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2020 Supreme(Guj) 979
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, Bhargav D. Karia, JJ.
A.K. Utility Services - Appellants
Vs.
IRCON International Limited - Respondent
Special Civil Application No. 9798 of 2019 and Civil Application No. 1 of 2019
Decided On : 12-02-2020
Advocate Appeared:
For the Appellant : Vinay D. Bairagar
For the Respondents: Nishith P. Thakkar
The central legal point established in the judgment is the respondent's decision to withdraw the challenged E-Tender document and float a fresh open E-Tender, addressing the concerns raised by the writ applicant.
Headnote:
E-Tender - Eligibility Criteria - General Financial Rules (GFRs), 2017 - [Articles 14 and 19(1)(g) of the Constitution of India] - [Rule 162 of GFRs, 2017] - The court discussed the violation of eligibility criteria in the E-Tender document and the policy decision to withdraw the document and float a fresh open E-Tender.
Fact of the Case:
The writ applicant, a proprietary concern, challenged the E-Tender document issued by IRCON International Limited, alleging that it violated Articles 14 and 19(1)(g) of the Constitution of India and Rule 162 of the General Financial Rules (GFRs), 2017. The court injuncted the respondent from taking further steps related to the E-Tender document.
Finding of the Court:
The respondent-company decided to withdraw the challenged E-Tender document and float a fresh open E-Tender, allowing the writ applicant to apply subject to the eligibility criteria in the new document. The court disposed of the writ application accordingly.
Issues: Violation of eligibility criteria in the E-Tender document, policy decision to withdraw the document, and the opportunity for the writ applicant to apply in the new open E-Tender.
Ratio Decidendi: The court's decision was influenced by the respondent's policy decision to withdraw the E-Tender document and float a fresh open E-Tender, addressing the concerns raised by the writ applicant.
Final Decision: The writ application was disposed of, and the connected civil application was also disposed of.
ORDER :
J.B. Pardiwala, J.
1. By this writ application under Article 226 of the Constitution of India, the writ applicant, a proprietary concern through its proprietor, has prayed for the following reliefs:
"10(A) Your Lordships may be pleased to issue an appropriate writ, order or direction, quashing and setting aside the subject tender bearing no. IRCON/3018/DFCCIL-CTP-12/e-Tender/BL/Utility shifting/08-245, published on 13th May, 2019, by the respondent;
(B) In the alternative, Your Lordships may be pleased to issue an appropriate writ, order or direction, directing the respondent to permit the petitioner to participate in the subject tender bearing no. IRCON/3018/DFCCIL-CTP-12/e-Tender/BL/Utility shifting/08-245, published on 13th May, 2019, to submit its bid and to consider the bid of the petitioner in accordance with law.
(C) Pending hearing and final disposal of this petition, Your Lordships may be pleased to restrain the respondent from taking any further steps or action in and pursuant to the subject tender bearing no. IRCON/3018/DFCCIL-CTP-12/e-Tender/BL/Utility shifting/08-245, published on 13th May, 2019, and further not to open the bids received by it pursuant to the limited tendering.
(D) Pending hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondent to accept the bid of the petitioner and consider the same in accordance with law;
(E) Your Lordships may be pleased to grant ad interim relief in terms of prayers 10(C) and (D), hereinabove.
(F) Your Lordship may be pleased to grant any other and further reliefs as may be deemed just and proper in the interest of justice and fitness of things."
2. We take notice of the fact that the respondent No. 1 namely IRCON International Limited (a Government of India Undertaking) issued a E-Tender document dated 13th May 2019 for the supply, erection, testing, commissioning and other associated works including the fabrication in all respect for the construction/modification/relocation of electrical utility of 33KV and below Power lines for the Dedicated Freight Corridor (Vaitarana Sachin section of Western DFC Phase-2) for CTP-12 Project (package-Gujarat). The technical bid is of a single packet system and limited.
3. It is the case of the writ applicant that it offered its bid on-line, but the bid was rejected as the writ applicant is a proprietary concern, and according to the terms of the E-Tender document, only those companies are eligible to apply which are empanelled with the respondent-company.
4. In such circumstances, the writ applicant could not submit the Tender document on-line. It is the case of the writ applicant that such a E-Tender document could be termed as violative of Articles 14 and 19(1) (g) of the Constitution of India. There are other grounds also raised for the purpose of questioning the legality and validity of the subject Tender.
5. On 24th May 2019, a learned Single Judge of this Court passed the following order:
"Heard learned advocate Mr. Anuj K. Trivedi for the petitioner. He has submitted that the respondent has issued notice inviting e-tender on 13.5.2019. It was submitted that when the petitioner came to know about the issuance of e-tender notice, the petitioner could not submit the tender online and on inquiry, it was found that the tender was only to invite bids from the preselected bidders by the respondent and, there is no eligibility criteria laid down in submitting the tender document. It was further submitted that the Bid Submission End Date is 27.5.2019 and Bid Opening Date is 28.5.2019. Attention of the Court is also invited to the General Financial Rules (GFRs), 2017, more particularly, Rule 162 which provides for Limited Tender Inquiry, wherein, it is provided that, limited tender can be issued when the estimated value of the goods is upto Rs. 25,00,000/- whereas, in the present case, the value of the tender is Rs. 2,80,45,630/-.
Having regard to the submissions made by learned advocate for the petit
