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IN THE HIGH COURT OF DELHI AT NEW DELHI
Satish Chandra Sharma, Subramonium Prasad, JJ.
Frigorifico Allana Pvt. Ltd. - Petitioner
Versus
East Delhi Municipal Corporation & Anr. – Respondents
W.P.(C) 10583/2020 & C.M. APPL. 33874/2020, 734/2021 & 10245/2021
Decided On : 13-04-2023
Tender - Writ Petition - EDMC/ADVS/GSH/2020/002 - The court dismissed the petition challenging the decision to qualify the bid of Respondent No. 3. The Respondent Consortium was found to be a qualified bidder after thorough investigation and verification of all documents, including the experience certificate. The purpose of obtaining a bid security for the Subject Tender was fulfilled when the Respondent Consortium paid the same in the form of a Demand Draft. The tender document does not create any bar or prohibition on a bidder to rely upon the experience of its subsidiary or a Special Purpose Vehicle which is under its control.
Fact of the Case:
The Petitioner challenged the decision of the tendering authority holding the Respondent Consortium as a technically qualified bidder for the purpose of the Subject Tender. The Petitioner alleged that the Respondent Consortium failed to disclose details pertaining to the termination of the contract between the GHMC and one of its constituent members, pending litigation, and amount due to be paid by members of the Respondent Consortium. The Petitioner also challenged the validity of the experience certificate handed over by Respondent No. 3 and stated that they don’t have the necessary experience to be a qualified bidder as per the terms of the RFP.
Finding of the Court:
The court found that there has been no concealment by Respondent No. 3 regarding the alleged payment of dues to the GHMC, pending litigation, termination of agreement, or blacklisting of Respondent No. 3. The validity of the experience certificate submitted by the Respondent Consortium has also been verified by the EDMC with the GHMC. The purpose of obtaining a bid security for the Subject Tender was fulfilled when the Respondent Consortium paid the same in the form of a Demand Draft. The tender document does not create any bar or prohibition on a bidder to rely upon the experience of its subsidiary or a Special Purpose Vehicle which is under its control.
Issues: The issues revolved around the qualification of the Respondent Consortium as a technically qualified bidder, the alleged non-disclosure of material information, and the form of bid security submitted by the Respondent Consortium.
Ratio Decidendi: The court held that the decision of the Respondent Corporation to qualify the bid of the Respondent No. 3 was not arbitrary, perverse, mala fide, irrational, or unreasonable. The purpose of obtaining a bid security for the Subject Tender was fulfilled when the Respondent Consortium paid the same in the form of a Demand Draft. The tender document does not create any bar or prohibition on a bidder to rely upon the experience of its subsidiary or a Special Purpose Vehicle which is under its control.
Final Decision: The court dismissed the petition challenging the decision to qualify the bid of Respondent No. 3. No case for interference by the Court in exercise of its powers under Article 226 was made out.
JUDGMENT :
1. The present Writ Petition has been filed challenging the email dated 15.12.2020 whereby the East Delhi Municipal Corporation (“Respondent No.1” or “Respondent Corporation” or “EDMC”) and the Director of the Veterinary Services Department of EDMC (“Respondent No.2”), has declared that the consortium of three members, i.e., M/s Qureshi International Private Ltd., M/s Fresh N Frozen Food Tech Private Ltd., M/s DS Max (“Respondent No.3” or “Respondent Consortium”) has qualified in the technical bid for the Tender bearing NIT NO. EDMC/ADVS/GSH/2020/002 dated 20.07.2020floated by Respondent No. 2. [“Subject Tender”]. The Petitioner has prayed for the following relief in the instant Writ Petition:
“1. Allow the present Writ Petition and issue writ, order or direction in the nature of Mandamus or any other appropriate writ/order/direction to Respondent to declare Bidder No.2 technically disqualified for not qualifying the eligibility criteria of the RFP/tender;
2. Direct Respondents quashing the impugned letter dated 15.12.2020 to the extend that Bidder No.2 is technically disqualified;
3. Direct the Respondents to declare the Bidder No. 2/Consortium not fulfilling the technical criteria as unsuccessful bidders;
4. Direct the Respondents to restrain the Respondents to award the tender to bidders not fulfilling the technical criteria of the tender till the pendency or the present Writ Petition;
5. Pass such other Order(s)/direction(s) in the interest of justice and in favour of the Petitioners, as may be deemed fit and proper b) the Hon ' ble Court under the facts and circumstances of the case.”
2. The facts leading up to the filing of the instant Writ Petition are as follows:
a. On 20.07.2020, the Veterinary Services Department of EDMC (“VS Dept.”) floated a Request for Proposal (“RFP”) bearing NIT No. EDMC/ADVS/GSH/2020/002 for operation and maintenance of a modern slaughterhouse and carcass utilization-cum-rendering plant at Ghazipur, Delhi for a period of 10 years on lease basis.
b. After a pre-bid conference, on 17.08.2020, a corrigendum was issued by Respondent No.2 whereby changes were allegedly made to the existing tender, including relaxing the eligibility criteria of experience/capacity of slaughtering was reduced from 500 buffaloes and 4500 sheep/goats per day to 500 buffaloes and 750 sheep/goats per day. Further, the eligibility requirement of experience of operating and maintaining the rendering plant was deleted by Respondent No.2. Thereafter, various bidders including the Petitioner and Respondent No.3 submitted their respective technical and financial bids.
c. Subsequently, on 17.09.2020 the Petitioner apprised the Respondent Corporation regarding anomalies in the previous experience of Respondent No. 3. The Petitioner came to know about these anomalies through an email it received from the Secretary/President, All India Jamaitul Qureshi Action Committee (“AIJQAC”) allegedly related to the Respondent Consortium
d. On 28.09.2020, the EDMC took cognizance of the aforesaid complaints against Respondent No. 3 and called upon Respondent No. 3 to provide it with relevant information and documents so it could investigate the veracity of the complaints.
e. On 19.10.2020, the Petitioner received an RTI copy through WhatsApp from one Mr. F. Qureshi regarding the slaughterhouse and carcass utilisation plant of one of the members of Respondent Consortium – M/s Fresh N Frozen Food Tech Pvt. Ltd. The Petitioner forwarded the above to the Respondent Corporation vide an even dated letter.
f. Thereafter, the EDMC on 22.10.2020 requested the Greater Hyderabad Municipal Corporation (GHMC) to verify the claims of Respondent No. 3, that it had entered into an agreement with the GHMC for operation and management of the Slaughterhouses at Amberpet and New Bhoiguda, whether the aforesaid agreements had been terminated and whether the Respondent Consortium had been blacklisted by the GHMC.
g. Subsequently, the GHMC vide its letters dated 30.10
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