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2021 Supreme(Guj) 307
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R.M. CHHAYA, R.P. DHOLARIA, JJ.
Ve Commercial Vehicles Ltd. – Petitioner
Versus
State of Gujarat and Others – Respondents
Special Civil Application No. 13411 of 2020, Civil Application (For Stay) No. 1 of 2021
Decided On : 04-05-2021
Advocate Appeared:
For the Petitioners: Mr. R.S. Sanjanwala, Ms. Garima Malhotra, Mr. Maharshi Patel, M.S. Shirali M. Patel.
For the Respondents: Mr. H.S. Munshaw, Mr. Tirthraj Pandya.
Point of Law: Tender - Tender process - Evaluating tenders and awarding contracts are essentially commercial transactions/ contracts. If decision relating to award of contract is in public interest, Courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in awarding contract is made out.
Headnote:
Constitution of India, 1950 - Article 14 – Road Transport Act, 1950 - Evaluating tenders – Bids - Fresh tender in terms of technical specifications – Quash of Tender floated by Respondent no. 2 - Seeking direction to Respondent no. 2 to modify technical specifications of Tender to extent that Petitioner can participate in tender process - Technical Specifications as per said tender prescribed that tender is only meant for Chassis Manufacturer and the same should comply with BS-VI Emission norms and number of cylinders 4/6. It also inter-alia prescribed that it should be Engine Exhaust System which combination of Exhaust Gas Recirculation and Selective Catalytic Reduction Technical Specifications as per said tender prescribed that tender is only meant for Chassis Manufacturer and same should comply with BS-VI Emission norms and number of cylinders 4/6 - Whether choice or decision is made lawfully and not to check whether choice or decision is sound.
Finding of the court: It cannot be said that the decision taken by the respondent no. 2 to opt for 10 meters Bus Chassis with BS-VI norms, cannot be termed as decision being against the public interest. Evaluating terms and conditions of tender, it is purely commercial aspect and same is to be left to the wisdom of the respondent. The scope of judicial review in tender matters is very-very limited and in facts of this case, having come to the conclusion that the decision taken by the respondent no. 2 beyond condition prescribed in the second tender is not arbitrary, illegal, unreasonable and irrational, no interference is called for.
Result: Petition is allowed
JUDGMENT :
R.M. CHHAYA, J.
1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for following reliefs:
“(a) Your Lordship may be pleased to issue an order/directions/writ of certiorari or writ of similar nature quashing the Tender bearing no. GEM/2020/B/788564 dated 11th September 2020 floated by the Respondent no. 2.
(b) Your Lordship may be pleased to issue an order/directions/writ of mandamus directing the Respondent no. 2 to modify the technical specifications of the Tender bearing no. GEM/2020/B/788564 dated 11th September 2020 to the extent that Petitioner can participate in the tender process.
(c) In the alternative, Your Lordship may be pleased to issue an order/direction/writ of mandamus directing the Respondent no. 2 to float a fresh tender in terms of the technical specifications laid down in Tender bearing no. GEM/2020/B/712747 dated 17th July 2020.
(d) Pending, admission and final hearing of this petition, this Hon’ble Court may be pleased to pass a direction restraining the Respondent no. 2 from proceeding any further and/or taking any action/decision with respect to Tender bearing No. GEM/2020/B/788564 dated 11th September 2020.
2. The following facts emerge from the record of the petition.
2.1. That the respondent no. 2 i.e. Gujarat State Transport Corporation made a proposal before the Port and Transport Department of the State of Gujarat for purchase of 1000 Bus chassis of 10 mtrs length on 13.07.2020 at estimated cost of Rs. 261 crores which includes component of chassis as well as body building cost with labour and GST. The Ports and Transport Department of State of Gujarat sanctioned said proposal sent by the ST Corporation by a communication dated 16.7.2020. The respondent no. 2 floated Tender under Number GEM/2020/B712747 on 17.7.2020 for Automotive Chassis for State Road Transport Vehicles (1000 buses). The said tender bid document provided as under:
Bid Document
| Bid Details | |
| Bid End Date/Time | 04.08.2020/12:00 AM |
| Bid Opening Date/Time | 04.08.2020 |
| Bid Life Cycle (From Publish Date) | 90 (Days) |
| Bid offer Validity (From End Date) | 65 (Days) |
| Ministry/State Name | Gujarat |
| Department Name | Ports and Transport Department Gujarat |
| Organization Name | Gujarat State Road Transport Corporation |
| Office Name | Central Office |
| Total Quantity | 1000 |
| Item Category | Automotive Chassis for State Road Transport Vehicles |
| Bidder Turnover (last 3 years) | 8800 Lakhs |
| OEM Average Turnover (Last 3 years) | 17600 Lakhs |
| MSE Exemption for years of Experience and Turnover | No |
| Startup Exemption for years of Experience and Turnover | No |
| Document required for seller | Past Performance Certificate (Requested in ATC) OEM Annual Turnover |
| In case any bidder is seeking exemption from Experience/Turnover Criteria, the supporting documents to prove his eligibility for exemption must be uploaded for evaluation by the buyer | |
| Past Performance | 10.00% |
| Bid to RA enabled | Yes |
| Inspection Required | No |
| Estimated Bid Value | 1760000000 |
| EMD Detail | |
| Advisory Bank | State Bank of India |
| EMD Percentage (%) | 0.5 |
| EMD Account | 8800000 |
| ePBG Detail | |
| Advisory Bank | State Bank of India |
| ePBG percentage (%) | 10 |
| Duration of ePBG required (Months) | 24 |
The facts further reveal that date of submission which was originally of 4.8.2020 was extended to 11.08.2020, 21.08.2020, 31.08.2020 and lastly on 09.09.2020. The Technical Specifications as per the said tender prescribed that tender is only meant for Chassis Manufacturer and the same should comply with BS-VI Emission norms and number of cylinders 4/6. It also inter-alia prescribed that it should be Engine Exhaust System which combination of Exhaust Gas Recirculation and Selective Catalytic Reduction. As a matter of fact, the said tender provid
