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2019 Supreme(Cal) 718
IN THE HIGH COURT AT CALCUTTA
Debangsu Basak, J.
R-MC Power Recovery (India) Pvt. Ltd. & Anr. - Appellant
Vs.
Union of India & Ors. - Respondent
W.P. No. 7093(W) of 2018
Decided On : 27-03-2019
For the Appellant :Mr. Jishnu Saha, Sr. Advocate, Mr. Anuj Singh, Mr. E. Huda, Mr. Avishek Das, Mr. Ritoban Sarkar, Mr. A.K. Singh, Advs.
For the Union of India : Mr. Kausik Chanda, Ld. A.S.G. Mr. Anirban Mitra, Mr. Indrajit Dasgupta, Advs.
The central legal point established in the judgment is that a participant in a tender process must possess the requisite qualification as prescribed by the applicable regulations, and failure to meet such qualification would disqualify the participant from participating in the tender process.
Headnote:
Registration - Participation in Tender Process - Defence Procurement Manual, 2009 - Clause 9.3 - Limited Tender Enquiry - Foreign Original Equipment Manufacturers and Vendors
Fact of the Case:
The petitioners sought direction to participate in a tender for supply of non-arsenal spares for Jaguar aircraft. The first petitioner applied for registration with the Director General of Aeronautical Quality Assurance, but the authorities did not decide on the application within the stipulated 90 days. Despite quoting lower rates and being allowed to participate in similar tender processes, no work order was issued in their favor.
Finding of the Court:
The court found that the first petitioner, being an Indian vendor, did not qualify for registration as per Clause 9.3 of the Defence Procurement Manual, 2009, which limited registration to foreign original equipment manufacturers and vendors. The court dismissed the writ petition, vacated interim orders, and held that the first petitioner did not possess the qualification required to participate in the tender process.
Issues: The main issue was whether the first petitioner, as an Indian vendor, was entitled to participate in the tender process for foreign origin spares, despite not being registered as a foreign original equipment manufacturer or vendor.
Ratio Decidendi: The court held that a person must possess the qualification prescribed to participate in the tender process, and in this case, the Defence Procurement Manual, 2009 limited registration to foreign original equipment manufacturers and vendors only.
Final Decision: The writ petition was dismissed, and interim orders were vacated, with no order as to costs.
JUDGMENT :
Debangsu Basak, J.
1. The petitioners have sought a direction upon the respondents to allow the first petitioner to participate in the bid in respect of tender for supply of non-arsenal (NARS) Spares for Jaguar aircraft being (RFP) No. AIRHQ/CPF/243/AHQ/JAGUAR/W1725041 dated March 12, 2018.
2. Learned senior advocate appearing for the petitioners has submitted that, the first petitioner is engaged in the business of providing repair and maintenance services, ground support equipment and also in supply of spares and consumables to the air force. The first petitioner is registered with the Hindustan Aeronautics Limited. He has referred to the various registrations of various categories that the first petitioner has with Hindustan Aeronautics Limited. He has submitted that, the first petitioner is registered with the Naval Aircraft Yard, Kochi. He has also referred to the list of supplies made by the first petitioner to various defence organisations appearing at page 48 of the affidavit in reply. He has drawn the attention of the Court to the vendor login issued by Indian Air Force in favour of the first petitioner. He has submitted that, the first petitioner had applied for registration with the Director General of Aeronautical Quality Assurance on March 27, 2017. The making of such an application and the decision thereon is governed by the Standard Operating Procedure. Clause 23 of the Standard Operating Procedure requires the authorities to decide on the application within 90 days. The authorities did not decide on such registration. The petitioners had issued two reminders to the authorities. Even thereafter, the authorities did not decide on the application for registration. Referring to the letter dated January 6, 2018 issued by the authorities, learned senior advocate appearing for the petitioners has submitted that, the authorities claim that, the application for registration is under further deliberation. In effect, the authorities have not decided on the same. He has referred to page 50 of the writ petitioner and submitted that, the first petitioner has a certificate issued by the foreign manufacturer. He has referred to the orders passed by the High Court at Delhi as also the order of the Division Bench of this Hon’ble Court with regard to the petitioners being allowed to participate in similar tender processes. He has submitted that, the petitioners have always quoted less than the rates quoted by the other participants in the tender processes and that, the rate quoted by the petitioners is about 38% less than the last quoted rate of other participants. However, despite the Division Bench allowing the petitioners to participate in such tender process, and despite the petitioner quoting a rate which is less than 38% of the last rate quoted by other participants, no work order has been issued in favour of the petitioners, in respect of such tender process.
3. Learned senior advocate appearing for the petitioners has referred to the Request for Proposal dated March 12, 2018 issued by the Directorate of Procurement Foreign Purchase wing of the Air force and submitted that, the petitioners are capable of supplying the goods listed in Appendix A of the Request for Proposal dated March 12, 2018. He has referred to the General Information’s contained in Part I of the Request for Proposal and submitted that, the Request for Proposal requires participants to submit the bids online. It requires a participant to disclose amongst other things, an Agency Agreement with Foreign Manufacturer/ Original Equipment Manufacturer (OEM) for specific product. It also requires a participant to upload the Permanent Account Number, CST/VAT/TIN/Registration. He has submitted that, the Request for Proposal makes Defence Procurement Manual, 2009 applicable to the tender process. He has referred to clause 1.5.2 of the Defence Procurement Manual, 2009. Under such clause, internal orders and instructions, including Standard Operating Procedure
