SATISH KUMAR SHARMA Vs. BHARAT HEAVY ELECTRICALS

JUDGEMENT

(1.) Rule. Returnable forthwith. Heard finally by consent of parties.

(2.) The petitioner are challenging the action of the respondent authority for not considering his technical bid pursuant to the Tender Enquiry Notice dated 10.6.2009. The Writ Petition No. 3985/2009 is in respect of notice inviting sealed tenders relating to T.S No.BHEL/PW/PUR/VNT/ MMS/654 from the bidders for the purpose of receipt of materials, unloading, verifying, shifting, staking, preservation and handing over of components of boiler and auxiliaries, electrostatic precipitator and its auxiliaries, electrical systems, controls and instrumentation of boiler and TG packers, HP and LP Piping, Refractory and Insulation, BHEL 's T & P and Components and Equipments of various other items and providing services for Material Management for 2 x 500 MW Super Thermal Power project Stage-IV Unit Nos. 11 and 12 at NTPC Vindhyachal, Distt. Sidhi Madhya Pradesh.

(3.) It is the case of the petitioner that the respondent floated a notice inviting the sealed tenders from the bidders for the purposes of carrying out the work referred to herein above and that the tender specifications with complete details was posted on the Web Site of the respondent. Accordingly, the petitioner down-loaded the same and decided to submit his offer. All the documents required for submitting the said tender form were obtained by the petitioner and as he fulfilled all the qualifications, requirements as mentioned in such notice and was eligible in every respect to participate in bid for the said job as individual, the petitioner was interested in submitting the said form. Along with the notice inviting tender, the petitioner also obtained the procedure, mode and manner of filing the technical bid, specifications under the said contract. The said tender form was to be submitted in two packets in separate sealed cover, describing as Part-I Technical Bid and Part-II Price Bid and indicating on each of the covers the tender & specification number, due date and time as mentioned in the tender notice. The two separate covers being Part-I and Part-II were to be enclosed in a 3rd envelop Cover-3 along with requisite earnest money deposit and those sealed covers were to be subscribed and submitted to the Additional Manager (Purchases), having its office at Bharat Heavy Electrical Limited, Power Sector, Western Region, 345, Kings Way, Nagpur. The petitioner on 23rd June, 2009, sought certain clarifications regarding the said notice inviting tender and by letter dated 2nd July, 2009, the queries posed by the petitioner were duly clarified by the respondent. The date for submitting the tender was extended to 6th July, 2009 and the technical-cum-commercial bid was intended to be opened on 7th July, 2009. The petitioner submitted his bid in the prescribed format with the appropriate authorities of the respondent strictly in terms of the technical bid, specifications and notice inviting tender, on 6th July, 2009, before 18.00 hours. As per the schedule, the technical bids were due to be opened on 7th July, 2009, and as such the petitioner 's authorized representative was present in the office of the respondent at the time of opening of the technical-cum-commercial bid, along with 7 other intending bidders. To the utter surprise of the petitioner 's representative, the envelop in Cover-3 containing petitioner 's technical-cum-commercial bid was not opened by the concerned officers of the Respondent. The said representative protested against the non-consideration of the technical-cum-commercial bid of the petitioner and was verbally informed by the said Officials that the said bid will not be opened due to unsatisfactory performance report for the earlier material management contract executed by the petitioner on 2 x 500 MV STP Project No. 2006-07. The petitioner disputed the said contention of the respondent and lodged a written complaint with the Executive Director complaining the arbitrary action on the part of the respondent, particularly the officials of the respondent, for not considering the technical-cum-commercial bid. As the petitioner did not receive any feedback from the respondent with regard to the steps in opening the technical-cumcommercial bid, a reminder was sent on 18th July, 2009 and a copy was also forwarded to the Chairman of the respondent. Despite of representations, no favourable response came forward from the respondent. Thereafter the petitioner learnt that part-two of the tender documents were to be opened, which meanst that the technical-cumcommercial bid of the petitioner would not be considered and accordingly, by letter dated 4th September, 2009, the petitioner again issued a reminder to the respondent requesting to look into the matter and to stop from further processing of the said tender till such issue was resolved. It is further the case of the petitioner that such action on the part of the respondent is mala fide as respondent cannot refuse to consider the technical-cum-commercial bid of the petitioner on any justifiable ground. It is further his contention that the decision making process adopted by the respondent under the said tender suffers from legal infirmity and that by refusing to open and consider the technical-cumcommercial bid of the petitioner, the respondent has acted in an unfair and discriminatory manner and such action on their part fails to satisfy the test of reasonableness and is unreasonable. It is further his contention that his right to compete with the other bidders has been violated and consequently he filed the petitions for a writ and/or direction to consider the technical-cum-commercial bid of the petitioner along with the other competitors and for the other reliefs as stated in the petitions.