BHARAT HEAVY ELECTRICALS LTD. Vs. OIL INDIA LTD.

JUDGEMENT

(1.) Heard Mr. K.N. Choudhury, learned senior counsel, assisted by Mr. S.K. Raheja, learned counsel for the petitioner. Also heard Mr. P.C. Sen, learned senior counsel, assisted by Mr. K. Kalita, learned counsel for respondent no. 1 and Dr. A. Saraf, learned senior counsel, assisted by Mr. P. Baruah, learned counsel for the respondent nos. 2 and 3.

(2.) In brief, and bereft of detailed particulars, the case of the petitioner i.e. Bharat Heavy Electricals Ltd. is that the respondent no. 1 had invited International Competitive Bids bearing Tender No. SDG8439P22/09 for procuring 5 (five) nos. of 2000 HP VFD Drilling Rigs with Top-Drive and accessories. The petitioner had participated in the said bidding process. In due course of tender evaluation, the bid submitted by the respondent no. 2, i.e. Megha Engineering and Infrastructures Ltd. was accepted and consequently, the Letter of Acceptance (LOA for short) was issued on 28/6/2022 in favour of the respondent no. 2. It is projected that the tender was awarded to the respondent no. 2 by giving a total disregard to the 'Guidelines on debarment of firms from bidding dtd. 2/11/2021', issued by the Department of Expenditure, Ministry of Finance, which according to the petitioner, applies to the respondents as the respondent no. 3 firm was debarred for a period of 3 (three) years w.e.f. 9/11/2021, which was subsequently reduced to 1 (one) year, i.e. upto 8/11/2022. It is projected that a complaint was made to the officials of the respondent no. 1, to the Chief Vigilance Officer and the Independent External Monitors (IEMs) against the illegal, improper arbitrary and discriminatory evaluation of the bid submitted by the respondent no. 2, which was in contravention of the said debarment guidelines, but no action was taken. It is also projected that although after several requests, the IEM took up the hearing on the matter, but till the date of filing of the writ petition, the final report of the IEMs, if any, has not been made available to the petitioner. Later on, interim report dtd. 29/6/2022 was released by the IEMs. However, on 30/6/2022, the petitioner was informed by e-mail that on 28/6/2022, LoA, i.e. Letter of Acceptance was issued to the respondent no. 2. Accordingly, by filing this writ petition under Article 226 of the Constitution of India, the petitioner has, inter alia, prayed for setting aside the letter of award dtd. 28/6/2022.

(3.) The learned senior counsel for petitioner has meticulously referred to the pleadings and voluminous documents on record. It was submitted that the respondent no. 2, i.e. Megha Engineering and Infrastructures Ltd. (hereinafter referred to as ME&IL for short) was the holding company of respondent no. 3, i.e. Drillmec S.P.A., Italy. On 9/11/2021, the competent authority of respondent no. 1, i.e. Oil India Ltd. had passed an order to debar the respondent no. 3 from entering into any contract and doing any business with the respondent no. 1 for a period of 3 (three) years, which was effective till 8/11/2024. However, vide order dtd. 21/2/2022, the appellate authority of the respondent no. 1 had reduced the period of debarment to 1 (one) year, thus, making the debarment effective till 8/11/2022. It was submitted that the information regarding the debarment of respondent no. 3 was uploaded in public domain in the Central Public Procurement Portal. It was submitted that as per the relevant clauses tender document as well as debarment guidelines, the respondent no. 3 is an 'allied firm' of the respondent no. 2. The respondent no. 1 had opened the techno-commercial bid on 15/12/2021. The petitioner had submitted its representation dtd. 25/2/2022 to the Director (Operations) of respondent no. 1 and informed the said authority about the reasons why as per the 'bid rejection criteria' and 'bid evaluation criteria', the respondent no. 2 did not qualify to bid in the tender process by taking help of the experience and credentials of respondent no. 3, its subsidiary. It is submitted that despite complaint letters having been issued to the officials of the respondent no.1, IEMs and the Chief Vigilance Officer of respondent no. 1, and despite pendency of proceeding before the IEMs, the respondent no.1 had hurriedly issued LoA in favour of the respondent no. 2 on 28/6/2022.