TaxTMI 
TaxTMI 
2023 (11) TMI 1330
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.... Upendra Prasad Singh, AC to GP 25 CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI) In the instant writ petition, petitioners have prayed for the following relief/reliefs: "a. For quashing and setting aside the minutes of meeting of the Technical Committee (Respondent No. 3) dated 22.11.2022 ("impugned order") issued on 28.11.2022 as contained in Annexure P/1, by which the Petitioners have been held to be disqualified in technical bid in the most arbitrary manner, contrary to principles of natural justice, illegally as well as having without jurisdiction. b. For directing the State Health Society, Bihar (Respondent No. 2) to declare the petitioners as technically qualified and consequently open their financial bid in relation to the Notice Inviting Tender (NIT) bearing reference no. 01/SHSB/PPP(AMBULANCE)/2022-23. c. For issuing appropriate orders restraining the respondent authorities from opening financial bid and handing over the work order (in relation to the tender in furtherance of Notice Inviting Tender (NIT) Reference no., 01/SHSB/PPP(Ambulance)/2022-23 to any of the bidders until the pendency of the present writ application. d. For declaring that th....
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....ty mobilization and participatory management. It is providing various kind of services through different projects in the States of Bihar, Jharkhand, Chattisgarh, Madhya Pradesh, Delhi and Rajasthan. 4. Petitioner No. 3 is the Consortium of the petitioner Nos. 1 and 2. Petitioner No. 3 was formed to participate in the tender issued by the State Health Society, Bihar (hereinafter referred to as 'Society') with reference to 01/SHSB/PPP(AMBULANCE)/2022-23 (hereinafter referred to as 'the tender') for selection of the agency for operationalization and management of fleet of ambulances and mortuary vans through Integrated Centralized Call Center in the State of Bihar under Public Private Partnership (hereinafter referred to as 'PPP'). These three petitioners are questioning the validity of the proceedings of meetings dated 22.11.2022 by which the technical disqualification of the petitioner No. 3 was notified in the website on 28.11.2022. 5. It is necessary to take note of the following dates and events: S. No. Dates Events 1. 21.04.2017 In the year 2016, fourth respondent M/s Pashupatinath Distributors Private Limited had consortium with Sammaan Foundation, petitioner No. 2 vide....
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....along with number of documents. 16. 09.11.2022/ 22.11.2022 Sammaan Foundation - petitioner No. 2 sought for action in the light of earlier representations while addressing to the Society respondent. 17. 22.11.2022 Technical Committee disqualified the petitioners in the technical bid. 18. 30.11.2022 Petitioners had submitted for reconsideration of their claim with reference to rejection of their technical bid. 19. 30.11.2022 Respondent - Society informed the Ziquitza Health Care Ltd, Mumbai - respondent No. 6, M/s GVK Emergency Management and Research Institute, Telangana and M/s Pashupatinath Distributors Private Limited, Patna - respondent No. 4. 20. 09.11.2022/ 22.11.2022 Sammaan Foundation - petitioner No. 2 sought for action in the light of earlier representations while addressing to the Society respondent. 21. 02.12.2022 EMRI (GREEN) Health Services submitted objection against fourth respondent to the extent that there is no compliance as per RFP Section - V, Clause 2.2 to the Society. 22. 23.01.2023 Respondent State Health Society, Bihar opened the financial bid. 23. 23.01.2023 Minutes of meeting of PAC was convened while declaring tha....
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....tions to the bidders. On this ground, impugned action of the respondent - Society is liable to be set aside. 8. Learned senior counsel for the petitioners further submitted insofar as questioning the validity to declare fourth respondent's bid application responsive that it was not in order and consequently it being treated as L1 and therefore award of work to it was wrong and incorrect. On this issue he has contended that fourth respondent did not fulfill the eligibility criteria i.e., Clause 2.2 insofar as in not meeting the criteria of annual turnover of INR 100 crores for each of the year - FY 2018-19, FY 2019-20 and FY 2020-21. 9. It was further submitted that fourth respondent has not fulfilled yet another eligibility criteria i.e. Clause 2.3 read with Annexure - C to the tender - assignment of similar nature being successfully completed by it. It is submitted that the fourth respondent is lacking in experience in operations and management of at least 750 ambulances, i.e. Basic Life Support Ambulance (BLSA) and minimum 50 ambulances i.e. Advance Life Support Ambulance (ALSA) supported by Call Centre of at least 75 seats in the public and private sector during last three yea....
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....pective bidders to produce material information out of Audited Balance Sheet, petitioner/bidders are not expected to produce the same. (ii) B.S.N. Joshi & Sons Ltd vs. Nair Coal Services Ltd. & Others reported in 2006 11 SCC 548, Paragraph No. 66 (i) to (vii) and No. 69 reads as under: "66. We are also not shutting our eyes towards the new principles of judicial review which are being developed; but the law as it stands now having regard to the principles laid down in the aforementioned decisions may be summarised as under: (i) if there are essential conditions, the same must be adhered to; (ii) if there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully; (iii) if, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing; (iv) the parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance with another part of tender contr....
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....cient and cogent reasons, the writ courts would be well advised to refrain themselves in exercise of their discretionary jurisdiction" (iii) Dutta Associates Pvt. Ltd vs. Indo Merchatiles Pvt. Ltd & Ors reported in (1997) 1 SCC 53, relevant Paragraph Nos. 4 to 8 reads as under: "4. After hearing the parties, we are of the opinion that the entire process leading to the acceptance of the appellant's tender is vitiated by more than one illegality. Firstly, the tender notice did not specify the "viability range" nor did it say that only the tenders coming within the viability range will be considered. More significantly, the tender notice did not even say that after receiving the tenders, the Commissioner/Government would first determine the "viability range" and would then call upon the lowest eligible tenderer to make a counter-offer. The exercise of determining the viability range and calling upon Dutta Associates to make a counter-offer on the alleged ground that he was the lowest tenderer among the eligible tenderers is outside the tender notice. Fairness demanded that the authority should have notified in the tender notice itself the procedure which they proposed to adop....
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.... that while Dutta Associates (appellant herein) shall not be given the contract, he "shall be allowed to execute the contract at the lowest quoted rate which is stated to be Rs 9.20 by the writ petitioner. Respondent 3 (Dutta Associates) states that the lowest quoted rate is Rs 11.14. If the lowest quoted rate is Rs 9.20, it is that rate at which the contract shall be given to Respondent 3". It is pursuant to the said order that the appellant-Dutta Associates has been supplying rectified spirit @ Rs 9.20 per LPL since June 1994 till October 1996. The said order did not compel the appellant (Respondent 3 in the writ petition) to supply at the rate of Rs 9.20p. If that rate was not feasible or economic, he could well have said, 'sorry'. He did not say so but agreed to and has been supplying at that rate, till October 1996. It is equally significant to note that pursuant to the interim orders of this Court (which directed the Government to implement the orders of the Guwahati High Court with respect to interim arrangement) negotiations were held with both the appellant and the first respondent herein; both offered to supply at Rs 9.20p. The Commissioner, of course, chose the first res....
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....as allowed the writ appeal. 6. Before parting with this matter, we must also say that we have not been able to appreciate a particular observation of the Division Bench. In para 12 of its judgment, it said: "In a matter like supply of spirit to warehouse, offer of low or high rate does not affect the government revenue. The more the profit earned by the supplier, the more sales tax can be levied by the Government." We find it difficult to understand how the acceptance of a tender at a high rate does not affect the government revenue. Secondly, we find it yet more difficult to understand the observation that more profit the supplier earns, the more sales tax will the Government realise. Sales tax is not linked with profit. It is linked to the sale price and we see no logic in the Government paying higher rate at a substantive figure and realising sales tax at a smaller figure. 7. In the circumstances, we affirm the judgment of the Division Bench in writ appeal on the grounds stated above and direct that fresh tenders may be floated in the light of the observations made in this judgment. We reiterate that whatever procedure the Government proposes to follow in accepting the ten....
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....his regard, he has cited Section 3(i) read with Section 129(1) and explanation of the Companies Act, 2013 requires that Column No. 2 note is essential. In not furnishing Column No. 2 - note of the Audited Balance Sheet on behalf of petitioners for the years FY 2018-19, FY 2019-20 and FY 2020- 21, the petitioners bid application is defective, in other words deficiency is in not furnishing complete records in the light of Clause 2.2, eligibility criteria for bidders read with mandatory requirements. 13. It has been further submitted that the petitioners have made certain allegations relating to leaking of information with reference to e-mail sent by the petitioners to members of technical committee on 29.06.2022. Thereafter, the same was communicated to the fourth respondent through administrative officer on 30.06.2022. The aforementioned contention of the petitioners is incorrect to the extent that e-mail communication of the petitioners is not only addressed to the Five Members Committee and it was addressed to others also. That apart whatever objection filed by the petitioners was required to be ascertained from fourth respondent, therefore, fourth respondent has been informed ab....
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....Crore from Ambulance Services during the financial years FY 2018-19, FY 2019-20 & FY 2020-21, as evidenced by the audited accounts of the bidder. i the bidder must have cumulative minimum average annual turnover of INR 100 Crore from Ambulance Services during the financial years FY 2018-19, 2019-20 & FY 2020-21. However, the lead partner in the consortium must have minimum annual average turnover of INR 60 Crore, while other partner must have minimum annual average turnover of INR 25 Crore from Ambulance Services during the mentioned financial years. However, the cumulative total minimum average annual turnover of consortium members jointly must be Rs. 100 Crore. Self-attested copies of the below documents for concerned financial years: 1. Audited Balance sheet 2. Statement of Profit & loss account: if the bidder (sole bidder or each partners in case of consortium) is registered under Companies Act/LLP Act, or Income & expenditure account: if the bidder (sole bidder or each partners in case of consortium) is registered under Societies Registration Act, or Indian Trusts Act, or Section 8 under Companies Act. 3. Turnover certificate issued by Chartered Accountant (must be mentio....
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....e, Office Address, Phone No., email ID) 1. ALSA: ---- BLSA: ---- 2. ALSA: ---- BLSA: ---- 3. ALSA: ---- BLSA: ---- -- The relevant documents (as mentioned in the eligibility criteria) evidencing, the above said experience are submitted online. We further confirm that the submitting documents and the details provided in the certificate is true to best of my knowledge and we are aware that our Application for this project would be liable for rejection in case any material misrepresentation is made or discovered at any stage of the Bidding Process/ Selection process and legal action may be taken against us. Dated this ............. Day of.............2022 Name of the Bidder............... Signature of the Authorized Person........... Name of the Authorized Person.............. Designation of the Authorized Person............." Submission of the Fourth respondent 14. Mr. Jitendra Singh, learned Senior counsel for the fourth respondent submitted that rejection of petitioners' bid is in order. He has ....
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....is also submitted that minimum 100 crores turnover is required to be taken note of with reference to financial statement under Section 129(3) read with Section 2(6) of Companies Act, 2013 which includes "associate company". Fourth respondent had earlier gained experience and it would meet the requirement of 100 crores turnover. 18. Learned counsel for the fourth respondent relied on the following three decisions : (i) National High Speed Rail Corpn. Ltd. vs. Montecarlo Ltd. and another reported in (2022) 6 SCC 401, Para 28.4, 28.5. He apprised that Poddar's case (cited supra) can be distinguished on the principle that party participated with full knowledge. (ii) New Horizons Ltd. and Others vs. Union of India and Others reported in (1995) 1 SCC 478, Paragraph Nos. 11, 14, 22, 23, 24, 25 and 26. (iii) Silppi Constructions Contractors vs. Union of India and Another reported in (2020) 16 SCC 489, Paragraph 20 and 21. 19. Section II of the NIT - Paragraph 10 relates to tender submission. He is relying on 10.2 and 10.3 which reads as under: "10. Tender Submission 10.2 Technical evaluation of the Bid will be done on the basis of technical qualification criteria and documents....
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....ancial bid of respondent no. 4 while declaring it to be technically qualified notwithstanding the fact that in terms of the Notice Inviting Tender, in question respondent no. 4 was not event qualified to participate in the process of bidding pursuant to NIT bearing Reference No. 01/SHSB/PPP(AMBULANCE)/2022-23 published by the State Health Society, Bihar, Patna. (iii) Issuance of a direction, order or writ, including writ in the nature of mandamus commanding the concerned respondent authorities to consider the present petitioner to be L1 bidder for the purposes of award of contract in its favour pursuant to the process of bidding conducted in furtherance of NIT bearing Reference No. 01/SHSB/PPP(AMBULANCE)/2022-23 published by the State Health Society, Bihar, Patna and accordingly, take necessary follow-up action in its favour in accordance with law. (iv) Issuance of a declaration holding that respondent no. 4 was not eligible and qualified to be allowed to participate in the process of bidding pursuant to Notice Inviting Tender bearing Reference No. 01/SHSB/PPP(AMBULANCE)/2022-23 issued by the concerned authorities under the State Health Society, Bihar, Patna, in view of the f....
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....l for the fourth respondent while defending his selection and treating him as L1, submitted that the petitioner has presented this petition belatedly i.e. after six months of technical evaluation of bids and four months from the date of financial bid. In other words, he is not a vigilant litigant insofar as filing this petition. 28. Learned counsel for the fourth respondent further submitted that on Page 24 of the affidavit dated 11.10.2023, balance sheet has been placed on record and for the year 2021 it is mentioned 163 plus crores, for the year 2020 it is mentioned as 139 plus crores and for the year 2019 it is 121 plus crores. To this effect Chartered Accountant's certificate dated 01.06.2022 in support of aforementioned balance sheet read with the amount mentioned therein has been pointed out by the learned counsel for respondent No. 4. Therefore, the criteria of 100 crores is fulfilled by the fourth respondent insofar as entertaining its bid application and treating the same as L1. 29. It is further pointed out from the agreement dated 05.08.2016 to the extent that fourth respondent had invested 100 percent, therefore, whatever the agreement has been entered with the Sammaa....
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.... (2007) 8 SCC 1, Para Nos. 38 and 39. 33. Learned counsel for the petitioner/BVG while replying to defects of the Society on leaking of e-mail submitted that administrative officer of Society - respondent has no business to communicate e-mail sent by the petitioner. It is submitted that all the members of the Committee were communicated with the e- mails. Therefore, prima facie, there is leak of material information of the petitioner to the fourth respondent by the administrative officer of the Society - respondent which is unethical in the tender process. 34. It is submitted that annual turnover statement of fourth respondent for the year 2018-19 has been shown as 121.28 crores, for the year 2019 - 20 as 139.20 crores and for the year 2020-21 as 163.93 crores. Overall it is 424.41 crores vide statement dated 01.06.2022 whereas yet another document for the year 2017 - 18 it has been shown as 695.62 (in Lakhs - Rs.), for the year 2018 - 19 as 1952.70 (in Lakhs - Rs.), for the year 2019 - 20 as 2302.48 (in Lakhs - Rs.), this document is dated 19.03.2021. Therefore, fourth respondent has not approached the respondent - Society with clean hands. In other words, there are discrepancie....
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....ion/criteria laid down in Clause 2.2 and 2.3. It is pointed out from the supplementary affidavit filed on behalf of the Society. 40. It is submitted that fourth respondent was assigned identical contract to the extent that fourth respondent in his individual capacity is executing work. On the other hand, declaration on behalf of fourth respondent in which it is stated that the fourth respondent was executing identical matter for the purpose of experience in the present matter is in it's individual capacity and not as partnership or in consortium. On the other hand, it is submitted that Chartered Accountant's certificate dated 28.05.2022 issued in favour of fourth respondent speaks of consortium. Therefore, experience certificate is not tallying with what has been claimed by the fourth respondent. 41. It is further pointed out that GST, PAN, ESI and PF, it is of individual and whereas consortium material reveals different numbers. 42. Learned counsel for the petitioner of CWJC No. 8553 of 2023 in support of the contention that if L1 fails L2 like petitioner was to be awarded contract, on this point he is relying on Apex Court's decision in the case of Vidarbha Irrigation Developm....
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.... decision in the case of New Horizons Ltd. and Others vs. Union of India and Others reported in (1995) 1 SCC 478, Paragraph Nos. 23 and 24 and M/S N.G. Projects Limited vs. M/S Vinod Kumar Jain and Ors. reported in (2022) 6 SCC 127, Paragraph Nos. 22 and 23 to the extent that past experience is required to be taken note of irrespective of individual or experience gained subsequently, therefore, there is no infirmity on behalf of the Society in declaring the fourth respondent as L1 in the light of fulfilling the eligibility criteria under Clause 2.2 read with 2.3, therefore, the petitioner has not made out a case and petition is liable to be dismissed. Analysis 49. Core issues involved in the present writ petition are as under: (i) Whether petitioners' writ petition filed by the BVG Limited and two others is maintainable or not? (ii) Whether petition filed by M/s Ziqitza Healthcare Limited is maintainable on the ground of delay or not? (iii) Whether rejection of bid application of Petitioner - BVG India Limited and two others is in order or not? (iv) Whether fourth respondent M/s Pashupatinath Distributors Private Limited, its bid application is in consonance with eligibili....
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....f about four to six months insofar as filing the petition. Learned counsel for the petitioner M/s Ziqitza Healthcare Limited submitted that there is no delay as contended by the aforementioned counsel for Society and fourth respondent, since BVG India Limited and others petition was still pending consideration. In the event of BVG India Limited and others suffered an order, in that event, petitioner who is L2 is entitled to claim to the effect that its bid application is in order. On the other hand fourth respondent's bid application is not in order for want of eligibility criteria under Clause 2.2 and Clause 2.3. We are satisfied with the contention on behalf of M/s Ziqitza to the effect that there is no delay in filing writ petition. Hence, preliminary objection raised on behalf of second respondent - Society and fourth respondent stands rejected. 53. Before adverting on the merits of the case, it is necessary to take note of principles laid down by the Apex Court in the case of Silppi Constructions cited supra, Paragraph 20 of reads as under: "20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhe....
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....cond respondent - Society to favour the fourth respondent - Pashupatinath Distributor Private Limited is evident in ignoring the criteria and eligibility mentioned in the NIT read with material information placed by the fourth respondent along with bid application. 54. Petitioner - BVG and two others bid application was rejected at technical evaluation stage on the score that petitioners' Audited Balance Sheet read with statement of profit and loss account failed to furnish internal material information of the balance sheet like Notes. It is submitted that Society - respondent had sought for certain clarification like emergency ambulance services and ambulance services etc. with the BVG India Limited and got clarification from the petitioners. At the same time they should have sought for clarification in respect of non-production of material information like Notes which is mentioned in the Audited Balance Sheet read with the statement of profit and loss account. 55. Further it is submitted that there are no instructions to respective bidders to furnish internal material information from the Audited Balance Sheet read with the statement of profit and loss account like Notes and it....
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....dders are not expected to produce internal material information with reference to Audited Balance Sheet unless specific instructions to the respective intended bidders. That apart, very object of production of Audited Balance Sheet read with the profit and loss account is to verify whether the respective bidders are fulfilling one of the criteria at Clause 2.2 of the NIT. In other words, annual turnover of INR 100 crore from ambulance services for the financial years 2018 - 19, 2019 - 20, 2020 - 21. In other words, Notes which is part and parcel of Audited Balance Sheet has no relevancy. Rejection of the petitioner - BVGs technical evaluation is arbitrary and illegal on this count. 56. Respective counsels cited the following decisions: 56.1 The petitioner - BVG India Limited and others relied on: (a) Poddar Steel Corporation Vs. Ganesh Engineering Works and Others cited supra, paragraph Nos. 2, 6 and 7 reads as under: "2. In response to a notice inviting tenders by the Diesel Locomotive Works, Indian Railways, in connection with disposal of one lot of Ferrous Scrap, a number of tenders were submitted by the appellant, respondent 1 and other intending purchasers. The tenders of....
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.... be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases. This aspect was examined by this Court in C.J. Fernandez v. State of Karnataka [(1990) 2 SCC 488] a case dealing with tenders. Although not in an entirely identical situation as the present one, the observations in the judgment support our view. The High Court has, in the impugned decision, relied upon Ramana Dayaram Shetty v. International Airport Authority of India [(1979) 3 SCC 489] but has failed to appreciate that the reported case belonged to the first category where the strict compliance of the condition could be insisted upon. The authority in that case, by not insisting upon the requirement in the tender notice which was an essential condition of eligibility, bestowed a favour on one of the bidders, which amounted to illegal discrimination. The judgment indicates that the court closely examined the nature of the condition which had been relaxed and its impact before answering the question whethe....
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....have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance with another part of tender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction; (v) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with; (vi) the contractors cannot form a cartel. If despite the same, their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given priority; (vii) where a decision has been taken purely on public interest, the court ordinarily should exercise judicial restraint. 69. While saying so, however, we would like to....
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....ot fulfill the eligibility criteria under Clause 2.2 read with Clause 2.3 of the NIT. (b) New Horizons Ltd. and Others case cited supra, this decision does not assist the fourth respondent's contention since on factual aspect fourth respondent is a sole bidder in the light of Clause 2.2, therefore, the aforementioned decision does not assist case of the fourth respondent. (c) Silppi Constructions Contractors case cited supra. (d) Reliance Energy Ltd. and another vs. Maharashtra State Road Development Corp. Ltd. and Others reported in (2007) 8 SCC 1. (e) N.G. Project Limited vs. Vinod Kumar Jain and others cited supra. (f) Vidarbha Irrigation Development Corp. and Others. vs. Anoj Kumar Agarwala and Others cited supra. All these judgments do not assist the fourth respondent's contention in view of the fact that fourth respondent does not fulfill the eligibility criteria under Clause 2.2 read with Clause 2.3 of the NIT. 56.4 In CWJC No. 8553 of 2023, M/s Ziqitza Healthcare Limited, fourth respondent relied on the following decisions: (a) Municipal Corporation, Ujjain and another vs. BVG India Limited and others cited supra. It supports the petitioner's contention in part....
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...." 51. It is necessary to note that in Annexure 1 to the NIT at Sl. No. 11, the bidder was required to set out details of any other company/firm involved as a consortium member to which Respondent 1 BVG India Ltd. replied in the negative, which means no other company/firm was involved as a consortium member with BVG India Limited in the process in question. In other words, BVG India Limited submitted the bid on its own unaccompanied by any of the consortium member. Despite the same, BVG India Limited (Respondent 1) furnished the experience certificate of BVG Kshitij Waste Management Services Pvt. Ltd. No information whatsoever was given of the relationship/linkage of BVG Kshitij and Respondent 1 BVG India Limited. Therefore, reliance placed by Respondent 1 on the purported experience certificate issued in the name of BVG Kshitij Waste Management Services Pvt. Ltd. would not come to the help of Respondent 1 to show its work experience. The Pimpri Chinchwad Municipal Corporation (PCMC) Certificate dated 24-10-2013 is in Marathi and the same discloses that the work order was issued on 2-3-2012. The PCMC Certificate thus neither shows three years' experience of BVG India Limited ....
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....ing damages in the present case, for the reasons that in the present case by virtue of interim order fourth respondent was permitted to execute the subject matter of tender work and it would be subject to outcome of the present petitions, therefore, the aforementioned decision does not assist the fourth respondent's contention. 57. In view of the above analysis, petitioner - BVG India Limited and two others have made out a prima facie case that rejection of their technical bid is contrary to factual aspects and contrary to Clause 2.2 of NIT. Clause 2.2 does not stipulate or instruct respective bidders to furnish internal material information from the Audited Balance Sheet read with the statement of profit and loss like Notes. Therefore, impugned decision in disqualifying the petitioner BVG India Limited and others stands set aside. 58. The petitioners - BVG India Limited and two others as well as M/s Ziqitza Healthcare have questioned the bid of the fourth respondent M/s Pashupatinath Distributors Private Limited after clearing fourth respondent's technical bid evaluation, financial bid, treating L1 and finally award of contract. It is submitted that fourth respondent does not fu....
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....ess in the bid process. On these counts, the fourth respondent's technical bid evaluation and further proceedings of financial bid and declaring as L1 and further award of contract are liable to be set aside. Further, process of revisiting the remaining bid application are required to be examined from the stage of technical evaluation till award of contract. 59. Learned counsel for M/s Ziqitza Healthcare submitted that fourth respondent's eligibility has not been examined in the light of Clause 2.2 read with Clause 2.3 in respect of fulfilling Rs. 100 crores and furnishing false statement of experience gained in ambulance services. He has also reiterated the arguments advanced on behalf of the petitioner in the BVG India Limited. In addition to the aforementioned contention, he has pointed out specific false statement made on behalf of the fourth respondent insofar as relying on GST, PAN, ESI and PF. In the light of these many defects in the bid application of the fourth respondent, second respondent - Society has favoured him. On these issues, fourth respondent's eligibility for technical bid evaluation, financial bid, declaring fourth respondent as L1 and further award of contra....
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....ns in the case of New Horizon Ltd. and others vs. Union of India and others cited supra and M/s N.G. Projects Limited vs. M/s Vinod Kumar Jain and Ors. cited supra to the extent that past experience is required to be taken note of irrespective of individual or experience gained subsequently. Past experience is required to be taken note of with reference to Clause 2.2. It relates to the bidder (in case of sole bidder). Therefore, fourth respondent as a sole bidder does not fulfill the turnover INR 100 crore and so also experience. Further it is to be noted that as on the last date of submission of bid application, whatever experience gained by the respective bidders were to be taken into consideration, same could not be beyond the last date of submission of bid application for the purpose of gaining or considering the experience of a particular bidder. If the last date of submission of bid application is taken into consideration, the fourth respondent does not fulfill the experience criteria. Therefore, cited decisions namely New Horizon Ltd and M/s N.G. Projects Limited cited supra have no application or assisting the fourth respondent's eligibility criteria of experience as conten....
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.... it has been held that all errors of law are jurisdictional errors. One of the important principles laid down in the aforesaid judgment is that whenever a norm/benchmark is prescribed in the tender process in order to provide certainty that norm/standard should be clear. As stated above "certainty" is an important aspect of the rule of law. In Reliance Airport Developers [(2006) 10 SCC 1] the scoring system formed part of the evaluation process. The object of that system was to provide identification of factors, allocation of marks of each of the said factors and giving of marks at different stages. Objectivity was thus provided." Second respondent - Society in accepting tender of respondent No. 4 - Pashupatinath Distributors Private Limited has acted unfair and contrary to the norms which State institutions/organization should follow in such matters, namely, complying of Article 14 of the Constitution of India, transparency and fairness in the entire bid process. In other words, fairness in handling the contractual matters is in the public interest. Perusal of the records, it is evident that, there is no fairness on the part of the second respondent insofar as rejection of the p....