DIESEL PUMP ENGINEERS Vs. EASTERN COALFIELDS LTD.

JUDGEMENT

(1.) The petitioner seeks rejection of the bids of the respondent nos. 4 to 6 in respect of serial 25 of a tender process under the name and style of "15 Tonne SWL Cage Suspension Gear Set Complete in all respect Suitable for 46 mm dia winding rope" issued by Eastern Coalfields Ltd. (ECL).

(2.) Learned Advocate appearing on behalf of the petitioner submits that, the respondent nos. 4 to 6 did not satisfy the essential eligibility criteria as prescribed in the notice inviting tender. He submits that the respondent no. 4 was found not to be qualified on the ground of the initial portion of the eligibility criteria. The respondent nos. 4 to 6 are Medium Scale Enterprise (MSE). Therefore, the criteria should be made applicable across all MSEs participating in the tender process. In the present case, ECL distinguished between similarly situated persons and made one eligibility criteria of the tender process applicable for one MSE such as the respondent no. 4 while the ECL made another criteria applicable for the respondent no. 5 who is also an MSE. He draws the attention of the Court to the eligibility criteria. He submits that, the eligibility criteria can be divided into two portions. One portion for units who are not Start Ups/MSEs and the other portions for those who are Start Ups/MSEs. Even going by the logic as the ECL as exhibited in their affidavit "in "opposition, then also the second portion of the eligibility criteria relating to Starts Up and MSEs has not been fulfilled by the respondent no. 5. He submits that, three conditions laid down in the eligibility criteria relating to an MSE have not been fulfilled by the respondent no. 5. The Provenness Certificate relied upon by the respondent no. 5 shows that the machine failed the test. Therefore, respondent no. 5 cannot be considered as a technically qualified bidder for a price bid to be opened and considered. He submits that, the machines of the respondent no. 5 did not pass the test of field criteria for one year. Therefore, according to him, the action taken by ECL with regard to the respondent no. 5 is bad.

(3.) Learned Advocate appearing on behalf of the ECL submits that, the eligibility criteria prescribe two parts. One relates to the units, which are not Start Ups or MSEs. In the present case, the respondent no. 5 is an MSE. ECL considered the eligibility criteria and found the respondent no. 5 to be eligible. He submits that the conditions in (i) and (ii) of the eligibility criteria are not attracted for an MSE. By the same logic (iii) is not attracted also. Therefore, according to him, ECL is not acting arbitrarily in selecting the respondent no. 5. Moreover, he submits that, the action of the ECL cannot be termed as arbitrary. The tender conditions allow a preference to be given to an ancillary unit. The petitioner herein is an ancillary unit. He draws the attention of the Court to Clause 28 of the tender conditions. He submits that, the tender conditions and particularly Clause 28 require ECL to discover the price and after discovering of the price, once the lowest price is identified, the same is intimated to the ancillary unit, such as the petitioner herein, and such ancillary unit is offered to match such price. When the price obtained by ECL is matched by an ancillary unit, such as the petitioner, then the contract is awarded to the ancillary unit. Therefore, ECL will be offered the price quoted by the respondent no. 5 for the petitioner to match it. In the event, the petitioner matches the price, the contract will be awarded to the petitioner. Therefore, according to him, it cannot be said that ECL is acting arbitrarily in denying a reasonable opportunity to the petitioner in participation of the tender process.