NAARAAYANI SONS PVT. LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) A participant in a e-tender process is before Court claiming that, the respondent no. 4 was ineligible to participate in the subject tender process. The respondent no. 2 acted arbitrarily in allowing the respondent no. 4 to participate in the e-tender process and acted arbitrarily in declaring the respondent no. 4 as the successful tenderer.

(2.) Learned senior advocate for the petitioner submits that, the first petitioner participated in a tender for composite manual and mechanised mining work and transportation of approved grade Iron Ore Lump and Fines at Kalta Iron Mine, Transportation of the same to Steel Authority of India Limited (SAIL) Railway Siding at Roxy, loading into wagons and removal of face rejects to be executed at Kalta Iron Mine as mentioned in the scope of work as special conditions of contract. He draws the attention of the Court to the special conditions of contract and particularly the eligibility criteria prescribed therein. Referring to Clause 6.3 of the eligibility criteria, learned senior advocate for the petitioner submits that, a participant to be eligible must have requisite work order/agreement, job completion/experience certificate issued by the employer for the relevant job and relevant period amongst other criteria to be fulfilled. He refers to the general conditions of contract of the respondent no. 2 and submits that, the employer is defined therein. According to him, Clause 9.1 of the general conditions of contract defines an employer to mean the person who is undertaking the tender process. He submits that, the respondent no. 4 herein is a sub-contractor of a contractor in respect of a contract entered into between the respondent nos. 5 and 3. The respondent no. 5 is the employer. The respondent no. 3 is the contractor. The respondent no. 4 is at best the sub-contractor. He refers to the agreement dated September 13, 2017 entered into between the respondent nos. 5 and 3 and submits that, there is an embargo on the respondent no. 3 in granting any sub-contract without the permission of the respondent No. 5. The permission of the respondent, if there be any, is not on record.

(3.) Learned senior advocate for the petitioner refers to a certificate issued by the respondent no. 3 in favour of the respondent no. 4 and submits that, the same cannot be construed to be a sufficient document to establish the eligibility of the respondent no. 4 in terms of Clause 6.3 of the special conditions of contract. The certificate of the respondent no. 3 cannot be that of an employer within the meaning of Clause 6.3. He refers to the agreement entered into between the respondent nos. 3 and 4 and submits that, such agreement does not allude to the fact that, the respondent no. 5 granted permission to the respondent no. 3 to engage the respondent no. 4 as the sub-contractor. Therefore, the certificate issued by the respondent no. 3, which the respondent no. 4 relies upon as a document in support of the eligibility criteria, is of no value.