The court emphasized the necessity and consistency of the clauses with the project's purpose, and the failure of the petitioner to prove the exclusion of other domestic companies.

JUDGMENT

Sabyasachi Bhattacharyya, J. - The writ petitions have been filed by the petitioner challenging two separate Notices Inviting Tender (NIT) bearing No. IRCON/2053/TN/SHM/Lift/2019/72 in W.P. No.10 of 2020 and No. IRCON/2052/TN/SRC/Lift/2019/73 in W.P. No.11 of 2020 respectively.

2. By virtue of the said notices, published on December 17, 2019, the IRCON, that is, the respondent no.2, invited bids pertaining to installation of lifts and escalators at Shalimar (W.P. No. 10 of 2020) and Santragachi (W.P. No. 11 of 2020) railway stations and buildings respectively.

3. The primary argument of the petitioner is that the said tenders were floated to favour only a certain manufacturer and/or a group of manufacturers and to outcast all other eligible bidders.

4. The tenders, as initially published, contained a condition which restricted those to only a particular list of makes/brands. Upon the petitioner making a representation on December 18, 2020, challenging the insertion of specific brands in the tenders, the respondent no. 2 published a Corrigendum on January 4, 2020 which deleted the stipulation as to particular brands but, according to the petitioner, introduced further criteria which ensured that only the deleted brands could qualify.

5. Upon the writ petitions being filed challenging such clauses, in particular clauses 7 and 8, it transpired during hearing that the clause 1 also contained restrictions that could be interpreted to apply only to domestic contractors and not international ones, thereby denying a level playing field to the domestic contractors.

6. During pendency of the writ petitions, as per submissions of the learned senior counsel of the respondent no. 2 in court, the expression "domestic" was removed, thereby obviating the applicability of the said restriction only to domestic contractors but made the same universally applicable to all contractors participating in the tender processes.

7. The primary contention of the petitioner, while challenging clauses 7 and 8 of the respective tenders, is that according to the said clauses, the bidder should have manufactured, supplied and commissioned successfully at least 50 escalators of a particular type in certain particular places such as railway/metro rail/airports/stadiums/public road/monorail/high speed rail/Mass Rapid Transport Systems etc., of the government during the last seven years (ending last day of the month previous to the one in which the tenders were invited). Clause 8 applied a similar restriction regarding having commissioned at least 500 lifts in similar places as mentioned in clause 7.

8. Learned counsel for the petitioner argues that since the participation was restricted to the requisite number of escalators and elevators being installed mostly in railways and similar government buildings, the said tenders automatically excluded numerous other contractors, who might otherwise have experience in installing the requisite or more number of escalators and elevators in other public places which have a large number of footfalls and take heavy loads, such as big shopping malls, other government buildings etc.

9. It is submitted on behalf of the petitioner that the respondent no. 2 has adopted an approach by which it will be ensured that only the brands which were deleted would be able to qualify. Thus, what could not be directly achieved by specifying the brands, was sought to be achieved indirectly by making the clauses restrictive to such an extent that only the previously named brands would be able to participate.

10. Although the petitioner otherwise meets the experience requirements both as per the original tender documents as well as the last Corrigendum, that is, the petitioner has the requisite numbers and types of installations, due to the arbitrary restriction of the places of installation, the petitioner did not have any opportunity to participate in the tenders. Such insistence, if allowed to continue, would perpetuate a situation whe