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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Aravind Kumar, Ashutosh J. Shastri, JJ.
Sumesh Engineers Private Limited – Petitioner
Versus
Madhya Gujarat Vij Company Limited – Respondent
R/Special Civil Application No. 6533 of 2022
Decided On : 06-05-2022
TENDER - PROCUREMENT PROCESS - [1.3.6, 2.3.6, Annexure-III] - The court quashed the impugned communication dated 23.3.2022 and directed the respondent authority to consider the petitioner's bid for further consideration in the tender process in respect of the tender Nos.MGVCL/Proc/CPP/22-23/3137/10 KVA DTR and MGVCL/Proc/CPP/22-23/3138/5 to 500 KVA DTR and take appropriate decision at the earliest.
Fact of the Case:
The petitioners challenged the legality and validity of the impugned communication dated 23.3.2022, which declared the action of the Respondent holding the Petitioner No.1's bid to be invalid. The petitioners contended that they had informed the respondent about the change of Directors within the prescribed period and had been undertaking ongoing work with the respondent under the authority of the new Directors.
Finding of the Court:
The court found that the respondent's decision to disqualify the petitioner from the tender process was arbitrary, irrational, and hyper-technical. The court noted that the petitioner had informed the respondent about the change of Directors within the prescribed period and had been undertaking ongoing work with the respondent under the authority of the new Directors. The court also observed that there was a sizable difference between the petitioner's bid and the other lowest bidders, which could result in a substantial loss to the public exchequer.
Issues: The issues revolved around the respondent's decision to disqualify the petitioner from the tender process based on the change of Directors and the alleged failure to provide necessary documents.
Ratio Decidendi: The court held that the respondent's decision was arbitrary, irrational, and hyper-technical, and directed the respondent authority to consider the petitioner's bid for further consideration in the tender process. The court emphasized the duty of the Constitutional Court to interfere when there is arbitrariness, irrationality, malafides, and bias, especially in matters of public importance.
Final Decision: The court allowed the Special Civil Application, quashed the impugned communication, and directed the respondent authority to consider the petitioner's bid for further consideration in the tender process. The court clarified that it had not expressed any opinion with regard to merits and left it open to the respondent authority to take an independent appropriate decision in accordance with the law as per the terms stipulated under the subject tender.
ORDER :
Ashutosh J. Shastri, J.
1. By way of this petition under Article 226 of the Constitution of India, the petitioners have questioned the legality and validity of the impugned communication dated 23.3.2022 and have prayed for quashing of the same with consequential reliefs, which reads as under :
(B) to direct the Respondent to open and consider the Petitioner No I's price bids for Tender Nos. MGVCL Proc CPP/22-23/3137/10KVA DTR and MGCVL/Proc/CPP/22-23/ 3138/5 to 500 KVA DTR along with all other bidders;
(C) pending hearing and final disposal of the present Special Civil Application to stay the further tender process and/or any further action by the Respondent for Tender Nos. MGVCL/Proc/CPP/22- 23/3137/10 KVA DTR and MGVCL/Proc/CPP/22-23/3138/5 to 500 KVA DIR:
(D) pending hearing and final disposal of the present Special Civil Application prohibit the Respondent from issuing any Letter of Acceptance (LOA)/Acceptance of Tender (AT) in favour of any bidders for Tender Nos. MGVCL/Proc/CPP/22 -23/3137/ 10 KVA DTR and MGVCL/Proc/CPP/22-23/3138/5 to 500 KVA DTR:
(E) to grant ex-parte ad-interim interim relief in terms of paragraphs 7(C) and (D) hereinabove:
(F) to provide for costs of the present Special Civil Application;
(G) to pass such other and further orders as this Hon'ble Courts deems fit and proper in the facts and circumstances of the case.
2. The case of the petitioners is that petitioner No. 1 has been a registered vendor/manufacturer to GUVNL, MAHA DISCOM since the past many years and last registration which was renewed with the respondent was on 13.5.2021. Respondent herein floated a tender No.3137 calling upon the registered manufacture of India having GST registration on behalf of DISCOMS (viz. DGVCL, MGVCL, UGVCL and PGVCL) under the Centralized Procurement Process ("CPP"). The said tender was for procuring 11/0.433 KV, three phase 10KVA (Aluminium would) CRGO/Amorphous Core distribution transformers with BIS marking and certification. Total quantity originally required by the respondent was 83593 transformers. But, later on, by way of a corrigendum, the quantity required was enhanced to 88693 transformers. The last date for submission of online bid prescribed in the tender document was 4.1.2022 which was revised to 14.2.2022. Whereas the tentative date of opening the technical and price bid in online mode was 14.1.2022, but the petitioners were not informed about the new date for opening the technical and price bids of the bidders by the authority.
3. It is the case of the petitioners that similarly, the respondent also floated tender No.3138 for procuring 11/0.250kV single phase 5KVA (Copper wound) Level-2, 11/0.433kV three phase 16kVA to 200KVA (Aluminium would) and three phase 500 KVA (Copper would) Level-2/Star- rated CRGO/Amorphous Core distribution transformers. Here, also, total quantity required by the respondent of different categories of KVAs was 74450 transformers and in the same manner, by way of corrigendum, said quantity was enhanced to 76773/- transformers. The last date of this tender No.3138 was 6.1.2022, which was again revised to 15.2.2022. Whereas, the tentative date for opening the technical and price bid in online mode was 17.1.2022. Here also, the petitioner was not informed about the new date of opening the technical and price bids and to the best knowledge of the petitioners, till date (i.e till 8:00 PM on 29/03/2022) for tender No.3138, the price bids have not been opened.
4. By annexing the afore-mentioned tender documents, petitioner has contended that under these two tenders, procurement pr
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