ASHAPURA ENTERPRISE Vs. CENTRAL WAREHOUSING CORPORATION

JUDGEMENT

(1.) Rule. Learned counsel for the respondent, Mr.R.K.Mishra, waives service. The petition was taken up for final disposal by consent of learned counsel. The petitioner has approached this Court with the grievance that his technical bid pursuant to the tender notice dated 25.5.2010 has been rejected at the stage of evaluation of technical bids on the basis that the documents submitted by him did not prove minimum requisite experience during the last three years in the field of handling and transportation and the turnover of his firm for the year ending on 31st March 2007 was less than the minimum required under the conditions of tender. By filing an affidavit of the Regional Manager of the respondent, it is stated that the petitioner's turnover for the financial years 2006-07, 2007-08 and 2008-09 did not meet the requirement insofar as turnover in the first financial year 2006-07 was only Rs.82,000/- as against the requirement of Rs.10 Lacs. Secondly, the petitioner has submitted a certificate of Chartered Accountant for the year 2009-10 showing the turnover of Rs.347.25 Lacs, which is not an authentic document, as it has no value in the eye of law under the Income Tax Act. It is averred that, "law requires that turnover to be submitted to the Government of India, Department of Income Tax, of above Rs.10 Lacs by an audited report, which the petitioner had lacked. Therefore, on account of this paucity, coupled with the experience his technical bid was not accepted and he was communicated the reasons therefor in terms of the language that he is disqualified for being one of the bidders and/or one of the participants in the ensuing tender". It is further stated that, "duly audited balance sheet" means balance sheet that has been submitted to the Income Tax Department, and the petitioner did not fulfill that requirement, stipulated in the tender form. As for the alleged lack of experience of three years, it is averred that three years' experience means three calender years' experience, i.e. 36 months. It is contended that among the certificates annexed by the petitioner, experience for the year 2009-10 is for the period from 6.11.2009 to 31.3.2010 which comes to less than five months, and hence, he lacked three years clear experience as required.

(2.) There was no dispute about the fact that as per the notice inviting tender details of documents required in technical bid were prescribed, which, inter alia, required certificate of experience for preceding three financial years, duly audited balance sheet of preceding three financial years and duly audited P&L account of preceding three financial years. By adding an express note, it is specified that in all turnover of at least 5 lacs for the warehouse upto the capacity of 5,000 MT. and Rs.10 Lacs for the warehouse beyond 5,000 MT capacity every year during three previous financial years was required. Going by the date and language of tender notice dated 25.5.2010, it is absolutely clear that preceding three financial years would mean financial years 2007-08, 2008-09 and 2009-10. There is no requirement of the audited annual accounts being those which are submitted to the Income Tax Department and it was well nigh impossible to submit such annual account in May 2010 in respect of financial year 2009-10, which appears to have been made a ground for rejecting technical bid of the petitioner. As for experience of handling and transportation, the petitioner has submitted two certificates in respect of the years 2007-08, 2008-09 and for the period from 6.11.2009 to 31.3.2010. In all the three consecutive financial years or three years preceding the date of tender notice, the petitioner appears to be fulfilling criteria of handling more than 10,000 tonnes of goods, which was at one stage stated to be criteria, as well as requirement of having executed contracts of 50% of estimated value of present contract in each year. Even then it was sought to be argued that since last certificate of experience was in respect of the period only from 6.11.2009 to 31.3.2010, that experience could be counted as experience for only 5,000 MT and ought to be held to be a good ground for rejecting technical bid.

(3.) We are unable to agree with last submission of the respondent, in view of clear language of the tender notice, according to which, minimum three years experience in similar works within preceding five years "from the date of issue of NIT" was required and there was an independent requirement of furnishing duly audited annual accounts of preceding three financial years. Additional requirement of certificate of experience for preceding three financial years was obviously meant to see that the bidder has good financial worth and had been handling substantial quantity of goods in each financial year and that requirement appears to have been more than sufficiently satisfied by the petitioner.