AHMEBADAR DURREZ D (J)

( 1 ) THE petitioner is a manufacturer of polythene Insulated Jelly Filled (PIJF) Cables. These PIJF Cables are required by the Respondent No. 1 Bharat Sanchar Nigam Limited (BSNL ). For this purpose BSNL, issues tenders on an annual basis. Those who bid for the tenders are, if they are found to be qualified and eligible, allocated shares in the tender quantity depending on their vendor ratings. The vendor ratings in turn are calculated on the basis of a formula depending upon, inter alia, the price rating, delivery rating and quality rating. In this petition we are concerned primarily with the delivery rating and the resultant effect on the vendor rating.

( 2 ) THE tender in question is the Tender No. NN/sw/032001/000220 which was issued on 27. 3. 2001 for the supply of PIJF Underground Cables. The notice inviting tender was also issued on 27. 3. 2001 wherein it was indicated that the tender quantity would be 441 LCKM and that the tenders would be opened on 22. 5. 2001 at 1200 hours. The petitioner as well as the respondent No. 4 NICCO Corporation Limited (NICCO), amongst others, bid for the tender quantity for supply of the said PIJF Cables. The petitioner as well as the respondent No. 4 were found to be qualified and eligible and accordingly were to be allocated their respective shares of the total tender quantity in terms of their respective vendor ratings. According to the petitioner the Delivery Rating of the respondent No. 4 (NICCO) was altered by the BSNL contrary to the terms of the tender and subsequent to the date of issue of the tender whereby the vendor rating of the petitioner was adversely affected. The petitioner who, if the change in the delivery rating of the respondent No. 4 was not made, would have been V-1 and, therefore, would have been eligible to supply 30% of the tender quantity, was relegated to the position of V-2 and accordingly the allocation of the petitioner was reduced. This, in short, is the grievance of the petitioner.

( 3 ) IN this context the petitioner has prayed that a writ of certiorari be issued quashing the Advance Purchase Orders issued on 11. 9. 2001 by the BSNL to NICCO. The petitioner has also prayed for a writ of mandamus commanding the BSNL to issue fresh Advance Purchase Orders in terms of the Vendor Rating as on 22. 5. 2001, i. e. the date of opening of the tender, to the petitioner. The petitioner has also prayed for a writ of certiorari quashing the Revised Delivery Rating of the respondent No. 4 (NICCO) as set out in the Internal office Memo dated 27. 2. 2001.

( 4 ) THUS, this petition is to be decided on the simple issue as to whether it was permissible for the BSNL, under the Tender Conditions, to alter the Delivery Rating of the tenderers after the date of opening of the tender, i. e. 22. 5. 2001 and, if so, to what extent? In order to arrive at an answer, it would be necessary to refer to certain Clauses of the Special Conditions of Contract pertaining to the tender in question. We need to note Clauses 13 (i), 13 (ii), Clause 19, 19. 3. 8 and Clause 22 (d ). The aforesaid Clauses are set out hereinbelow:- "13 (i) the purchaser intends to limit the number of bidders selected for ordering against this tender to 2/3rd of the participating and eligible bidders in each group (eligible as per clause 2 of section II of the Bid Documents ). The bidders for placement of order will be selected from the list of technically and commercially responsive bidders arranged in decreasing order of the Vendor Rating starting from the highest. Any fraction below 0. 5 in the number of vendors, as computed above shall be ignored and the same equal and above 0. 5 will be rounded off to the next higher integer. 13 (ii) the bidder with the highest Vendor Rating (V-I bidder) will be considered for about 30% of his tendered quantity. The balance quantity will be distributed amongst the remaining selected bidders in each group in direct ratio of their Vendor Rating. " "19. All t

Click Here to Read the rest of this document