TaxTMI 
TaxTMI 
2020 (3) TMI 291
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....A Government of Tamil Nadu undertaking), to reject the bid of the 4th respondent namely, M/s.Krystal Integrated Services Pvt. Ltd., Mumbai, and consequently award the contract in Tender No.432/outsourcing/DME/TNMSC/Engg/2019 dated 19.02.2019 to the petitioner for all the zones namely, zones 1 to 5. W.P.No.27267 of 2019: 2. Writ Petition filed in the nature of Mandamus, to direct the 1st respondent namely, the Tamil Nadu Medical Service Corporation Ltd., (A Government of Tamil Nadu Undertaking), to reject the bids of the 3rd respondent, M/s.Padmavathi Hospitality and Facilities Management Services, Chennai, (Writ Petitioner in W.P.No.24412 of 2019) and the 4th respondent, M/s.Krystal Integrated Services Pvt. Ltd., Mumbai, consequently, direct the 1st respondent to award the contract relating to Tender No.432/outsourcing/DME/TNMSC/Engg/2019 dated 19.02.2019 to the petitioner for Zones 1 to 5. Affidavit filed in support of W.P.No.24412 of 2019: 3. In the affidavit filed by the Partner and Authorized representative of the Writ Petitioner, M/s.Padamavathi Hospitality & Facilities Management Services, it had been stated that the 1st respondent, Tamil Nadu Medical Service Corp....
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....ve followed all the procedures under the Tamil Nadu Transparency in Tender Act, 1998 and Rules framed thereunder. The 1st respondent stated that time was extended till 20.08.2019 to the petitioner to submit their reply insofar as the issue relating to GST is concerned. However, without submitting any further reply, the petitioner had filed this writ petition for the relief as stated above. 5. The petitioner also filed an additional affidavit, claiming that another bidder M/s.Neat and Clean Services Squared had originally emerged as the successful bidder for Zone 5, but was disqualified for not submitting their bid along with service tax and it was only because of such disqualification that the petitioner had emerged as the successful bidder for Zone 5. However, it was pointed out that the 1st respondent had not similarly disqualified the 4th respondent. Counter affidavit of the 1 st respondent: 6. In the counter affidavit filed by the 1st respondent, it had been stated that the 1st respondent is the Nodal Agency for procurement and distribution of Drugs,Surgical and Suture items for about 11,000 Government Medical Institutions all over Tamil Nadu, and also having the respo....
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....e negotiation for Zone 5. Both offered their revised prices. It was stated that still the 4th respondent emerged the successful bidder for Zone 1 to Zone 4 and the petitioner emerged the successful bidder for Zone 5. The 1st respondent gave a working sheet relating to the prices quoted by the 4th respondent. It was stated that the 1st respondent as the Tender Inviting Authority and also as the Tender Accepting Authority, had taken a decision with respect to applicability or nonapplicability of GST without deviating from any of the provisions of the Tamil Nadu Transparency in Tenders Act, 1998 and the Rules thereunder and also the terms of the tender. It is claimed that substantial reduction for the price in Zone 1 to Zone 4 had been obtained. It is also stated that the procedure adopted was not contrary to Rule 29(d) of the Tamil Nadu Transparency in Tenders Rules and Section 10 of the Tamil Nadu Transparency in Tenders Act, 1998. It was also stated that the 1st respondent was in the process of negotiations and the tender process had not yet been completed and not yet been approved by the Tender Accepting Authority, which is the Board of Directors of the 1st respondent. It was stat....
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....ific exemption for house keeping and security service from payment of GST). It was also stated that even if GST is to be paid, it was the responsibility of the 4^th respondent to pay the GST. Therefore, it was stated that the 1st respondent was justified in holding that the 4th respondent was the lowest bidder for Zone 1 to Zone 4. It was therefore stated that the Writ Petition should be dismissed. Memo filed by the 1 st respondent: 12. In the memo dated 10.09.2019, filed during the pendency of the Writ Petition, the 1st respondent had stated that the tenure of the contract awarded to the Writ Petitioner, M/s.Padmavathi Hospitality & Facilities Management Service, in the previous tender had expired on 30.04.2019 and it was extended till 31.07.2019. It was further stated that further extension till 30.10.2019 was placed before the Government and further orders are awaited. It was stated that the petitioner is the successful bidder insofar as the Zone 5 is concerned and the letter of award of contract was issued on 07.09.2019 to the successful tenderer. A further memo was filed by the 1st respondent on 30.10.2019 stating that the extension of the existing contract in favour of ....
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....had not activated Universal Accounting Number with Aadhar for all its employees, even after a lapse of 23 months from the date of Gazette Notification dated 04.01.2017. It was stated that since the 3rd and 4th respondents have to be disqualified, the petitioner as the 3rd successful bidder should be considered for award of the contract. The petitioner prayed that the Writ Petition should be allowed. Counter affidavit of the 1 st respondent: 17. In the counter affidavit filed by the 1st respondent, it had been stated that the 1st respondent was the Nodal Agency for procurement and distribution of Drugs,Surgical and Suture items for about 11,000 Government Medical Institutions all over Tamil Nadu, and also having the responsibility of finalizing the Agencies for providing House Keeping, Security and other related services for the Government Medical Institutions in the State of Tamil Nadu. The 1st respondent had floated an open tender in reference No. 432 / outsourcing / DME /TNMSC/Engg/2019 dated 19.02.2019, for providing service of house keeping, bio-medical waste management, security and pest control services in 94 Government Medical Institutions under the control o....
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....respect to the applicability or non-applicability of GST without deviating from any of the provisions of the Tamil Nadu Transparency in Tenders Act, 1998 and the Rules thereunder and also the terms of the tender. It was claimed that substantial reduction for the price in Zone 1 to Zone 4 had been obtained. It was also stated that the procedure adopted was not contrary to Rule 29(d) of the Tamil Nadu Transparency in Tenders Rules and Section 10 of the Tamil Nadu Transparency in Tenders Act, 1998. It was also stated that the 1st respondent was in the process of negotiations and the tender process had not yet been completed and not yet been approved by the Tender Accepting Authority, which is the Board of Directors of the 1st respondent. It was stated that the petitioner had come to Court at pre-mature stage and they can approach the Appellate Authority under Section 11 of the Tamil Nadu Transparency in Tenders Act, 1998, after notification of the award based on the orders to be passed by the Tender Accepting Authority. It was therefore stated that the Writ Petition should be dismissed. 20. The other respondents in W.P.No.27267 of 2019 did not file their counter affidavit. 21. T....
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....98 and the Rules thereunder. It had been very specifically provided both in the tender document and under Section 11 of the Tamil Nadu Transparency in Tenders Act, 1998, that any tenderer aggrieved by the order of the Tender Accepting Authority under Section 10 of the Act, may appeal to the Government within 10 days from the date of receipt of the order. Section 10 of the Act, is as follows: 10. Evaluation and Acceptance of Tender.- (1) The Tender Accepting Authority shall cause an objective evaluation of the tenders taking into consideration the schedule of rates as mentioned in the tender document and the prevailing market rate for procurement and comparison of the tenders in accordance with the procedure and criteria specified in the tender document. (2) After evaluation and comparison of tenders as specified in sub-section (1), the Tender Accepting Authority shall accept the lowest tender ascertained on the basis of objective and quantifiable factors specified in the tender document and giving relative weights among them. (3) Notwithstanding anything contained in sub-section (2), if the Tender Accepting Authority decides that the price of the....
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....r Accepting Authority shall cause the evaluation of tenders to be carried out strictly in accordance with the evaluation criteria indicated in the tender documents. 28. Rule 29 of the Tamil Nadu Transparency in Tenders Rules, 2000, is as follows: "29. Determination of the lowest evaluated price.- (1) Out of the tenders found to be substantially responsive after the initial examination, the tenderers who has bid the lowest evaluated price in accordance with the evaluation criteria or the tenderers scoring the highest on the evaluation criteria specified as the case may be shall be determined. (2) In determining the lowest evaluated price, the following factors shall be considered, namely:- (a) the quoted price shall be corrected for arithmetical errors; (b) in cases of discrepancy between the prices quoted in words and in figures, lower of the two shall be considered; (c) adjustments to the price quoted shall be made for deviations in the commercial conditions such as the delivery schedules and minor variations in the payment terms which are quantifiable but deemed to be non-material in the context of the particular tender; (d....
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....the presence of the tied tenderers or their representatives who choose to be present. 29. It is seen that four bidders had quoted their rates for all the five zones. They are as follows: Sl.No. Name of the Bidder Zones Quoted 1 M/s.Padmavathi Hospitality & Facilities Management Services, Chennai All 5 zones 2 M/s.Krystal Integrated Services Pvt. Ltd., Mumbai All 5 zones 3 M/s. Sumeet Facilities Pvt. Ltd., Chennai All 5 zones 4 M/s. All Services Global Pvt. Ltd., Hyderabad All 5 zones 30. There were four other bidders who had quoted for 1 or 2 or 3 out of the 5 zones. After evaluation, one of the bidders was rejected. Among the tender rules, clause 1.1.13 relates to tax and duties. It is as follows: "1.1.13.Taxes and Duties: The bidder must consider in the price all duties, royalties and applicable GST.No extra claim will be entertained during execution of the Contract, except change in GST rates as applicable." 31. The format for submission of the bid had been given in Format - F. The format is as follows: "Format - F Covered in the zone, (c) Man power cost for Zonal Level (D) Resource cost f....
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....td., Hyderabad 29,64,41,096 5,33,59,397 34,98,00,493 L3 Zone 4 Sl.No Bidder Quoted Rate excl. GST Rs. GST Rs. Quoted Rate incl.GST Rs. Position 1 M/s.Krystal Integrated Services Pvt. Ltd., Mumbai 29,94,97,221.04 0 29,94,97,221.04 L1 2 M/s.Padmavathi Hospitality & Facilities Management Services, Chennai 27,24,41,748.00 4,90,39,515.00 32,14,81,263.00 L2 3 M/s.Agile Security Force Pvt. Ltd., Hyderabad 29,49,31,444.00 5,30,87,659.92 34,80,19,103.92 L3 Zone 5 Sl. No Bidder Quoted Rate excl. GST Rs. GST Rs. Quoted Rate incl.GST Rs. Position 1 M/s.Padmavathi Hospitality & Facilities Management Services, Chennai 39,17,23,920.00 7,05,10,306 00 46,22,34,226.00 L1 2 M/s.Krystal Integrated Services Pvt. Ltd., Mumbai 46,38,27,576.40 0 46,38,27,576.40 L2 3 M/s.Agile Security Force Pvt. Ltd., Hyderabad 41,85,58,760.00 7,53,40,576.80 49,38,99,336.80 L3 33. It had been stated that the 4th respondent, M/s.Krystal Integrated Services Pvt. Ltd., Mumbai, had relied on Notification No.12/2017 - Central Tax (Rate) dated 28.06.2017....
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.... Authority. This Court cannot substitute itself for the Tender Accepting Authority. Once the Tender Accepting Authority had decided not to reject the bid offered by the 4th respondent and had passed an order under Section 10 of the Tamil Nadu Transparency in Tenders Act, 1998, then, any aggrieved party can file an appeal as provided under Section 11 of the Tamil Nadu Transparency in Tenders Act, 1998. Both the Writ Petitioners have failed to do so. The scope of the Writ Petition cannot be expanded to determine whether the bid quoted by the 4th respondent is legal or illegal. The Writ Court while exercising its jurisdiction under Article 226 of the Constitution of India cannot venture into a roving examination of the facts and also cannot venture into applicability of certain provisions of law or not. 37. In 2017 4 SCC 318, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO) Rep.by its Chairman and Managing Director and Another V. CSEPDITRISHE Consortium Rep by its Managing Director and Another, the Hon'ble Supreme Court had observed as follows: "37. Before parting with the case we are constrained to add something. We do so with immense pain. The re....
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.... cumbersome exercise, with long drawn out litigation at the threshold. The private sector is competing often in the same field. Promptness and efficiency levels in private contracts, thus, often tend to make the tenders of the public sector a non-competitive exercise. This works to a great disadvantage to the Government and the public sector. 39. In Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd. [Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818], this Court has expounded further on this aspect, while observing that the decision-making process in accepting or rejecting the bid should not be interfered with. Interference is permissible only if the decision-making process is arbitrary or irrational to an extent that no responsible authority, acting reasonably and in accordance with law, could have reached such a decision. It has been cautioned that constitutional courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute their view for that of the administrative authority. Mere disagreement with the decision-making process would not suffice." (Emphasis Supplied) 39. In ....