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2020 Supreme(Cal) 403
IN THE HIGH COURT OF CALCUTTA
Sabyasachi Bhattacharyya, J.
Sanjay Kumar - Appellant
Versus
Union Of India And Others - Respondents
Writ Petition No. 3025 of 2020
Decided On : 11-06-2020
Dipankar Das, Advocate, Ashish Shah, Advocate, Aindrila De, Advocate, Saptangshu Basu, Advocate, Tapasi Sinha Palit, Advocate
The judgment emphasizes the limited scope of judicial review in tender matters and the need for transparency and fairness in the tender process.
Headnote:
Tender Dispute - Indian Oil Corporation Ltd. - Procurement as per Public Procurement Policy for Micro and Small Enterprises (MSEs) Order 2012 (Policy) - 15% (fifteen percent) & 7.5% (Seven and a half percent) for Scheduled Castes and Scheduled Tribes - [Clause 14, Clause 15, Clause 18] - The court analyzed the reservation percentages, the calculation on reservation of trucks, and the Corrigendum to determine the legality and fairness of the tender process. The judgment emphasized the limited scope of judicial review in tender matters and the need for transparency and fairness in the tender process.
Fact of the Case:
The petitioner challenged the allocation of trucks in a tender process, alleging illegal and arbitrary action favoring certain bidders and depriving others from participating transparently. The respondent argued that the petitioner had the opportunity to seek clarification before the bidding process but chose not to, thus waiving the right to challenge the process post facto.
Finding of the Court:
The court found that the petitioner's failure to seek clarification before the bidding process barred them from challenging the tender process later. The court emphasized the importance of transparency and fairness in tender processes and upheld the legality of the tender process.
Issues: The issues revolved around the legality and fairness of the tender process, the calculation of reservation percentages, and the petitioner's right to challenge the process after failing to seek clarification before bidding.
Ratio Decidendi: The court held that the petitioner's failure to seek clarification before the bidding process precluded them from challenging the tender process later. The judgment emphasized the limited scope of judicial review in tender matters and the need for transparency and fairness in the tender process.
Final Decision: The writ petition was dismissed without costs, and the court upheld the legality and fairness of the tender process.
JUDGMENT
Sabyasachi Bhattacharyya, J. - The present dispute arises from a tender floated by the Respondent No. 2, namely the Indian Oil Corporation Ltd. (Marketing Division), for transportation of Indane LPG Cylinders in vertical position on unit rate basis Ex-Patna LPG Bottling Plant under Bihar State Office.
2. The petitioner was a prospective bidder under the general category (as opposed to the reserved categories) in E-Tender No. RCC/ERO/37/2019-20/PT-189 dated January 22, 2020. His principal grievance is that more trucks were allocated for the reserved categories than indicated in the relevant clauses of the Notice Inviting Tender (NIT), in particular clauses 14, 15 and 18a under the fifth heading (Tender Evaluation Criteria) of the NIT, thereby curtailing the number of trucks allocated to the general (non-MSE and non-SC/ST) candidates under both categories of trucks (that is, 342 cylinder and 525 cylinder trucks respectively). Such discrepancy is evident, according to the petitioner, from the chart showing calculation on reservation of trucks, as given in Annexure W8 to the NIT.
3. The petitioner alleges that such action of the Respondent No. 2 was illegal and arbitrary with a view to favour particular classes of bidders and deprive others from participating in the e-tender process through a transparent mechanism.
4. From Annexure W8 to the NIT, it appears that the transporter tender requirement was fixed at 75 trucks under the 342 Category' and 131 trucks under the 525 Category'. The number of trucks reserved for the SC and ST categories, however, for the 342 Category' were 23 and 16 respectively and for the 525 Category' were 39 and 29 respectively, ultimately leaving only 6 and 4 trucks available under the said categories respectively for general non-MSE bidders. According to the petitioner, the numbers so allotted to SCs and STs (Schedule Castes and Scheduled Tribes respectively) much exceeded the reservation percentages of 15 (fifteen) and 7.5 (seven and a half) for SCs and STs, as enumerated in clause 15 at internal page 24 of the Technical Bid part of the NIT. Even the numbers reserved for the MSE (Micro and Small Enterprises) categories as stipulated in Clause 14 of the Technical Evaluation Criteria of the NIT, that is, 25 % (including 4% for MSEs owned by SC or ST entrepreneurs and 3% for MSEs owned by women), was exceeded, by allocating 30 and 59 trucks respectively for the 342 and 525 Category trucks, including 5 and 9 respectively for the MSE (SC/ST) and 4 and 7 trucks respectively for the MSE (Women).
5. Thus, the petitioner seeks fresh bidding, after proper recalculation of the numbers allotted to the various categories in accordance with the NIT, and a direction on the Respondent No. 2 in particular, not to take any further steps on the e-Tender Notice No. RCC/ERO/37/2019-20/PT-189 dated January 22, 2020.
6. In answer, the respondent nos. 2 and 3 used an affidavit-in-opposition and a supplementary affidavit thereto, pointing out inter alia that all prospective bidders were invited to a Pre-Bid Meeting dated February 3, 2020, in which all queries from the prospective bidders were answered and clarified, including those raised in the present writ petition. Such contention would, according to the respondent nos. 2 and 3, be evident from the portal of the respondent no. 2, where notice was put up duly for the said Pre-Bid Meeting and its summary was uploaded as well. The petitioner chose to abstain from attending the said Pre-Bid Meeting and accepted all terms by failing to put up any query or doubt either on the portal or in the said meeting, despite having sufficient opportunity to do so, thereby losing his chance to challenge the same post facto. The clarifications made in the Pre-Bid Meeting and a Corrigendum of the original NIT were duly uploaded, prior to commencement of the bidding process, on the portal of respondent no. 2, printouts of which are annexed to the affidavit-in-opposition of the respondent
