this process, the Petitioner and Elbit were determined as compliant to the RFP procedures. Thereafter, commercial bids of both the vendors were taken up for consideration. Clause 3 of the RFP stipulated as follows:

(3.) Defense procurement involves multiple steps that include field evaluations, staff evaluations, oversight by a technical committee, commercial negotiation, approval of competent and financial authorities, after which the contract is awarded, entered into and later post-award management of the contract is undergone. In the present case, neither the petitioner, nor Elbit were original equipment manufacturers (OEP) but were system integrators. After the products were examined and tested, the commercial bids of the petitioner and Elbit (who were determined to be compliant with the tender conditions) were opened on 11.04.2016. It was discerned that the second respondent (Elbit) was the lowest bidder. In these circumstances on 15.04.2016, the petitioner addressed a representation/complaint to the authorities in the Union, stating that Elbit should be declared L1 or successful because its bid for the equipment lacked Congressional sanction from the country of origin of the product, i.e. the USA. The complaint inter alia, stated as follows: