BALANGIR TRADING Vs. BHARAT SANCHAR NIGAM LIMITED

JUDGEMENT

(1.) BY an advertisement published in the Oriya daily newspaper in August, 2002, Bharat Sanchar Nigam Limited (for short, 'the B.S.N.L.) invited sealed tenders from reputed organizations having at least two years experience in the sale of fast moving consumer goods (F.M.C.G.) items, electrical goods, I.T. products, computer hardware for appointment of dealers (for post -paid service) on Telecom District basis and distributors (for Pre -paid service) on Telephone connection basis of B.S.N.L.s Cellular Mobile Service. In response to the said advertisement, sixteen organizations including the petitioner submitted tenders for Bolangir - Bhawanipatna territory. The tenders of fifteen organizations including that of the petitioner were rejected by the Tender Evaluation Committee nominated by the B.S.N.L. on the ground that they did not satisfy the eligibility conditions laid in the advertisement. The opposite party No. 3 was the only tenderer found to be eligible by the Tender Evaluation Committee but the rate of Rs. 150/ - for first activation and 8 per cent as recharge rate quoted by the opposite party No. 3 in its tender were not accepted and instead, after negotiation with the opposite party No. 3, the first activation charge at Rs. 95/ - and re -charge at 6.5 per cent were accepted and the opposite Party No. 3 was selected and appointed and the agreement has been executed in favour of the opposite party No. 3 Bolangir - Bhawanipatna Telephone District. Aggrieved, the petitioner has filed this writ petition under Article 226 of the Constitution with prayers to the Court to quash the entire tender process held for the Bolangir - Bhawanipatna territory and cancel the agreement/contract in favour of the opposite party No. 3 and to direct for fresh tenders in accordance with law.

(2.) THIS writ petition was heard along with W.P. (C) No. 2526 of 2003, and at the hearing Mr. Bijay Anand Mohanty, learned counsel, appearing for the petitioner, submitted that the advertisement by which tenders were invited stipulated that for the dealership/distributorship for Bolangir - Bhawanipatna territory, the tender must have a turnover of rupees twenty -five lakhs and the petitioner who had turnover of more than rupees twenty -five lakhs submitted tender and had furnished all documents in support of the said turnover the yet the authority rejected his tender with the observation that "T/o is not authentic". He submitted that if for some reason the authorities were of the view that the document in support of the turnover furnished by the petitioner along with his application was not authentic, the petitioner should have been afforded an opportunity to explain before the authority decided to reject tender of the petitioner. According to Mr. Mohanty , the conclusion of the authority that the turnover of the petitioner was not authentic was arbitrary and was liable to be quashed. Mr. Mohanty next submitted that in this case all the tenders except that of the opposite party No. 3 have been rejected by the Tender Evaluation Committee and the opposite party No. 3 has been selected by the Tender Evaluation Committee contrary to the selection criteria laid down in the advertisement. He submitted that as per the selection criteria in the advertisement inviting tenders, weightage was to be given in the following manner : Commission - 75 per cent Experience - 20 per cent Space (ground floor)/ Commercial location - 5 per cent Mr. Mohanty submitted that the Tender Evaluation Committee was obliged to award marks as per the aforesaid weightage and select the tender who secured highest marks, they have selected the opposite party No. 3 who had quoted one of the height commissions much higher than most other tenderers including the petitioner. The Selection of the opposite party No. 3 by the Tender Evaluation Committee, Mr. Mohanty argued, was thus arbitrary, illegal and contrary to the rules and the procedure as advertised by the B.S.N.L. Mr. Mohanty cited the decision of the Supreme Court in the case West Bengal State Electricity Board v. Patel Engineering Company Ltd., reported in (2001) 2 SCC 451 in which it has been held that adherence to instructions cannot be given a go -by branding it was a pendancic approach, otherwise it will encourage and provide scope for discrimination, arbitrariness and favouritism which are totally opposed to the rule of law and constitutional values. According to Mr. Mohanty, this is a clear case of favouritism shown by the Tender Evaluation Committee and the B.S.N.L. to the opposite party No. 3 in as much as all tenders except that of the opposite party No. 3 were rejected on flimsy grounds and the tender was finalised in favour of the opposite party No.3 contrary to the Selection criteria laid down in the advertisement of the B.S.N.L. inviting the tenders causing financial loss to the B.S.N.L. He argued that as the whole approach of the authorities has been unfair, unjust, inequitable and discriminatory, the High Court should set aside the entire tender process and direct the B.S.N.L. to invite fresh tenders within a time limit stipulated by the High Court in a manner which will ensure a healthy competition and better collection of revenue by the authorities.

(3.) MR . S. C. Lal, learned counsel appearing for the opposite party No. 3, while adopting the aforesaid arguments of Mr. Mohapatra contended that out of the sixteen tenders, fifteen were rejected by the Tender Evaluation Committee on the ground that they did not satisfy the eligibility conditions and the opposite party No. 3 was the only valid tenderer and even though the opposite party No. 3 had quoted Rs. 150/ - for first activation which was the maximum rate prescribed in the tender papers and 8 per cent towards recharge rate, the B.S.N.L. authorities further negotiated with the opposite party No.3 and of Rs. 95/ - as first activation charge and 6.5 per cent as recharge rate were finalized. Mr. Lal submitted that such negotiated rates which were finally agreed were less than the rates prescribed in the tender documents and there was absolutely no illegality committed in awarding the distributorship in favour of the opposite party No. 3 is already operating in the territory. Mr. Lal also relied on the judgment and order dated 11.2.2003 in W.P. (C) No. 5773 of 2002 by which the writ petition filed by another tenderer for Balangir -Bhawanipatna territory was dismissed. He vehemently argued that since the petitioner did not satisfy the eligibility criteria, he was eliminated at the threshold and this will be borne out from the official records maintained by the Tender Evaluation Committee and the counter -affidavit filed on behalf of opposite parties 1 and 2. Hence, the writ petition of the petitioner should be dismissed.