BABA PEER STONE CRUSHER Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has filed the present writ petition challenging Clause 10.1(a) providing for eligibility criteria for participation in the tendering process for supply of 1,10,000 cum. 65 mm gauge stone ballast.

(2.) Mr. M. K. Bhardwaj, learned senior counsel appearing for the petitioner submitted that the tender notice was uploaded on the website of the Northern Railways on 15.06.2019 inviting offers for manufacturing and supply of 1,10,000 cum 65 mm gauge stone ballast (mechanically broken) duly stacked and loading into Railway Wagons/Hoppers in quarry siding in Sub Depot-I and II at Kathua under ADEN-II/PTK. The bidding was to start from 17.07.2019. The closing date for tender was 31.07.2019. The petitioner is an experienced contractor and supplier who is already working with the railways satisfactorily with no default whatsoever. The tender was to be submitted in two parts, i.e. the technical bid and the financial bid. After the petitioner qualified the technical bid, the financial bids were opened and the petitioner was found to be L-1. Despite the petitioner being L-1 when the letter of acceptance was not issued in favour of the petitioner, he approached this Court.

(3.) The argument is that the petitioner had already qualified the technical bid and was found to be L-1 when financial bids were opened. There was no question of re-evaluation of the technical aspects to debar the petitioner from allotment of tender. The basic concept for submission of bids in two parts, i.e. technical bid and financial bid is that after a tender qualifies the technical bid, only then financial bids are opened. The petitioner fulfils all the conditions. He had even submitted a certificate which clearly provided that that petitioner was fully eligible as he had completed the work of the requisite amount with the railways up to 10.07.2019. But still the petitioner is not being allotted the work only because of Clause 10.1(a) of the General Conditions. The same has no nexus with the objects sought to be achieved. The conditions imposed are quite harsh. Further the last date of submission of tender was 31.07.2019 and before that in any case the petitioner fulfilled all the conditions. It is evident from the certificate attached by the petitioner. Once there is substantial compliance of the conditions as laid down in the notice inviting tenders, merely because a small fraction thereof is lacking, the petitioner cannot be ousted from the zone of consideration specially when he had quoted rates far less than L-2, who was a new entrant as far as the execution of work in the State of Jammu and Kashmir is concerned. After the petitioner had qualified the technical bid, he had legitimate expectation of allotment of the work to him. His that right is being defeated. The only object for which Clause 10 has been added in the eligibility condition is that unscrupulous persons should not participate in the tendering process. Admittedly, the petitioner has an outstanding record. In support of his arguments, reliance was placed on the judgments of Hon'ble the Supreme Court in M/s B. S. N. Joshi and Sons Limited v Nair Coal Services Limited and others, AIR 2007 SC 437 and Rashmi Metaliks Limited and another v Kolkata Metropolitan Development Authority and others, (2013) 10 SCC 95.