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High Court of Delhi
BADAR DURREZ AHMED & VIBHU BAKHRU, JJ.
Rohde & Schwarz Gmbh & Co. KG
Versus
Airport Authority of India & Another
W.P. (C) No. 6547 of 2013 & CM No. 14245 of 2013
Decided On : 01-11-2013
Tender Eligibility - Experience Criteria - NIT Clauses 4.1, 4.1.1, 4.3 - The court discussed the eligibility criteria for a tender, specifically focusing on the experience criteria specified in NIT Clauses 4.1, 4.1.1, and 4.3. It highlighted the petitioner's reliance on the experience of its subsidiary to meet the specified criteria and the respondent's rejection of the bid based on the interpretation of the experience requirement.
Fact of the Case:
The petitioner sought to quash the rejection of its bid for a tender due to the controversy over whether it could claim the experience of its subsidiary as its own to meet the eligibility criteria for the tender.
Finding of the Court:
The court found that the rejection of the petitioner's bid was justified as the experience of the subsidiary could not be considered as the experience of the petitioner for meeting the tender's eligibility criteria.
Issues: The main issue was whether the petitioner could rely on the experience of its subsidiary to meet the eligibility criteria for the tender.
Ratio Decidendi: The court held that the experience of the subsidiary could not be counted as the experience of the petitioner for the purpose of meeting the tender's eligibility criteria.
Final Decision: The court dismissed the petition and the pending application, leaving the parties to bear their own costs.
Vibhu Bakhru, J.
1. The present petition has been filed by the petitioner praying for quashing the communication dated 06.09.2013 issued by the respondent No.1 rejecting the Pre Qualification Qualifier bid of the petitioner.
2. The petitioner, Rohde & Schwarz GmbH & Co. KG is an independent company specializing in electronics having its headquarter in Muehldorfstrasse 15, 81671 Munich, Germany.
3. The controversy involved in the present petition is whether the petitioner is entitled to claim the experience of its subsidiary as its own for the purposes of meeting the specified eligibility criteria for participating in the tender for installation, testing and commissioning of Voice Communication System at Delhi and Kolkata Airports.
4. The Executive Director (CNS-Planning), Airport Authority of India (respondent no. 2 herein) issued a Notice inviting tenders on 11.03.2013 being Tender No. (CNS-P)-05/2012-13 (hereinafter referred to as ‘NIT’) on behalf of the Chairman, Airports Authority of India (AAI) for Supply, Installation, Testing and Commissioning of Voice Communication System at Delhi and Kolkata Airports at an estimated cost of Rs.22.21 Crores. The last date for submitting the documents by the bidders was 22.05.2013
5. The NIT specified the criteria for eligibility of bidders. Clause 4.1 of the NIT specified that the bidders should be Original Equipment Manufacturer (OEM) or authorized representatives of the OEM or system integrators. It was further specified that in case of a bid submitted by the authorized representative of an OEM, only the credentials of the bidder i.e. the Authorized Agent would be considered for evaluating whether the eligibility criteria as specified was satisfied. In case of an authorized representative a current authorization from the OEM authorizing the bidder to act as its authorized representative for the tender was required to be submitted. In order to be eligible for the tender, a bidder was also required to have an annualized average financial turnover of at least Rs.6.66 Crores or equivalent during the last three financial years as per practice prevailing in the country of the bidder. And, the Balance sheet along with profit and loss account of the bidder for the last three years was required to be submitted as a proof of financial turnover.
6. The NIT also provided for a criteria of past experience and an eligible bidder was required to have the requisite past experience in Supply, Installation, Testing & Commissioning (SITC) of Voice Communication and Control System (VCCS) (TDM or IP Based). Clause 4.3 of the NIT provided for six criteria relating to past experience and the bidder was required to meet at least one of the said six criteria. Clauses 4.1, 4.1.1 and 4.3 of the NIT are relevant and are quoted below:-
“4.1 The bidder should be Original Equipment Manufacturer (OEM) or its authorized representative or System Integrator (SI).
4.1.1 In the case of authorized representative of OEM, credentials (financial turnover & experience as mentioned below) of bidder only will be considered for evaluating eligibility criteria.
xxxx xxxx xxxx xxxx
4.3 Experience:
4.3.1 The bidder should have successfully executed Supply, Installation, Testing and Commissioning (SITC) of Voice Communication and Control system (VCCS) (TDM or IP Based) and meeting any one of the following six criteria during last seven years.
a1. One order of value not less than Rs.17.77 crores for SITC of VCCS (TDM or IP Based) at any Airport.
a2. Two orders each of value not less than Rs.11.11 crores for SITC of VCCS (TDM or IP Based) at Airports.
a3. Three orders each of value not less than Rs.8.88 crores for SITC of VCCS (TDM or IP Based) at Airports.
a4. One order for the SITC of VCCS (IP Based) having not less than 30 number of controller working positions.
a5. Two orders each for the SITC of VCCS (IP Based) having not less than 20 number of Controller working positions.
a6. Three orders each for the SITC of
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