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IN THE HIGH COURT OF DELHI
Vipin Sanghi, Jasmeet Singh, JJ.
Rosenbauer International AG - Appellant
Versus
Airport Authority of India - Respondent
W.P.(C) 14608 of 2021 & CM Appls. 46021-46023 of 2021
Decided On : 20-04-2022
Tender authorities have discretion to cancel tenders when competition is insufficient, provided reasons are justified and decisions are not arbitrary.
Headnote:(A) Administrative Law - Tender cancellations - Motor Vehicles Act, 1988 - Section 2(28) - The Airport Authority of India cancelled a tender for Airfield Crash Fire Tenders citing administrative reasons after only one eligible bid was received. The process followed was deemed compliant with procurement guidelines, and the cancellation was found to not be arbitrary or mala fide (Paras 28-40).
(B) Judicial Review - The court emphasized the limited scope of scrutiny in tender cancellations, stating decisions should only be interfered with if mala fide or perverse (Paras 29-30).
(C) Tender Regulations - The court noted that insufficient competition could warrant the cancellation of a tender, as established by relevant procurement rules (Paras 41-46).
Facts of the case:
The petitioner, an Austria-based company, challenged the cancellation of a tender for fire-fighting vehicles after being the sole compliant bidder. Allegations of mala fides were made but were not upheld (Paras 2-10).
Findings of Court:
The court upheld the cancellation of the tender, citing proper reasoning and compliance with procurement policies (Paras 48-47).
Issues: Was the cancellation arbitrary and did it violate the petitioner’s rights as the sole bidder? (Para 28).
Ratio Decidendi: The court affirmed that the tender process's integrity must be preserved, with clear justification required for cancellation and a broad discretion afforded to the authority managing the tender (Paras 29-30).
Result: The petition was dismissed, affirming the decision to cancel the tender.
| Table of Content |
|---|
| 1. factual background of the petitioner and the tender process. (Para 1 , 2 , 3 , 4 , 5) |
| 2. details surrounding the cancellation of the second global tender. (Para 6 , 10 , 12 , 14) |
| 3. timelines and submissions related to the tender process. (Para 8 , 9) |
| 4. rationale for judicial scrutiny and scope of interference. (Para 28 , 29) |
| 5. court's findings on the legality of tender cancellation. (Para 30 , 31 , 37 , 39 , 40 , 46) |
JUDGMENT
Jasmeet Singh, J. The present petition has been filed by the petitioner seeking following substantial prayers:
"(a) issue a writ in the nature of mandamus or certiorari or any other writ order or direction quashing/setting aside the "impugned order" being Corrigendum No. 5 bearing Ref No. AAI/CHQ/Tech/5-A/ACFT/2019 Dated 29.11.2021 ["Annexure P-1"] issued by the Respondent No 1 for cancelling the tender SECOND Global Tender ID: 2021_AAI_67496_2 and to further direct the respondents to process the tender as per the stipulated guidelines.
2. The case of the petitioner in a nutshell is that the petitioner is an Austria based company, and it offers a large selection of fire-fighting vehicles, that are designed especially for airport operations to ensure the safety of equipment and human life in case of instance of fire in aircraft, and or at airports.
3. The petitioner claims that the Airport Crash Fire Tenders (hereinafter referred to as "ACFT") designed by the petitioner meet the highest safety standards all over the globe, and the petitioner is the largest production company in the world of ACFTs. The petitioner also has its business interests in India, wherein it supplies, manages and operates various ACFTs by participating in tender floated by the Government authorities, such as Indian Air Force, Indian Navy, Indian Coast Guard, Aviation Research Centre (Cabinet Secretariat), and all the major private airports in India.
4. The petitioner has participated in all the global tenders floated by respondent No. 1 - Airport Authority of India, and has till date supplied 160 ACFTs in various tenders.
5. The respondent No. 1 is Airport Authority of India (hereinafter referred to as "AAI"), and is a unit/division of respondent No. 2 i.e. Ministry of Civil Aviation. The respondent No. 1 is under control and governance of respondent No. 2, and the Joint Secretary of respondent No. 2 is deputed as controlling authority of respondent No. 1.
6. The respondent No. 1 invited the First Global Tender (hereinafter referred to as "FGT") on 10.01.2020 for supply of 33 Nos. of ACFTs of 10,000 ltrs water tank capacity. Since nothing much rests on the first tender, we are not going into this tender's conditions. The said tender was cancelled vide the letter bearing No. AAI/CHQ/Tech/5-A/AR-II(Tech)/2019/Vol 2 dated 19.07.2020, without assigning reasons. After cancellation of the First Global Tender, the respondent No. 1 floated another tender i.e. Second Global Tender (hereinafter referred to as "SGT") on 19.01.2021 for supply of 33 Nos. of ACFTs of 10,000 ltrs water tank capacity. In the SGT, the experience clause was relaxed from the first tender, and the bidders, who had experience of supply of 4,500 ltrs ACFTs in the last 17 years (earlier prescription was 10,000-ltrs capacity in last 7 years), were eligible to participate.
7. On 22.02.2021, a corrigendum was issued, and as per Para 4.3.1.4, the Technical Directorate clarified that "Engine(s) shall have Bharat Stage VI/Euro VI EC type approval or equivalent certificate issued by any regulatory authority. OEM shall submit a certificate confirming emission level meets BS VI/Euro VI or equivalent." Hence, as per the corrigendum only Bharat Stage VI/Euro VI Engine was acceptable.
8. The timelines in the SGT were as under:
| Corrigendum 1 | Bid Submission Start Date extended to 23.02.2021 |
| Corrigendum 3 | Bid Submission End Date extended to 21.03.2021 PQQ/Technical Bid Opening date extended to 24.03.2021. |
| Corrigendum 4 | Bid Submission End Date extended to 22.03.2 |
