RAKESH GUPTA Vs. AIRPORTS AUTHORITY OF INDIA

JUDGEMENT

(1.) Petitioner through the medium of instant petition has sought quashment of decision dtd. 6/12/2021, taken by respondents 1 to 3 whereby the petitioner has been technically disqualified in reference to Request for Proposal (RFP)"Tender E-Bid No.2021-AAI-82001-1 issued on 13/7/2021 for concession to design, fit-out, finance, develop, market, operate, maintain and manage the food and beverage outlets at Civil Airport, Jammu and Technical Bid of Respondent No.4 was accepted. He also sought quashment of decision contained in Minutes of LCAC meeting held on 7/12/2021 taken by the respondents 1 to 3 whereby while rejecting the technical bid of the petitioner, technical as well as financial bid of Respondent No.4 have been accepted notwithstanding the fact that the financial bid of the petitioner was much higher than the respondent No.4. The petitioner has also prayed for quashment of Letter of Intent No.AAI/ JU/Coml/1409/MCFB/3380 dtd. 12/12/2021 for concession to design, fit-out, finance, develop, Market, Operate, Maintain and Manage the food and Beverage outlets at Jammu Civil Airport whereby the aforesaid concession/contract has been awarded to Respondent No.4 and also prayed for a direction to the Respondents to declare the petitioner qualified for allotment of aforesaid contract by accepting the technical bid as well as financial bid of the petitioner being higher than the respondent no. 4 and being fully in consonance with the terms and conditions stipulated in the tender document i.e. tender Reference No.AAI /JU/Coml/1409/MCFB Tender E-bid No. 2021-AAI-82001-1.

(2.) The brief facts leading to filing of the present writ petition, as stated by the petitioner therein, are that respondent no.1 was constituted by an Act of Parliament and came into being on 1/4/1995 by merging erstwhile National Airports Authority and International Airports Authority of India and therefore, respondent no.1 being a statutory body/State within the meaning of Article 12 of the Constitution of India and amenable to writ jurisdiction; that respondent no.1 intended to grant concession of design, fit out, finance, develop, market, operate, maintain and manage the Food and Beverage outlets at the concessioned premises in the Civil Airport Jammu and in this behalf respondent no.1-Autohrity decided to carry out a competitive bidding process for selection of a bidder to whom the concession may be awarded and issued Request for Proposal (RFP) for aforesaid contract/concession under Tender Reference no.AAI/JU/ Coml/1409/ MCFB Tender E-Bid no.2021-AAI-82001-1 on 13/7/2021; that allotment of contract for the above concession was of two-tier system, viz. technical bid and financial bid, and to be eligible for being a selected bidder, a bidder was required to demonstrate both technical capacity and financial capacity and in this regard was to satisfy the criteria as shown in clause 2.1.4 of RFP. The petitioner claims that being fully eligible and qualified as per the terms and conditions of RFP (Annexure-II) he also applied for allotment of the contract/concession afore-stated in his favour as he duly fulfilled the technical eligibility criteria defined in clause 2.1.4 of RFP. It is stated that Petitioner is currently functioning as a Flight Kitchen Operator as is requirement of sub-clause B (iv) besides is having more than two years of experience in the Food and Beverage services business as on 13/7/2021, as is the requirement of sub-clause (A) and the Petitioner thus fully fulfilled the requirements of clause 2.1.4 (I) (A) and B (iv) of REP. It is also contended that Station Manager Air India Ltd. has issued Certificate dtd. 26/10/2021 certifying that the Petitioner is providing in-flight catering services since 1/2/2016 to 31/1/2018 and since 1/2/2018, the same agreement has been extended on the same terms and conditions which is valid till 9/2/2023. It is also contended that the petitioner is the proprietor of M/s Airport Restaurant at Civil Airport, Jammu for the last considerable span of time. He further contends that prior to allotment of contract/license in favour of the mother of the petitioner, namely, Smt. Savita Rani, the contract/license to run airport restaurant was allotted to the father of the petitioner, namely, Sh. Badri Nath. After the death of mother of the petitioner, the license agreement for running the airport restaurant at Civil Airport Jammu has been transferred in the name of the petitioner. It is also contended in the petition that the gross turnover of the Airport restaurant of the petitioner for the financial year 2018-19 was to the tune of Rs.1.33 Crore, for the financial year 2019-20 was Rs.1.96 Crore and for the financial year 2020-21 was to the tune of Rs.58.78 lac. The turnover/sales during 2020-21 was significantly dropped due to outbreak of COVID-19 pandemic and lockdowns imposed by the Government as a result of which the airports throughout the country remained completely shut down. It is pertinent to mention that since March 2020 to 14/1/2021 inflight catering has been closed as per the orders issued by the concerned departments of the Government of India. However, inflight catering was permitted for a short duration from 15/1/2021 till 14/4/2021 when again the same has been closed under the orders issued by the concerned departments of the Government of India. It is also contended that air traffic remained suspended w.e.f. 19/3/2020 till September 2020 and after resumption of air traffic/flights, the concerned catering agencies including the petitioner was permitted to supply packed water only in the flights. It is thus contended that due to this reason, the turnover/sales of the restaurant of the petitioner drastically took a deep dive. Hence, this petition on the grounds taken in it.

(3.) On notice, respondents have filed objections. Respondent Nos.1 to 3 contends that in meeting of LCAC for RFP for Concession to Design, Fit-out, Finance, Develop, Market, Operate, Maintain and Manage the F&B Outlets at Jammu Civil Airport was held on 7/12/2021. As per RFP para 2.1.5, the bidder must have minimum annual turnover Rupees One Crore only (for Jammu Airport) from F&B business during two (2) years (for which technical experience has been claimed) in the last seven (7) years. It is contended that as per the Profit and Loss account for the year ended 31/3/2021 of Petitioner, the turnover from relevant business is Rs.58,78,065.92, which is below the required turnover during the technical experience. Hence, it is contended that Petitioner was found ineligible in financial capacity of the tender. It is appropriate to reproduce Para 2.1.5 of RFP as under: