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2022 (10) TMI 53
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....y, the Airport Authority of India (for short, 'AAI') has preferred Civil Appeal No. 6615/2022. The subsequent order dated 24.09.2021 rejecting the review application being Review Petition No. 150/2021 to review and recall the final judgment and order passed in Writ Petition No. 5722/2020 is also the subject matter of Civil Appeal No. 6616/2022. 2. The facts leading to the present appeals in a nutshell are as under: The appellant herein - AAI floated a Request for Proposal (for short, 'RFP')/tender for concession of ground handling services at Group 'A', 'B' and 'C' airports owned by it on 01.05.2018. The appellant herein - AAI also floated a RFP/tender for concession of ground handling services at Group 'D' airports owned by it on 02.05.2018. That the RFP for Group 'D' airports was modified multiple times and finally republished as Corrigendum No. 21. However, subsequently, vide letter dated 10.06.2019, AAI cancelled the tender earlier floated for Group 'D' airports. That thereafter, the AAI published a fresh RFP on 28.07.2020 for Group 'D1' airports. The respective RFPs contained the eligibility criteria which include the technical and financial qualifications. 2.1 Respondent N....
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....s stage, it is required to be noted that pursuant to the directions of the High Court, the AAI agreed to reduce the requirement of Annual Turnover criterion to Rs. 18 crores for Group 'D1' airports. The AAI also challenged the locus of respondent No. 1 - original writ petitioner. 2.3 By the impugned judgment and order, the High Court has set aside the respective RFPs and has set aside the decision to carry out regionwise sub-categorisation of the 49 airports falling under Group D-1. The High Court has also set aside the stipulation in the RFPs that only previous work experience in respect of providing GHS to scheduled aircrafts shall be considered acceptable for the purpose of the impugned tender/RFP and the revised minimum Annual Turnover criteria of INR 18 crores observing the same as discriminatory and arbitrary. 2.4 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, as also the order passed in the review application, the original respondent - AAI has preferred the present appeals. 3. Shri K.M. Nataraj, learned Additional Solicitor General of India appearing for AAI has assailed the impugned judgment and order passed by the High ....
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....at so far as the criteria for evaluation - 36 months experience in past 7 years in providing 3 out of 7 Core GHS is concerned, the purpose of stipulating past experience of handling scheduled airlines was that such airlines operate larger aircrafts and the number of flights, passengers and amount of cargo would increase in future with the opening up of the aviation sector. 3.4 Now so far as providing and/or insistence of the financial capacity - Annual Turnover of Rs. 30 crores in any one of last three financial years is concerned, it is submitted that as such the same was scaled down to Rs. 18 crores. It is submitted that even otherwise the said criterion was set in view of the nature of the tender and the consequential financial strength which would be required in order to fulfil the obligations. 3.5 It is submitted that the aforesaid conditions have been incorporated keeping in mind the commercial considerations and commercial expediency and the tender making authority is well within its rights to formulate conditions based on its commercial wisdom. 3.6 It is submitted that as per the settled position of law, setting of terms and conditions of invitation to tender are within ....
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....4.1 It is vehemently submitted by the learned counsel appearing on behalf of respondent No.1 that all the members of respondent No.1 are GHAs and were to participate in the tender. It is submitted that after the authorities did not respond to the representations of the individual GHA members of respondent No.1, only thereafter a writ petition was preferred before the High Court challenging the illegal policy changes made in the tender. It is submitted that therefore it cannot be said that respondent No.1 - original writ petitioner had no locus standi to file the writ petition challenging the most arbitrary and illegal tender conditions. 4.2 It is then submitted that since the tender conditions No. 2.2.1(a) allowed three entities to form a consortium to bid, the respondent could have been a potential bidder as part of a consortium with two of its member GHAs who as MSME could have a maximum turnover of Rs. 5 crore each. It is submitted that however since the turnover criteria to be eligible to bid was arbitrarily fixed as Rs. 30 crores, even as a consortium with two of its member GHAs, the said eligibility has impaired the fundamental rights of the respondent and its members who ar....
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....e field of civil aviation had filed a writ petition challenging the tender conditions in the respective RFPs. It is required to be noted that none of the GHAs who participated in the tender process and/or could have participated in the tender process have challenged the tender conditions. It is required to be noted that the writ petition before the High Court was not in the nature of Public Interest Litigation. In that view of the matter, it is not appreciable how respondent No.1 - original writ petitioner being an NGO would have any locus standi to maintain the writ petition challenging the tender conditions in the respective RFPs. Respondent No.1 cannot be said to be an" aggrieved party". Therefore, in the present case, the High Court has erred in entertaining the writ petition at the instance of respondent No.1, challenging the eligibility criteria/tender conditions mentioned in the respective RFPs. The High Court ought to have dismissed the writ petition on the ground of locus standi of respondent No.1 - original writ petitioner to maintain the writ petition. 6. Even otherwise, even on merits also, the High Court has erred in quashing and setting aside the eligibility criteria....
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....o, the authority inviting tenders can enter into negotiations or grant relaxation for bona fide and cogent reasons provided such relaxation is permissible under the terms governing the tender process." In the case of Michigan Rubber (India) Ltd. (supra), after considering the law on the judicial scrutiny with respect to tender conditions, ultimately it is concluded in paragraph 23 as under: "23. From the above decisions, the following principles emerge: (a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities; (b) Fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conf....