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IN THE HIGH COURT OF DELHI AT NEW DELHI
Manoj Kumar Ohri, Poonam A. Bamba, JJ.
S.H. Khan and Co. – Petitioner
Vs.
Government of NCT of Delhi and Another – Respondents
W.P. (C) Nos. 9454, 9457 of 2022
Decided On : 10-06-2022
Societies Registration Act, 1860 - Constitution of India, 1950 - Articles 12, 14, 19, 21 and 226 - Sought quashing/stay of Notice Inviting Tenders - Extension of Work Order - Orders for Operation, Management and Maintenance of JSCs - Seeking review of conditions of a tender floated by DUSIB, wherein financial eligibility criteria are stated to have been linked to estimated cost of work. Petitioners’ grievance is that eligibility criteria imposed by tender, unlike previous tenders issued by DUSIB, have effect of restraining consortiums/joint venture of agencies from participating and increasing estimated cost of work, thereby creating a monopoly of limited class of persons and ousting small players from competition - This Court under writ jurisdiction unless found adverse to public interest, and finding nothing on record to show that impugned conditions are detrimental to public interest, second issue is also decided against the petitioners. (Para 26)
Finding of the court :
Court opinion that respondent has good reason for exclusion of consortiums/joint venture of agencies from participation and impugned conditions in NITs are neither arbitrary nor actuated by mala fide. Besides, in view of the decisions cited hereinabove, it is prerogative of respondent(s) to design tender conditions as per requirements - It is observed that the tenders in question are for operation, management and maintenance of JSCs, i.e. common toilet facilities, in JJ clusters/slum bastis in Delhi. The project by its nature is for welfare of the people. As noted earlier, scope of work has increased and the respondent(s) have stated that it would be more efficient for authorities to collaborate with single players/agencies instead of multiple members in a consortium/joint venture. Needless to state, petitioners cannot claim as a matter of right that they should be allowed to participate in the tender process as a consortium/joint venture of agencies.
Result: Petitions dismissed.
JUDGMENT :
Manoj Kumar Ohri, J.
CM. Appl. No. 28237/2022 (Exemption) in W.P. (C) No. 9454/2022
CM. Appl. No. 28242/2022 (Exemption) in W.P. (C) No. 9457/2022
1. Allowed, subject to all just exceptions.
2. The applications are disposed of.
W.P. (C) 9454/2022 & CM. Appl. No. 28236/2022 (Stay) W.P. (C) 9457/2022 & CM. Appl. No. 28241/2022 (Stay)
1. By way of the present petitions filed under Article 226 of the Constitution of India, the petitioners have sought quashing/stay of the Notice Inviting Tenders (hereinafter, referred to as the “NITs”) dated 26.05.2022 and 27.05.2022 issued by respondent No. 2 vide NITs No. 02/EE, C-3/DUSIB/2022-23 & 03/EE, C-3/DUSIB/2022-23. The petitioners in W.P. (C) No. 9454/2022 have also prayed for extension of Work Order Nos.WF/4761/1/2022/D-497, AL-64/EEC-4/DUSIB/2021022/D-640, AL-64/EEC-4/DUSIB/2021022/D-648, AL 64/EEC-4/DUSIB/2021022/D-650 & AL-64/EEC-4/DUSIB/2021022/D-649 to them for operation, management and maintenance of Jan Suvidha Complexes (hereinafter, referred to as the “JSCs”) for two years.
2. The facts, as emanate from the pleadings, are that the petitioners-M/s S.H. Khan & Co.& Ors. in W.P. (C) 9454/2022 are Societies registered under the Societies Registration Act, 1860 and the petitioner-ALERT DÉCOR in W.P. (C) 9457/2022 is a Firm engaged in providing security and sanitisation services including in the NCT of Delhi.
The petitioners claim to have earlier been awarded various tenders/work orders for Operation, Management and Maintenance of JSCs. The eligibility criteria mentioned in the aforesaid NITs dated 26.05.2022 and 27.05.2022 are on the same lines. For the sake of brevity, relevant extract only from NIT dated 26.05.2022 is reproduced hereunder:-
GOVT. OF NCT OF DELHI
OFFICE OF EXECUTIVE ENGINEER, C-3
2nd Floor, Circle Office Building opposite Shivaji College, Raja Garden,
New Delhi-110027.
Ph-011-
NOTICE INVITING TENDER
NIT No. 02/EE,C-3/DUSIB/2022-23
Dated: 26.05.2022
The Executive Engineer, C-3, DUSIB for and on behalf of DUSIB invites Item Ratee-tender in two envelopes/two bid system (both bids to be uploaded simultaneously),from the registered & eligible NGOs, proprietorship/partnership firms, companies registered under Companies Act, who essentially fulfill requisite "Eligibility Criteria", for the under mentioned work. The applicants need to be essentially registered on Delhi Govt. e-procurement system (https://govtprocurement.delhi.gov.in) also to participate in the e-tender for the said work. The enlistment/registration of the intending bidders/tenderers must be valid on the last date of closing of the e-tender/bid one-procurement system.
However, Blacklisted and/or debarred bidders in any deptt./institution, shall not be eligible to participate in e-tender for this work.
The Consortium/Joint Venture of agencies is also not allowed to participate in the tender for this work.
Eligibility Criteria:-
Besides registration of agencies/bidders in concerned department as well as Delhi Govt. e-procurement system, those bidders who fulfill the following criteria, shall only be eligible for participation in the tender for said work:-
(A) Experience:- Experience of having successfully completed following works during last 7 years- (i). Three similar completed works each costing not less than the amount equal to 40% of estimated cost put to tender. or Two similar completed works, each costing not less than the amount equal to 50% of the estimated cost put to tender. or One similar completed work of aggregate cost not less than the amount equal to 80% of the estimated cost put to tender. and (ii). One completed work of similar nature costing not less than the amount equal to 40% of the estimated cost put to tender with some Government Deptts./ Autonomous Bodies/Public Sector Undertakings during last 7 years.
(Regarding the above Conditions-A(i) & A(ii) in respect of Experience of work under Eligibility Criterion, it is clarified that any agency having executed one c
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