Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2020 Supreme(Del) 699

IN THE HIGH COURT OF DELHI AT NEW DELHI
Hima Kohli, Subramonium Prasad, JJ.
R.K. Jain & Sons Hospitality Pvt Ld - Appellant
Versus
Union Of India & Anr. - Respondent
Writ Petition (Civil) No. 3712 of 2020
Decided On : 29-06-2020

Advocates Appeared:
Manish Jain, Advocate, Sougata Ganguly, Advocate, Kirtiman Singh, Advocate, Digvijay Rai, Advocate

After participating in the tender process, a bidder cannot turn around and challenge the tender conditions.

Headnote:
TENDER CONDITIONS - JUDICIAL REVIEW - [FACT OF THE CASE] The petitioner challenged the conditions for technical bid evaluation in an e-tender notice issued by the respondent No.2/AAI, alleging that they were contrary to CVC guidelines and inserted to eliminate competition. The respondent argued that the conditions were part of the QCBS system and had been in vogue since 2013. The court considered the scope of judicial review in tender matters and upheld the conditions, stating that the petitioner cannot challenge the tender conditions after participating in the process. [FINDING OF THE COURT] The court found that the conditions imposed in the tender were not arbitrary, discriminatory, irrational, or manipulated to eliminate fair competition. [ISSUES] The issues involved the challenge to the additional conditions for technical bid evaluation and the scope of judicial review in tender matters. [RATIO DECIDENDI] The court held that after participating in the tender process, a bidder cannot turn around and challenge the tender conditions. The court also found that the conditions imposed in the tender were not arbitrary, discriminatory, irrational, or manipulated to eliminate fair competition. [FINAL DECISION] The petition was dismissed as meritless along with the pending application.

JUDGMENT

1. Cm APPL. 13299/2020 (Exemption)

Allowed, subject to all just exceptions.

W.P. (C) 3712/2020 and CM APPL. 13298/2020 (stay)

1. The instant writ petition is for issuance of a writ of mandamus for a declaration that Conditions No. 4 and 5 under Technical Bid Evaluation (Additional Eligibility) criteria in e-tender notice ID No. 2020- _AAI_048738_1 issued by the respondent No.2/AAI (in short, ''AAI'') inviting applications for providing environmental support services (upkeeping) are unjust, unreasonable, unconstitutional, and consequently, liable to be quashed.

2. The petitioner, a private limited company, is a registered contractor of the Govt. of Delhi. The petitioner states that it has participated in various bids floated by the respondent No. 2/AAI for different kind of works in various areas in Delhi and has also been awarded contracts by the respondent No.2/AAI for different kinds of work.

3. The petitioner states that the respondent No.2/AAI has brought out a notice inviting e-tender bearing tender ID No.2020_AAI_48378_1, calling the bidders to provide environmental support services (up-keeping) for the office complex at Rajiv Gandhi Bhawan SAP, New Delhi for Rs. 583.52 lakhs (Rs. 194.51 lakhs per annum) for a period of 3 years, extendable for further 1 year subject to satisfactory performance.

4. It is the contention of the petitioner that the criteria for technical bid evaluation prescribed in the NIT contains conditions which are not in conformity with the CVC guidelines dated 12.07.2002 and 07.04.2004. Conditions No.4 and 5 of the additional incorporated conditions in the e-tender which are under challenge, read as under:-

"4. During the technical evaluation stage, each bidder shall be assigned different marks out of a total of 100 marks, as per the criteria specified below:-

S.No.	Criteria	Max marks	Conditions & score	Remarks/documents for submission in technical bid folder
01	Firm turnover	20	a) if firm turnover >50 cr(20 marks) b) else if firm turnover more than 40 cr but up to 50 cr range (15 marks) c) else if firm turnover more than 30 cr. But up to 40 cr range(10 marks) d) else if firm turnover 20-30 cr range (05 marks) e) firm turnover <20cr(02 marks)	Firm turnover is defined as the average turnover from facility management services over the last 3 years. Charted Accountant verified/audited turnover statements to be furnished as proof for the same
02	Scale and Size of Operations	15	a) Single work of similar nature > 5 cr during awarded work duration-15 marks b) Single work of similar nature greater than 3.5 cr but up to 5 cr during awarded work duration-10 marks c) Single work of similar nature greater than 2 cr but up to 3.5 cr during awarded work duration- 05 marks d) Single work of similar nature equal to or lesser than 2 crores during awarded work duration-02 marks	Similar works mean- ESS/Mechanised cleaning of airport terminals, non-residential corporate office buildings/ Cyber city, MNC buildings, shopping malls/ complex, Five Star Hotels/ Corporate Hospitals/ metro rail premises etc. Client certificate for experience should show the nature of work done, the value of work, date of start, date of completion as per agreement/ status of ongoing work Level of satisfaction of client with work needs to be mentioned in the work experience certificate. Highest work value performed over the last 7 years of the single work will be considered for evaluation with min. Of 1 year of execution of contract completed (Ongoing works meeting above criteria will be considered)
03	No. of Projects

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2020 Supreme(Del) 699

IN THE HIGH COURT OF DELHI AT NEW DELHIHima Kohli, Subramonium Prasad, JJ.R.K. Jain & Sons Hospitality Pvt Ld - AppellantVersusUnion Of India & Anr. - RespondentWrit Petition (Civil) No. 3712 of 2020Decided On : 29-06-2020

After participating in the tender process, a bidder cannot turn around and challenge the tender conditions.

Cases Referred (4)

IN THE HIGH COURT OF DELHI AT NEW DELHI
Hima Kohli, Subramonium Prasad, JJ.
R.K. Jain & Sons Hospitality Pvt Ld - Appellant
Versus
Union Of India & Anr. - Respondent
Writ Petition (Civil) No. 3712 of 2020
Decided On : 29-06-2020