Back
1999 Supreme(Del) 763
High Court Of Delhi
L.G.INFORMATION AND COMMUNICATIONS LIMITED - Appellant
Versus
MAHANAGAR TELEPHONE NIGAM LIMITED - Respondent
Civil Writ 724 of 1999
Decided On : 09/17/1999
ARUN JAITLEY, C.S.VAIDYANATHAN, KAPIL SIBAL, Manmohan, MUKUL ROHTAGI, P.K.BAKSHI, RAJIV NAYAR, RAVI SIKRI, SANDiP SETHI
Headnote:Tender Bid - Challenge to grunt of contract by lowest bidder — Difference of opinion between the finding of Tender Valuation Committee and CMD — Grant of contract to a bidder who did not meet the essential qualification — Award of contract set aside with liberty to take fresh steps in accordance with law:
Held:
The other condition is laid down in Clause 3 wherein it is clearly stated that the bidders should have supplied alleast 1,00,000 lines of WILL of COMA IS-95 Technology. They shall provide credentials in support of their technical capabilities, financial strength and commitment to their customers in this regard. Those who did not fulfill the above requirements were not required to be considered. The Tender Evaluation Committee on the above basis quite correctly stated that the requisites as required by the lender conditions have not been fulfillled and held the bid of respondent No. 2 as not responsive. Clause 24 which deals with clarification of bids does not imply that in case the bidder has not submitted all the relevant documents, he will be granted another opportunity to submit the same at a subsequent stage particularly when the last date for submission of bids has expired. The clarification as envisaged by Clause 24 will only imply that if there is any doubt which will be necessary for examination, evaluation and comparison of bids the purchaser may ask for clarification its bid otherwise the sanctity of submission of application till a certain date and opening of bids on particular date will be entirely lost.
In view of the above reasons, the award of contract in favor of respondent No. 2 is set aside. The question now arises as to whether the tender of the petitioners can be accepted and they may be granted the contract. The petitioner No. 1 is not the lowest tenderer and in view of the facts and circumstances of the case particularly when there is difference of opinion between the findings of the Tender Evaluation Committee andCMD it will be appropriate that respondent No. 1 is granted liberty to take fresh steps in accordance with law for award of contract as may be deemed fit and proper.
( 1 ) THIS petition has been filed for issuance of a writ of certiorari for quashing the Letting of Intent dated June 3, 1999 issued by respondent No. 1 in favour of respondent No. 2 in pursuance to Tender No. MTNL 20-80 (235)/98-MM dated 30. 6. 98 and a further relief is sought in the nature of mandamus commanding and requiring respondent No. 1 to award the above said contract in favour of petitioner No. 1.
( 2 ) PETITIONER No. 1 is stated to be company incorporated in Republic of Korea. It is engaged in the business inter-alia of telecommunications and information technology and having an annual turnover of over US $2 billion. The company is part of large business multi-national conglomerate known as LG Group with annual world-wide turnover exceeding US$ 100 billion. Petitioner No. 2 is a company stated to be incorporated in India and is part of the Escorts group of companies. Petitioners 1 and 2 have agreement to jointly do business in India in the field of telecommunications, such as, bidding and execution of contract in question. Respondent No. 1 is referred to as Government company having monopoly in the filed of telecommunication services in India. It is performing sovereign function which the Government would otherwise do and is a "state" within the meaning of Article 12 of the Constitution of India. The relevant facts are referred to in the following paragraphs of the writ petition which may be reproduced as below:
"1. The respondent No. 1-MTNL invited bids on turn-key basis for supply etc. Of Wireless in Local Loop System (WILL) CDMA, IS- 95a Technology. The system was designed to initially cater for 50,000 subscribers.
2. The NIT as amended from time to time prescribes certain essential and fundamental eligibility conditions for a bidder, without the compliance whereof his bid would not be responsive and liable to be rejected out right. The essential requirements are as follows:
I) The bidder must have two years standing as manufacturers and supplier of the subject goods.
II) The bidder should have supplied at least 1,00,000 lines of WILL of CDMA, IS-95a Technology. The bidder must furnish as part of his documents proof of complying with the aforesaid eligibility.
III) The bidder must enclose with the bid documents certificate of satisfactory performance of the contract from at least three major customers. "
( 3 ) COPY of the Notice Inviting Tender dated 30th June, 1998 is filed as Annexure P/1 to the writ petition and the same reads as follows: "notice INVITING TENDER (WIRELESS IN LOCAL LOOP)
TENDER No. MTNL/20-80 (235)/98-MM Dated 30. 6. 1998
SEALED global tender bids in two parts, (Techno-commercial and financial) are invited from reputed manufacturers or suppliers of WILL CDMA IS-95-A technology with atleast two years standing and adequate financial strength on turn-key basis to carry out survey, design, supply of equipment, install, test commission and make over the systems to MTNL. Subsequent annual maintenance support shall also come within the scope of this tender. They shall provide credentials in support of their technical capabilities, financial strength and commitment to their customers.
THE system shall be designed initially to cater for 50,000 (fifty thousand) for Mumbai and capable of expansion. Details of expected lines in the following years are available in the tender document. 1. Date of issue of Tender 30. 6. 1998 2. Sale of Tender Document from 8. 7. 1998 to 23. 7. 1998 3. Period for request of clarifications upto 24. 7. 1998 at 11:00 hrs. 4. Pre-Bid Conference (vendors Meet) at Conference Hall, 12th Floor, MTNL, Jeevan Bharti Bldg. On 24. 7. 1998 at 11:30 hrs. 5. Date and time for submission of bids 25. 8. 1998 by 12. 30 hrs. 6. Date and Time for opening the bids (Techno-Commercial) 25. 8. 1998 at 13:00 hrs. Address for purchase and submission of Tender Document Dy. General Manager (MM-II), Mahanagar Telephone Nigam Ltd. , Corporate Office, Room No. 1302 Jeevan Bharti Building, Conna
