UFLEX LIMITED Vs. STATE OF SIKKIM

JUDGEMENT

(1.) IN this Writ Petition the Petitioner seeks to assail the tender process in respect of supply of security holograms to the Excise (Abkari) Department, Government of Sikkim in which the bid of the Respondent No.3 had been accepted resulting in issuance of letter No.387(7)Ex/Abk dated 07 -08 -2013 informing all distilleries in the State that they were to procure their requirements of security holograms from the said Respondent.

(2.) (i). The Petitioner is a registered Company under the Companies Act, 1956, having its registered Office at 305, 3rd Floor, Bhanot Corner, Pamposh Enclave, GK - I, New Delhi, with its manufacturing unit established at Noida, UP. The Petitioner produces high security holograms and is engaged in the business of sale of security holograms, holographic films, etc., and supply such materials to various State Governments including Uttar Pradesh, Meghalaya, Rajasthan and Sikkim. It is stated that in order to ensure that the Government did not suffer revenue loss by sale of duplicate alcoholic produce, the Respondent No.1 decided to affix security holograms on bottles and cans containing alcoholic liquor and for the first time floated Notice Inviting Tender (in short the "NIT") in the year 2010 in which the Petitioner having successfully bidded was awarded with the work for supply of the security holograms for the full term of three years except for certain impediment that was faced by the Petitioner at the initial stage of the supply which also involved a round of litigation before this Court in WP(C) No.33 of 2011. The period of contract was successfully completed by the Petitioner.

(3.) THE principle ground of objections raised on behalf of these Respondents in their counter -affidavits is that the Petitioner did not possess the requisite eligibility criteria stipulated for the technical bid. It is stated on behalf of the State -Respondents that in response to the NIT six Companies had bidded including the Petitioner and on 17 -06 -2013 when the technical bids were opened, representatives of all the bidding Companies were present before the Tender Committee. After that the bids were signed by the Members of the Tender Committee and the representatives of all the tenderers. The representatives were informed that only those bidders who satisfied the terms and conditions of the technical bids would be informed about their being qualified for the financial bid and that the premises of only the successful bidders would be inspected for verification as per Clause 19 of the NIT. That on the scrutiny of the technical bid submitted by the Petitioner -Company it was found that it did not fulfil the criteria stipulated under Clause 14 of the NIT. This fact was apparent from the very documents submitted by the Petitioner along with the technical bid. Of the six bids received in response to the NIT, only that of the Respondent No.3, namely, M/s. Holoflex Limited, was found valid as it fulfilled all the terms and conditions of the NIT and, therefore, qualified for the next round of the the financial bid. Although Clause 9.6 of of the General Conditions of Contract provided in the Sikkim Public Works Manual, 1999, prescribed that at least three valid participants or tenderers in each tender was required to be considered but that very Clause also vests the Head of the Department with the discretion to accept or reject the tenders in the event of there being less than three tenderers. The Tender Committee forwarded the case of the Respondent No.3 under this Clause with recommendations for its acceptance and the Government after due consideration accepted the recommendation and awarded the work to the said Respondent. As per the State -Respondents the tender process was fair, reasonable and transparent and that the technical bid of the Petitioner was rejected as a natural course for failing to meet the eligibility criteria prescribed under the NIT.