TaxTMI 
TaxTMI 
2016 (4) TMI 223
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....ipal Secretary, Department of Public Works and the 2nd respondent is the Chief Engineer (Electrical), Public Works Department (PWD). 4. The 3rd respondent placed a bid in pursuance of this etender and was awarded the contract. 5. The 4th respondent has been impleaded as party respondent on the footing that the equipment which was supplied by it to the 3rd respondent is not genuine and in the past, suffered from quality issues. 6. The present petition concerns the tender and the description of work and other details in regard to this tender are to be found at page 55 of the paper book. To the extent relevant, that reads as under:- "GOVERNMENT OF MAHARASHTRA PUBLIC WORKS DEPARTMENT E TENDER NOTICE NO. 15/2015-16 Online percentage rate tenders in 'B-1' Form are invited by the South Mumbai Electrical Division, (P.W.D.), Mumbai for the following work from Contractors registered in appropriate class of the Public Works Department of Maharashtra State. The name of work, estimated cors, earnest money, security deposit, time limit for completion etc. are as under. E Tender No. Name of work Estimated Cost (Rupees) Earnest Money ....
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.... contents thereof. In the present case, the password protection given to respondent no. 3 violates mandate of Article 14 of the Constitution of India and the Central Vigilance Commission guidelines. 9. The second submission is that the PWD and particularly the Executive Engineer, in taking the decision, has compromised the terms and conditions of the tender. They have been relaxed in order to favour or benefit the 3rd respondent. Mr. Barve would submit that the name of work is "providing fully comprehensive maintenance and service contract for audio conference system at Assembly Hall, Council Hall and Central Hall at Navin Vidhan Bhavan". The earlier tender and which also resulted in a writ petition in this Court had crucial words, namely, "digital audio conference system with voting, camera control and language interpretation system" and which were to form part and parcel of the system to be installed at the Assembly Hall. Mr. Barve would submit that the Assembly Hall and Council Hall are the halls used when the assembly is in session and the Central Hall is used for other important events. In the session, there ought to be such comprehensive systems working and functional for ....
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....ese documents shows that respondent no. 3 is in business since 2009 but it was a partnership firm and it was only from 2013 that it is a private limited company. In support of that, the 3rd respondent has submitted the last three years' income-tax returns. In dealing with para 5(d) of the petition, the Executive Engineer states that the tender does not contain any requirement of experience of three years and hence it is denied that the experience of three years was mentioned in the earlier tender notice and the same has been deleted from the present tender notice. Mr. Barve submits that if the tender notice is the one at page 55 of the paper book, then the terms and conditions which are to be satisfied and the bidding documents which have to be submitted for envelope no. 1 specifically deal with experience. In any event, the wording of this condition would indicate that there is indeed a requirement of work experience and which is to be certified in the form of documents such as work orders and work completion certificates. For all these reasons, Mr. Barve submits the the impugned work order in favour of the 3rd respondent being contrary to the constitutional mandate, which is requ....
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.... or the quality. All this may be ascertained. 14. Mr. Chomal submits that the original equipments manufacturer M/s. Bosch has stopped supplying original equipments and the spares. However, the spares are openly traded and available in the market. They can be procured by parties like the 3rd respondent and supplied whenever required. In such circumstances, not much can be made of the conditions in the tender notice. Mr. Chomal, therefore, submits that bearing in mind the legal principles, this Court should not interfere in its writ jurisdiction with the decision of the State. Secondly only because another method could have been adopted and which is in this Court's opinion a better one, that will not enable this Court to interfere in writ jurisdiction. The process is fully transparent and is not vitiated by any unfairness, arbitrariness or malafides. 15. Reliance is placed by Mr. Chomal on the decision of the Hon'ble Supreme Court of India in the case of Michigan Rubber (India) Limited vs. State of Karnataka and Others(2012) 8 SCC 216 and another decision in the case of B. S. N. Joshi and Sons Ltd. vs. Nair Coal Services Ltd. and Ors. (2006) 11 SCC 548 He also relies up....
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....her. 20. Equally, in the light of clarification of Mr.Venegaonkar in respect of installation of inbuilt voting camera control and language interpretation system, we do not think that the authorities have changed the terms and conditions in order to favour a particular bidder. Therefore, the requirement is clear and the words "fully comprehensive audio video conference system" would mean that such system which is equipped with inbuilt facilities of the above nature have to be maintained and serviced. It is thus a maintenance and service contract of installed equipment at Council Hall and Central Hall of the Maharashtra State Assembly, where the assembly holds its periodical sessions, discussions, deliberations on policy and law, and thereafter passes resolutions and takes decisions. In the Council Hall, those elected by the public have a right to speak. They ought to be audible to the assembly and the Speaker of the house. Therefore, whatever be the make of the installations and whatever be the systems in place, their maintenance and service ought to be of high degree so that the system operates smoothly and without any disruption. It is for that reason that a public tender was f....
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....their inability to restore the functioning of the installed systems whenever there was any electrical defect and electrical faults. 23. Given the nature of the equipment to be installed at such crucial places, and going by the nature of work and the prior experience condition that is reproduced by us hereinabove, we cannot accept the stand taken in para 8 that the tender does not require any previous experience of three years, or the denial that a previous requirement experience of 3 years was mentioned in earlier tender notice but was deleted from the present tender notice. The requirement of experience is very much mentioned in that column of even the present tender. 24. We inquired from Mr. Venegaonkar as to how respondent no. 3 complies with this requirement and which is important and cannot be compromised at any cost. All that Mr. Venegaonkar would show to us is the contents of para 7 of the affidavit in reply of the State and some annexures thereto. If one looks at them, they would indicate as to how casually and lightly the matters are taken by the Department and particularly the Electrical Wing of the PWD. They are aware that they have to install such systems which ar....
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....to such details for the simple reason that this is not the first time that this petitioner has approached this Court. We had a writ petition before this Court by the very petitioner. The petitioner, in that petition, had assailed a similar exercise of the 2nd respondent. On that writ petition (being Writ Petition (L) No. 2786 of 2015), the Court called upon the parties to canvass detailed submissions. However, after some arguments, the State, in a somewhat identical situation, made a statement based on which that writ petition came to be disposed of. A copy of the order to that effect has been annexed to the present petition as Annexure 'B' at page 44 of the paper book. That order records that the 1st and the 2nd respondent would withdraw their tender dated 11th august, 2015 and the work order, which was issued by the 2nd respondent dated 24th September, 2015. The Court clarified that it would be open for these respondents to issue a fresh tender notice setting out specific and clear terms, particularly with regard to the nature of the work and the sourcing thereof, the eligibility of the contractors etc. and the tender process would then continue in accordance with law. Th....
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....ous Government contracts of the works similar to the nature of the present one and has been successfully maintaining the audio video conference system installed at the Cabinet Hall, Chief Minister Conference Room, Deputy Chief Minister Conference Room and the Chief Secretary Conference Room at Mantralaya. For the State to project this work as complete and as meeting the work experience requirement in the present tender and that too after taking a bold stand that such a criteria was not required to be fulfilled at all presents a misleading picture. The cabins of Chief Minister and Deputy Chief Minister are not comparable in size, dimension or requirement at all with the present work. Those are at best digital displays with accompanying sound systems and perhaps a video conferencing facility. We do not think that installation of C. C. T. V. and maintenance of computerized biometric system are works which would qualify as relevant or identical for the purpose of the present tender. 27. We reiterate that the work of providing fully comprehensive maintenance and service for audio conference system of Assembly Hall, Council Hall and Central Hall at Navin Vidhan Bhavan is the subject o....
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....reciation for the year Rs. 3,186/- and the net block is Rs. 12,414/-. Tangible assets are some mobile phones, computer and machinery and tools worth Rs. 3,24,986/- and its net value is Rs. 3,24,200/-. It is on the strength of this equipment and these financials that the 3rd respondent projects that it would be able to handle the subject contract awarded to it. The experience criteria which is stated to be satisfied as set out in the affidavit in reply of the 3rd respondent would indicate that the works claimed as successfully carried out of the monetary sum and set out in the affidavit does not form part of the statements which were furnished or maintained by the State Government. In addition to the Chief Minister's cabin, Deputy Chief Minister's cabin and Chief Secretary's cabin, this affidavit projects the successful maintenance of audio video conference system installed at the Cabinet Hall, Chief Minister Conference Room, Deputy Chief Minsiter Conference Room and the Chief Secretary Conference Room at Mantralaya. Annexure 'A' is the proof of the work completion certificate. The work completion certificate, copy of which is at Annexure 'A' would indica....