TaxTMI 
TaxTMI 
2015 (1) TMI 113
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....mir. The respondents thereafter in February 2014 floated bid for National Family Health Survey - 4 (NFHS-4) for 32 territories (26 states and 6 Union Territories). The petitioner company submitted its bid for the territories of (i) Gujarat, Diu and Daman, Dadra Nagar Haveli and (ii) Jammu & Kashmir. On 25.03.2014, respondent no. 1 uploaded the names of the bidders who were found qualified for technical evaluation wherein the name of petitioner company was not mentioned. Therefore, a letter dated 25.03.2014 was addressed on behalf of the petitioner company to respondent no. 1 which was replied to by respondent no. 1 on 15.05.2014. 2.1 Thereafter, on 06.05.2014 bids for second round of NFHS-4 were invited which included Gujarat and Jammu & Kashmir as in the first round satisfactory bids were not received. The petitioner company once again submitted its offer/bid along with the bid documents for the territories of (i) Gujarat, Diu and Daman, Dadra Nagar Haveli and (ii) Jammu & Kashmir. On 09.06.2014, the eligibility criteria for qualifying for technical evaluation was opened before the NFHS-4 Committee for scrutiny in the presence of the bidders including the petitioner no. 2 when it....
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....or the sample HH size of the state applied for, whichever is lower) with at least one survey in demographic and health surveys. In case of PRCs, experience of large scale survey will not be mandatory. 1. Copy of the work order and certificate of completion. 2. Field survey experience in the format provided in appendix 'H'. 3.3 Mr. Sanjanwala submitted that as per the key changes in the revised bid document for FAs, it was stated that agencies having experience of at least one large scale survey with minimum sample size of 5000 households (Hhs) are eligible to apply. In case of those states where NFHS-4 sample size is below 5000 Hhs, the minimum survey experience can be equal to sample size of the State mentioned in the Bid Document. 3.4 Mr. Sanjanwala contended that as per the checklist of eligibility for opening technical bid, so far as Sl. No. 4 is concerned, for working experience of large scale demographic/health surveys with coverage of 5000 households (HHs) or the sample HH size of the state whichever is lower, a copy of work order and certificate of completion for the last 5 years was asked for and that in case of PRCs, experience of large scale survey will not be....
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.... offer of Respondent 4 was accepted. The Assistant General Manager (OP), Department of Telecommunications, Telecom District, Hyderabad, by his letter dated 3-8-1993, informed NHL that its offer could not be considered. The said letter did not indicate the reason for non-consideration of the offer of the NHL. The appellants filed a writ petition in the Delhi High Court under Articles 226 and 227 of the Constitution of India seeking a writ, order or direction in the nature of certiorari for quashing the award of contract by Respondent 3 to Respondent 4 for the printing, binding and supply of telephone directories for Hyderabad and also a writ, order or direction in the 485 nature of mandamus directing Respondent 3 to accept the tender offer of the appellants. In the counteraffidavit filed in reply to the said writ petition filed on behalf of Respondents 1 to 3 the reason for nonconsideration of the offer of NHL was disclosed. It was stated that the offer of NHL was not considered because the appellants did not submit any evidence to show that they have in their name undertaken compiling, printing and supply of telephone directories for large telephone systems with the capacity of mor....
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.... notice/document. In the counter- affidavit it was also stated that the royalty and other aspects of the tender were not considered since the appellants did not meet the primary requirement of experience as above. 19. At the outset, we may indicate that in the matter of entering into a contract, the State does not stand on the same footing as a private person who is free to enter into a contract with any person he likes. The State, in exercise of its various functions, is governed by the mandate of Article 14 of the Constitution which excludes arbitrariness in State action and requires the State to act fairly and reasonably. The action of the State in the matter of award of a contract has to satisfy this criterion. Moreover a contract would either involve expenditure from the State exchequer or augmentation of public revenue and consequently the discretion in the matter of selection of the person for award of the contract has to be exercised keeping in view the public interest involved in such selection. The decisions of this Court, therefore, insist that while dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granti....
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.... condition about eligibility for consideration of the tender, though we find no basis for the same, the said requirement regarding experience cannot be construed to mean that the said experience should be of the tenderer in his name only. It is possible to visualise a situation where a person having past experience has entered into a partnership and the tender has been submitted in the name of the partnership firm which may not have any past experience in its own name. That does not mean that the earlier experience of one of the partners of the firm cannot be taken into consideration. Similarly, a company incorporated under the Companies Act having past experience may undergo reorganisation as a result of merger or amalgamation with another company which may have no such past experience and the tender is submitted in the name of the reorganised company. It could not be the purport of the requirement about experience that the experience of the company which has merged into the reorganised company cannot be taken into consideration because the tender has not been submitted in its name and has been submitted in the name of the reorganised company which does not have experience in its ....
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.... advertisement dated 22-4-1993 when read with the notice for inviting tenders dated 26-4- 1993 does not preclude adoption of this course of action. If the Tender Evaluation Committee had adopted this approach and had examined the tender of NHL in this perspective it would have found that NHL, being a joint venture, has access to the benefit of the resources and strength of its parent/owning companies as well as to the experience in database management, sales and publishing of its parent group companies because after reorganisation of the Company in 1992 60% of the share capital of NHL is owned by Indian group of companies namely, TPI, LMI, WML, etc. and Mr Aroon Purie and 40% of the share capital is owned by IIPL a wholly-owned subsidiary of Singapore Telecom which was established in 1967 and is having long experience in publishing the Singapore telephone directory with yellow pages and other directories. Moreover in the tender it was specifically stated that IIPL will be providing its unique integrated directory management system along with the expertise of its managers and that the managers will be actively involved in the project both out of Singapore and resident in India." 3.....
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.... It was further observed that the bid submitted by the petitioner No. 1 was incomplete as the required documents or proofs for establishing the prequalification criteria more particularly, copies of the work order and certificate of completion to establish that the petitioner No. 1 had at least 5 years working experience on large scale household surveys as well as field survey experience which was to be provided in the format given in 'Appendix H', were not submitted at all. Thus, the conditions for providing the eligibility criteria to qualify for the technical evaluation were not satisfied and therefore, the petitioner no. 1 was not found to be eligible and qualified for technical Evaluation. I most emphatically submit that though the petitioner have produced a documents purported to be 'Appendix H' along with the rejoinder, no such 'Appendix H' at page No. 146 was ever submitted by the petitioners along with the bid documents. The petitioners in the petition itself, have stated that the document submitted by the petitioners were as per 'Annexure E' of the petition which are produced on page Nos. 18 to 114. It can be clearly seen from the same that no particulars as required in f....
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....iny, the petitioner no. 2 was very much present and he has appended his signatures at Sr. No. 3 (page 417 of the petition). He submitted that petitioner no. 2 by appending his signatures was fully aware that as the petitioner had not submitted the survey experience of at least five years with at least one large scale survey, the petitioner company was disqualified. 4.4 Mr. Trivedi fairly conceded that even it is assumed that the document is taken into consideration at pre-bid stage, the petitioner company lacks the total period of experience as is sought for. He submitted that the petitioner company has in all only 33 months of experience in the particular field and therefore also the petitioner company would have been disqualified. 5. Having heard learned counsels for both the sides and having gone through the documents on record in depth, it is clear that the survey experience which was required to be produced was for at least five years with at least one large scale survey. The petitioner company was not included in the list of qualified bidders as the petitioner did not meet with the eligibility criteria for qualifying for technical evaluation as laid down in clause 6 of the ....