TaxTMI 
TaxTMI 
2017 (7) TMI 1425
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.... produced its entire original record, including all documents leading to award of contract pursuant to the tender; the successful bidder, i.e. the third respondent is represented by senior counsel. Both respondents state that the petition can be heard without formal affidavits or replies. The petition was therefore heard, finally on merits. 2. The petitioner is a registered partnership firm providing security and other related services. CGHS, on 25.04.2017, issued the NIT, calling for bids from agencies for providing round-the-clock security services in the CGHS Wellness Centres, hospitals, stores and offices located in Delhi/NCR under the Directorate General of Central Government Health Scheme on contract basis for a period of one year under a two bid system. The petitioner and Jai Prakash furnished their bids. The petitioner alleges that its turnover for the last 3 years was substantially higher than the average annual turnover of Jai Prakash. It is submitted that although the last date prescribed for uploading the bids was 16.05.2017, corrigenda were issued on 04.05.2017 and 12.05.2017. Later, the technical bid opening (i.e. the first part of the tender process) took place....
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....de your goods self to avail the award of the tender by fraudulent means. Case of Black Listing of our agency was trialed at appropriate level by department of Trade & Taxes and an order was passed by Hon'ble Special Commissioner Sh. S.A. Awaradi on 29.12.2010 removing the clause of black listing and further participation in the tender process (Copy of order attached). It is also pertinent to mention that the Case No. W.P. (C) 1433/2012 & CM APPL 11632/2013 mentioned in the complaint is regarding our writ petition and miscellaneous claim against Trade & Taxes department for not releasing our EMD, the same may please be verified. However we also wish to mention that after clarifications on the matter we have also been awarded various contracts i.e. C.G.H.C. (Housekeeping for all dispensaries from 2013 to 2015) NDMC, NSIT, DTTDC, India Gate (Central Vista Complex), Dr. RML Hospital and we have also been issued an Experience Certificate with Excellent performance. In view of the above facts, false and fabricated allegation raised against our firm by M/s 2918 Jai Prakash Security Agency, you are requested to take appropriate action against them un....
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....de and Taxes was asked to clarify if the petitioner had been debarred on 13.07.2010 and further related facts were called for. Subsequently, the petitioner was issued with the letter/notice eliciting its response, on 12.06.2017. The petitioner in its reply of 15.06.2017 referred to the previous order of the Court setting aside the blacklisting order and also enclosed a copy of the order of the Special Commissioner, in the light of the High Court's order (in W.P.(C) No.4691/2010). The Special Commissioner concluded as follows:- "(16) The Security Agency and the Departmental Representative were heard in detail. The documents and written submissions made by both the parties have been gone through carefully. Department of Trade & Taxes issued the Notice dated 6.07.2010 to M/s. Good Year Security Services directing them to submit explanation on or before 12.07.2010 at 11.00 AM as to why the penalty clause of forfeiture of performance guarantee of Rs.3.95 lakhs stipulated in terms and conditions of the agreement should not be invoked including black-listing and rescinding the contract for dereliction of duties by the said company and for collecting illegal money by its emplo....
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....A) b. Blacklisting order contested in Delhi High Court and order was set aside, vide order of Hon'ble High Court of Delhi of W.P.(C) 4691/2010 and C.M No.9275/2010 dated 26.10.2010. c. One Court Case pending in Delhi High Court W.P(C) 1433/2012 and C.M. Appl. 11632/2013. On enquiry, M/s Good Year Security Services submitted that court case pending is the writ petition and miscellaneous claims and Dept of Trade and Taxes, GNCT for not releasing the EMD. However, in W.P(C) 1433/2012 and C.M. Appl. 11632/2013, order dated 26.8.14 of Delhi High Court states "The learned counsel for the respondent states that bank guarantee has been invoked on account of the services rendered by the petitioner having been found to be unsatisfactory" (Annexure B) This committee is of the view that the bid may be rejected as the bidder has submitted a false affidavit to the effect that that the agency has not been involved in any litigation regarding Security Jobs as per clause 16 of eligibility criteria on page 10 of Tender document.(Annexure C) In view of suppression and misrepresentation of facts, the bid of the firm can be rejected as per clause 10(i), 10(ii)(b) on page 14, 15 of Tender document....
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....ts Tender Evaluation Committee, rejected the petitioner's bid on the ground that a litigation, in fact, was pending i.e. W.P.(C) No.1433/2012. Now, the facts of this case show that the initial allegation levelled against the petitioner by Jai Prakash was that it had been blacklisted for a substantial period and that this fact was studiously suppressed from CGHS. The records however disclose that the initial blacklisting order was set aside and the Court had required the Commissioner to go into the matter afresh. After remission, the Special Commissioner was of the opinion that the charge made against the petitioner was unfounded - as can be seen from the extracted portions of the administrative order. Therefore, Jai Prakash's allegations were baseless, on that aspect. So far as the pending litigation i.e. W.P.(C) No.1433/2012 goes, the Tender Evaluation Committee solely went by some pleading made in counter affidavit of the respondent (in that case) that a bank guarantee was invoked since the services of the petitioner were unsatisfactory. Now, a mere allegation to that effect, in the opinion of the Court, is not determinative. More crucially, the eligibility condition clea....
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....ture Ltd. Vs. Nagpur Metro Rail Corporation Ltd. & Anr 2016 (16) SCC 818; JSW Infrastructure v Kakinada Seaports 2017 (4) SCC 740 etc.) have emphasized that courts play a limited and circumscribed role in scrutiny, while exercising judicial review under Article 226 of the Constitution of India and that deference to executive decision ought to be the rule. Again, earlier Global Energy Ltd & Anr v Adani Exports Ltd & Ors (2005) 4 SCC 435 had highlighted, that tender conditions cannot normally be subjected to judicial review unless they are arbitrary or discriminatory. When the facts bespeak of illegality, manifest arbitrariness or unreasonable decision making (i.e. a decision so unreasonable that no reasonable man placed in a like situation would have taken it) or when the decision is because of lack of good faith (i.e. it is mala fide) the court can interdict the administrative or public agency's decision. Each of the decisions have emphasized that non-arbitrariness and reasonableness are bedrock principles which, if ignored, can imperil the executive agency's decision. 13. This court is of opinion that in the facts of this case, the rejection of the petitioner's bid ....