S K RAI Vs. UNION OF INDIA

JUDGEMENT

(1.) By the present application made under Article 226 of the Constitution of India, the petitioners have approached this Court with prayer, interalia, to issue appropriate writ/writs setting aside the allotment order/ order of acceptance of tender, in question, issued by the respondent No. 5 in favour of the respondent No. 6 and directing the official respondents to award the said contract to the petitioner.

(2.) In a short compass, petitioners' case may be put as follows : The petitioner No. 1 is a reputed carriage contractor registered under the Partnership Act with petitioner No. 2 as its managing partner. The petitioner No. 1 is also a registered carriage contractor under different government departments including Telecom Department. The respondent No. 2, namely, Bharat Sanchar Nigam Limited in short BSNL), functions under the control and supervision of respondent No. 1, namely, Union of India. The respondent No. 6 is a limited company incorporating under the Companies Act. On 21.9.2001, the official respondents invited tender, am behalf of the Chief General Manager, BSNL, for handling the transportation of telecom stores by motor vehicles for North-East Telecom Circle, for a period of one year vide Tender notice No. Eng/S- 249/NIT/2001-2002/31 dated 21.9.2001 (Annexure II to the writ petition), the last date for receipt of the tender and for opening of the same having been fixed on 19.10.2001. After duly fulfilling all the terms and conditions of the Notice Inviting Tender (in short, NIT), the petitioners submitted their tender along with all relevant documents and earnest money of Rs. 2,45,000/- in the shape of Bank Draft. On 20.10.2001, the tenders were opened in the office of the respondent No. 2 in presence of the tenderers and it was discovered that only the petitioner No. 1 and respondent No. 6 had participated in the tender process. The rates quoted by the private respondent No. 6 were found to be lower than the rates quoted by this petitioners. On the date of opening of the tender, it was found that the respondent No. 6 had not fulfilled the eligibility criteria mentioned in clauses Nos. 6.7 and 7.5 of the NIT inasmuch as this respondent had not produced, contrary to the requirements of clause 6.7, any document to show ownership of requisite number and types of vehicles to show that they are capable of handling the transportation work nor had the respondent No. 6 produced any certificate in proof of their having handled similar nature of work in the past with BSNL as was required by clause No. 7.5. Moreover, the Income Tax Clearance Certificate was also not produced by the said respondent. This apart, the respondent No. 6 is basically a finance company and is not engaged in the business of transportation of goods. The petitioners, therefore, raised objection before the authorities concerned against considering respondent No. 6 for allotment of work. On 23.10.2001, the petitioners submitted representations, in this regard, to the respondents through fax and reiterated their stand that the respondent No. 6 had not fulfilled the terms and conditions of the tender and though the rates quoted by respondent No. 6 were lower, the said rates were not workable. In fact, the rates quoted by the petitioners were found to be lower than the approved rate of the last preceding two years by 22%. On 20.11.2001 and 27.11.2001, the respondent No. 4 directed the petitioners to produce some documents, in original, before the Tender Evaluation Committee for verification of the same vide letters dated 20.11.2001 and 27.11.2001 (Annexure-VII and VIII respectively) and accordingly, the petitioners produced the required documents, in original, before the said Committee. However, the respondent Nos. 1 to 5 arbitrarily, unreasonably, with ulterior motives and in accordance with their secret understanding with the respondent No. 6, on 31.12.2001, accepted the tender of respondent No. 6. The official respondents, accordingly, entered into an agreement with the respondent No. 6, on 15.01.2002, making the said agreement effective from 16.01.2002.

(3.) The respondent Nos. 1 to 5 have contested this case by filing their affidavit in-opposition, their case being, briefly stated, thus : The Tender Committe opened the tender, on 22.10.2001, instead of 19.10.2001, because a bandh was called by the Students' Union in Shillong and the opening of the tender had to be shifted to the next working day. As per the decision reached by the Tender Evaluation Committee (in short TEC), in its first sitting held, on 19.11.2001, the respondent No. 4 issued a letter, dated 20.11.2001, to the petitioners as well as respondent No. 6 asking them to produce some original documents for verification of genuineness of their claims. The respondent No. 4, again, issued, on 27.11.2001, another letter to the petitioners asking them to submit additional documents as the TEC was not satisfied with the documents submitted earlier by the petitioners. After thiis exercise, both the respondent No. 6 as well as the petitioners were found to have fulfilled mandatory conditions of tender documents and both of them were, therefore, considered eligible for evaluation. Since the rate quoted by private respondent was 2.60 per unit as against Rs. 3.195 per unit quoted by the petitioners, the offer of respondent No. 6 was approved and, accordingly, a contract agreement has been entered into between the parties, on 15.01.2002, awarding the contract to the respondent No. 6 with effect from 16.01.2002. The requirement of previous experience of working with BSNL was not a mandatory condition, it was, rather, a general condition and though the respondent No.6 had not worked with BSNL, they had the experience of working with Steel Authority of India Ltd., which is, same as BSNL, a Government of India undertaking. The private respondent had furnished, in terms of the mandatory requirements of Clause 7.5 of the NIT, necessary documentary proof of ownership of requisite number of vehicles at the time of opening of the tender, but as the TEC wanted to verify the ownership certificate of one of the vehicles bearing registration No. AS-01E-7675, the respondent No. 6 was directed to produce the original documents thereof and upon production of the requisite documents by respondent No.6, the same were found to be in order. The acceptance of the tender and awarding of the contract to the respondent No. 6 by the respondents No. 1 to 5 were perfectly in conformity with the tender documents and in accordance with law. In fact, the petitioners were the ones, who had tried to influence the recommendations of the TEC and decision of the authority concerned by putting political pressure on them through the President, Bharatiya Janata Party (BJP) state unit, Arunachal Pradesh, whose letter is placed as Annexure-(R)7.