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High Court Of Delhi
PAHARPUR COOLING TOWERS LIMITED - Appellant
Versus
BANBAIGAON REFINERY AND PETROCHEMICALS LIMITED - Respondent
Civil Writ 4653 of 1993
Decided On : 01/07/1994
2. Administrative Law — State instrumentality involved in commercial transactions — Preference should be given to public Sector undertakings but essential conditions may not be relaxed.
Petitioners grievance was that first respondent a public sector company, had awarded a contract for construction of a cooling tower and cooling water treatment plant to second respondent also a public sector company, even though 2nd respondent did not have the minimum experience required under Notice Inviting Tender. Respondents argued, the term "tendered" includes collaborator and experience of collaborator would count as that of tendered as well.
Allowing the petition, the Court.
Held:
1. The word "tendered" is not a word of art. It is a word of common parlance. This expression would mean the experienie of the tendered itself and not that of its collaborator.
The words "tendered should possess" have to be given their ordinary meaning. NIT talks of the experience of the tendered himself and not of its capacity or capability to get the work performed through other agencies howsoever that third agency might be competent. We cannot be asked to read into a document words which are not there, nor the court can be asked to re-write a document or a contract. The language of the NIT is clear and unambiguous. We are not at all impressed with the argument that the word "possess" in the present cantext must be construed to mean "availability of experience with the tendered to execute the contract".
2. There could be deviations from the strict terms of the tender while, of course, there is no prejudice involved. The court does not sit as an appellate body looking into the entirety of the tender process. The scope, ambit, nature and degree of judicial review in a tender case is limited leaving substantial area or "play in the joint" as the term goes. Understanding of those who operate the tender is to be given due weight. But when the NIT required that "tendered should possess" it could not mean that its collaborator, if any, should possess or that the tendered should be capable of getting the work executed from any third party possessing that experience. And when NIT permitted a collaborator it has said so in clear terms but not in the present NIT.
3. Respondents could not relax the essential conditions of NIT on the plea of public interest.
When a public sector undertaking, an instrumentality of State, seeks preferential treatment, in all fairness and propriety it should not have proceeded with work which of course it did at its own risk and costs. When a decision or an action is wrong it cannot be righted by presenting a fait accompli.
( 1 ) THE first petitioner, a public limited company, and second petitioner, its share-holder, have filed this petition challenging the action of the respondents 1 and 3, rather of the first respondent, in awarding the contract for the construction of cooling tower and cooling water treatment plant of the first respondent to the second respondent. The contract was awarded after notice inviting lender (NIT) had been is. ,ucd and evaluation of different bids, first of technical and then of financial, done. First petitioner claims to be engaged in the business of manufacturing, erecting, and commissioning of cooling towers and cooling water treatment plants.
( 2 ) THE respondents number five. First respondent Bangaigaon Refinery and Petrochemicals Limited (BRPL) which required the construction of works in question is a public sector company; the second respondent Bridge and Roof Company (India) Limited (Bandr) to whom the contract was awarded is also a public sector company; so is the third respondent Engineers India Limited (EIL) who acted as a consultant of the first respondent and acted for and on its behalf for issuing NIT and then processing the bids and making the recommendation to award the contract to the Bandr, the second respondent; fourth respondent is the Senior Manager (Contracts) of EIL and the fifth is the Union of India through the Secretary, Ministry of Petroleum. For the purpose of decision of this petition the respondents would be first, second and third, i. e. , BRPL, Bandr and EIL.
( 3 ) SINCE a great deal of arguments have been addressed on the interpretation of NIT we may as well reproduce the same, in relevant parts:
1. Name of work Design. Supply, Erection, Testing, and Commissioning of Cooling Tower and Cooling Water Treatment Plant package.
2 The tenderers who intend to participate shall meet the following minimum reqirements and only such tenderers shall be considered for pro-qualification for the tender. The tenderers who are not meeting the following requirements, NEED NOT PURCHASE the tender document. 1. The tenderer should possess experience in successful execution on turnkey basis of at least one Cooling Tower and Cooling Water Treatment Plan of value not less than Rs-80,00 lakhs (Rupees Eighty lakh only) during last 5 (five) years including detail Engineering, Supply, Erection, Installation, Testing and Commissioning. 2. The Annual Turnover of the tenderers shall be more than Rs. 160 lacs in any one of the last three years (financial year 1989-90, 1990-91,1991-92 ). The intending tenderers as a pre-requisite must produce documentary evidence of aforesaid account and shall submit copies of Letter of Intent of works awarded, Completion Certificates, Latest Income Tax Clearance Certificates, Concurrent Commitments. Audited Balance Sheets and Profit and Loss Account Statements for last 3 years along with Techno-commercial part (i. e. Part-I) of their offer, as mentioned in the Tender Document. Submission of tenders shall be done by the Tenderers as per instructions contained in the Special Conditions of Contract of the Tender Document. Part-I and II of tender, i. e. TECHNO-COMMERCIAL (Part-I) and priced part containing only Price/rates (Part-II) in separate envelope will be received on or before 10. 1. 1993 upto 2. 00 PM in the office of ENGINEERS INDIA LIMITED, HINDUSTAN TIMES HOUSE, 4th FLOOR RECEPTION, 18-20 KASTURBA GANDHI MARG, NEW DELHI-110001 (Attn. Sr. Manager (Contracts ). Techno-Commercial part i. e. Part- I of the tender will be opened on the same day at 3. 00 PM in the presence of Tenderer s or their accredited represcntative (s ). Time, date and place of opening of Part-II (Price Part) of the tender shall be intimated only to technically acceptable tenderers pro-qualified for the work at a later date. BRPL/eil takes no responsibility for delay, loss or non receipt of tender document sent by pot. FAX/telex/telegraphics offers will not be accepted. BRPL/eil reserve the ri
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