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2009 Supreme(Gau) 264
IN THE HIGH COURT OF GAUHATI
Jasti Chelameswar, C.J. and Arun Chandra Upadhyay, J.
Lumino Industries Ltd. - Appellants
Vs.
Assam State Electricity Board and Ors. - Respondent
AND
Assam State Electricity Board and Ors. - Appellants
Vs.
Diamond Power Infrastructure Ltd. and Ors. - Respondent
Writ Appeal Nos. 364 and 375 of 2008, Alongwith Writ Appeal No. 365 of 2008
Decided on : 24.04.2009
For Appellant/Petitioner/Plaintiff: G.N. Sahewall, Sr. Adv., D. Senapati and M. Jain, Advs. in Writ Appeal No. 364 of 2008, N. Dutta, Sr. Adv. and Md. Aslam, Advs. in Writ Appeal No. 365 of 2008,B.D. Das, H.K. Sarma, N. Goswami and D. Nath, Advs. in Writ Appeal No. 375 of 2008 and P. Bora, Adv. in Writ Appeal Nos. 364 and 365 of 2008
For Respondents/Defendant: P.K. Goswami, Sr. Adv. in Writ Appeal No. 364 of 2008, B.D. Das, Adv. in Writ Appeal Nos. 364 and 365 of 2008, D. Duara, Adv. in Writ Appeal No. 375 of 2008 and S.S. Goswami, Adv.
Headnote:
Constitution of India, 1950 - Article 226 - Invitation to bid - Tender process – Contract - Appellant in WA No. in consortium with appellant in WA No. submitted a bid. Apart from that appellant in WA No. also filed a separate bid - 7th respondent herein who was petitioner in WP(C) No. also filed its bid- While appellant in WA No. offered to execute work in question writ petitioner quoted an amount whereas the appellant in WA No. quoted an amount - It appears that a tri partite agreement was made between Govt. Assam State Electricity Board (ASEB) and a body known as Rural Electrification Corporation Ltd. (REC) - Approval of said REC is required for finalization of tender invited by ASEB - Therefore, ASEB sought the approval of above mentioned REC to finalise the bid to enter into a contract with appellant in WA No. for execution of the work of Package No. 4 - According to the writ petitioner such a tender process by above mentioned appellants is totally collusive and contrary to stipulation of the invitation to bid, more specifically clause highlighted earlier in this judgment - According to writ petitioner bid of appellant in WA No. therefore should have been rejected as a non-responsive bid - Writ petitioner also sent a representation dated to Chief General Manager, REC objecting to consideration of bid of the appellant – Held, Court are of the opinion that agreement if any between the appellants/bidders cannot be called an agreement attempting to control production of the particular equipment which they sought to supply or sale price of such equipment - As held by Supreme Court it all depends on nature of the agreement and surrounding circumstances for example quantum of demand of equipment such as the one questioned here and number of consumers of such equipment in context of control of production etc - Coming to the question of control of production - When tenders were floated for procurement of bogies four of the manufacturers offered identical price which is far lesser than price quoted by the other small manufacturers compared to four manufacturers uniformly quoting a lower price - In said circumstances Supreme Court accepted opinion of employer that there was a predatory conspiracy between four big manufacturers and the Supreme Court explained, relying on a judgment of the American Court reported - Appeal allowed
J. Chelameswar, C.J.
1. These three appeals arise out of a judgment dated 14.11.2008 in WP(C) No. 4487/2008 by the respondent Nos. 6, 5 and 1 respectively in the writ petition.
2. The Assam State Electricity Board (ASEB), which is the appellant in WA No. 375/2008 and the first respondent in the writ petition, issued an invitation to bid dated 31.5.2008 for execution of certain rural electrification works in the district of Karbi Anglong. The work was divided into five packages. In these three appeals we are concerned with the Package No. 4 of the above mentioned work.
3. In response to the above mentioned invitation the appellant in WA No. 364/2008 in consortium with the appellant in WA No. 365/2008 submitted a bid. Apart from that, the appellant in WA No. 365/2008 also filed a separate bid. The 7th respondent herein, who was the petitioner in WP(C) No. 4487/2008, also filed its bid. While the appellant in WA No. 364/2008 offered to execute the work in question at Rs. 91,60,25,075.01, the writ petitioner quoted an amount of Rs. 1,07,02,76,569.37 whereas the appellant in WA No. 365/2008 quoted an amount of Rs. 1,00,09,01,448.15.
4. On examination of the tenders filed by the various parties the ASEB invited the appellant in WA No. 364/2008 for further negotiations as the appellant was found to be the lowest bidder. Eventually the appellant in WA No. 364/2008 agreed to reduce the offer marginally and offered to execute the work at a cost of Rs. 91,25,60,000.
5. It appears that a tri partite agreement was made between the Govt. of Assam, the Assam State Electricity Board (ASEB) and a body known as the Rural Electrification Corporation Ltd. (REC). The approval of the said REC is required for finalization of the tender invited by the ASEB. Therefore, the ASEB sought the approval of the above mentioned REC to finalise the bid to enter into a contract with the appellant in WA No. 364/2008 for execution of the work of the Package No. 4.
6. While the matter was pending consideration before the above mentioned REC the instant writ petition came to be filed. By an interim order dated 1.2.2008 the finalization of the tender process was stayed by this Court.
With reference to each of the packages for which the bids are invited various eligibility criteria for participation in the tendering process are indicated. Insofar as Package No. 4, with which we are concerned the qualification are as follows:
Packages KANCH-4-Supply & installation of 11 KV LT lines & Distribution Transformers and service connections to BPL beneficiaries.
1.1 (i) The bidder should have executed at least one sub-station or switch yard of 33 KV class or above during the last seven (7) years as on the date of bid opening and which must be in satisfactory operation for at least two (2) years as on the date of bid opening.
OR
(ii) The bidder should have constructed and commissioned transmission lines/feeders of aggregate root length of 100 km 11 KV or above voltage class or installed/erected 11 KV or above voltage class sub-stations (in case of 11/0.4 KV distribution sub-station at least 20 number sub-stations) during the last seven (7) years and which must be in satisfactory operation for at least two (2) years as on the date of bid opening.
OR
(iii) The bidder should be a manufacturer who must have designed, manufactured, type tested and supplied in one single year (in any year during last seven years) at least 20 MVA cumulative distribution transformers of 11/0.4 KV rating or power transformers for 11 KV and above voltage class and are in satisfactory operation for at least 2 years as on the date of bid opening provided he engages a sub-contractor (the details of which to be submitted along with the bid), who meets any one of the qualification requirements specified in (i), (ii) or (iii) above. In such case the bidder proposing sub-contractor(s) shall furnish a Joint Deed of Undertaking (Format enclosed as Appendix) along with sub-contractor(s) guarantee, quality and timely c
