PSA ENNORE PTE LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioners in all these writ petitions question the act of the Ennore Port Limited in not shortlisting them for the next stage of bid that is RFQ stage and some challenging certain clauses in the tender forms.

(2.) THE short matrix of the matter as put forth by the petitioner in W.P.No.17460 of 2008, in its affidavit filed in support of the petition, in nutshell, is set out here under:-2.1. THE petitioner is one of the members of the consortium by the name of India Terminal Consortium (herein after referred as the Consortium). THE petitioner consortium members are reputed logistics service providers including International Port Operators. THE Consortium members are (i) Terminal Investments Limited, (ii) Samsung C & T Corporation, (iii) Container Corporation of India, (iv) THE Shipping Corporation of India, (v) Central Warehousing Corporation and (vi) Hind Terminals Private Limited.2. 2. On 07.03.2008, the first respondent floated Request for Qualification (RFQ) for development of Container Terminal at Ennore Port, on Build, Operate and Transfer basis (herein after referred as BOT), in order to shortlist competent applicants subject to national security clearance, who may be subsequently invited to bid for the project. THE said RFQ document contains instructions to applicants and criteria for evaluation and project profile was available from the registered office of the first respondent upon submission of a demand draft in favour of the first respondent towards the cost of Request for Qualification document. THE petitioner had paid the sum required by way of demand draft and after carefully gone through the RFQ document, had raised certain queries regarding certain terms and conditions of the said document and submitted written queries to the first respondent. THE first respondent by its communication dated 04.04.2008 forwarded the amendments to the petitioner to the Request for Qualification document. THE first respondent by proceedings dated 04.04.2008, had clarified the petitioner's queries during the pre-application conference held on 29.03.2008. Since the petitioner fulfils all the requirements, had submitted its application dated 19.05.2008 for pre-qualification for development of container terminal at Ennore Port on BOT basis on 20th May, 2008.2.

(3.) IN W.P.No.17460 of 2008, a counter affidavit had been filed by the first respondent (EPL), setting out the following facts:(i) the rejection of the petitioner was on account of non submission of documents as laid down in the RFQ document. The following defects made the respondents not to shortlist the petitioner:(a) The Power of Attorney furnished by Contained Corporation of INdia and Central Warehousing Corporation who are members of the Consortium have not been executed in accordance with procedure laid down by applicable law and the chartered documents of the executants nor under their common seal.(b) IN the responsiveness test, Terminal INvestment Ltd and Container Corporation of INdia, as a member of the Consortium claiming experience under Category 1 has not submitted the required Statutory Auditor's Certificate and the details of the project as per Appendix I, Annex IV respectively and hence evaluation could not be done.(c) Likewise, Samsung C & T Corporation, who is another member of the Consortium and is claiming experience from Category (3) projects has not furnished the Statutory Auditor's Certificate as stipulated. Only one Auditor Certificate for its all the 250 projects (Category 3 and Category 4) is given. The requirements as per the RFQ document as stipulated in Appendix I, Annex IV, is that the Applicant should provide a certificate from the Statutory Auditors/Clients in the format for each project to verify various facts related to a project like project cost, period of project, share of the applicant, etc and in the absence of such certificate, the claim of technical score by Samsung C&T Corporation was discarded.(d) As per Clause 2.13.2(v) of the RFQ document, the application submitted by a consortium should contain a copy of the Memorandum and Articles of Association if the applicant/consortium member is a body corporate. Terminal INvestment Ltd., being a Corporate body, has not enclosed such a copy.(e) As per Clause 2.13.2 (vi) of the RFQ document, the copies of applicant's / each consortium member's duly audited balance sheet and profit and loss account for the preceding five years is to be provided. IN respect of Terminal INvestment Ltd., no such document has been provided(ii) the petitioner's contention that the Power of Attorney given by Container Corporation of INdia was given by the person who himself is a Gazetted Officer is not correct as the Power of Attorney was supposed to be accompanied with the supporting documents as mentioned in Appendix III(iii) the respondent was under no obligation to inform the petitioner the ground for its disqualification as per Clause 2.17.4 of the RFQ document. The pre-qualification of applicant would be entirely at the discretion of the respondents. The applicants will be deemed to have understood and agreed that no explanation or justification on any aspect of the bidding process or selection would be given. The petitioner, who was fully aware of the provisions of this Clause and had accepted it before submitting the application, cannot question the provisions of RFQ document at a later date and(iv) the respondent had taken 37 days to complete the evaluation work which is very reasonable under any yardstick. The entire process has been carried out with utmost transparency and reasonableness by the respondent.The other contentions raised in the counter affidavit are similar to the one made in W.P.No.17744 of 2008.9.