2013 Supreme(J&K) 541

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Hasnain Massodi, J.
Kashmir Bombay Carrier -Appellant
Versus
Food Corporation of India & Ors. -Resopndent
OWP No. 139-2013, CMA No. 209-2013 & CMA No. 146-2013
Decided On : 13-09-2013

The main legal point established in the judgment is the significance of fulfilling the eligibility criteria specified in tender notices and model tender forms. The court emphasized that non-compliance with the eligibility conditions can lead to the justified rejection of a bid and can disentitle a tenderer from participating in the tendering process.

Headnote:

Tender Notice - Road Transport Contracts - Para 01 of the tender notice titled 'Work Experience' details the experience required for allotment of contract. The respondent no. l vide Corrigendum/ Addendum dated 15th November 2012 revised the eligibility criteria notified earlier in Tender Notice dated 09.11.2012. The period within which the experience was required to be gained, was extended from two years to five years. Petitioner-Firm without disputing aforestated criteria, insists that it satisfies all the essential elements of eligibility criteria as indicated in the 'experience certificate' appended by him with the price bid and it was unjustifiably chased away from the tendering process. The controversy against the above backdrop lies in a narrow compass. All that we have to find out is whether the petitioner-Firm as claimed in the petition fulfilled the eligibility criteria. In case, the petitioner-Firm is found to have fulfilled the eligibility criteria, it would be entitled to the relief sought in the petition as its exclusion from the tendering process would be unjustified and in conflict with the equality clause of the Constitution. To arrive at just conclusion we need to analyze the eligibility criteria, identify its distinct components and find out whether all these components are satisfied in case of petitioner-Firm. The petitioner-Firm in the present case aspired for its appointment as Road Transport Contractor for transportation of foodgrains from FSD New Godown Jammu to FSD Leh and FSD Kargil. The estimated value of two contracts as per the Tender Notice was 14.95 crores and 5.82 crores. The petitioner-Firm to satisfy the eligibility criteria was to show on the strength of the certificate issued by a Manufacturer/Handling Agency/Govt. Dept./PSU/Public Limited Company that it in any year in immediately preceding five years executed any single transport contract satisfying requisite description, of the value of not less than 25% of 14.95 crores (3.7375 crores) in case of Jammu-Leh contract and 25% of 5.82 crores (1.455 crores) in case of Jammu Kargil contract or it in any of the years within the same period executed transport contracts of the value of not less than 50% of 14.95 crores (7.475 crores) in case of Jammu-Leh contract and 50% of 5.82 crores (2.91 crores) in case of Jammu-Kargil contract. The petitioner-Firm claimed to have executed transport contract involving carriage of cement from Jammu to Leh during the period 05.06.2009 to 30.04.2010 for Hindustan Construction Co. Ltd- a Public Limited Co. The contract claimed to have been executed by the petitioner-Firm, therefore, satisfies eligibility criteria as regards goods/material transported and the party for whom it is executed. The only controversy that remains to be dealt with is as regards value of the transport contract claimed to have been executed by the petitioner-Firm. Petitioner-Firm in support of its claim to have executed contract of the requisite value in terms of Tender Notice enclosed with its price bid, a certificate-issued by Vice President - Sourcing and Supply Chain, HCC dated 03.02.2012 where in petitioner-Firm was shown to have transported 12050 MT cement from Jammu to Kargil between 01.06.2009 to 31.10.2009 and value of the contract so executed was certified to be Rs.4,45,85,000.00. The Certificate makes reference to Transport Order No. 15003853 dated 5th June, 2009. The petitioner-Firm appended copy of the aforementioned Transport Order with the Technical Bid. The Transport Order indicated that HCC awarded contract for carriage of 3000 MT cement to the petitioner-Firm and the value of the contract allotted was Rs.11,100,000.00 and period of if contract as 05.06.2009 to 30.04.2010. The Certificate issued by Hindustan Construction Co. Ltd. therefore, did not correspond to the Transport Order. In other words, while in terms of Transport Order the petitioner-Firm was to carry 3000 MT cement for HCC from Jammu to Kargil and the contract was of the value of Rs.11,100,000,00 the Certificate issued by HCC, certified it to have transported 12050 MT cement from Jammu to Kargil during less than half of the contract period (01.06.2009 to 31.10.2009) and the contract so executed to have been of the value of Rs.4,45,85,000.00. The petitioner-Firm did not produce any documents like Transport Order, Contract, Agreement etc in support of the Certificate to indicate that it was award contracts of the estimated value of Rs.4,45,85,000.00. The Tender Notice, therefore, did not require the tenderer to only annex certificate from Manufacturer /Handling Agency/Government Department /PSU/Public Limited Co., dealing in fertilizers, food grains, cement or similar products certifying execution of the contract of the requisite value but also copy of the Transport Order/Work Order/Agreement whereby the contract was allotted to the tenderer. Failure on part of petitioner-Firm to append Transport Order whereby contract for carriage of 12050 MT cement was allotted to it, with the price bid, in peculiar facts and circumstances of the case justified rejection of its technical bid. The case set up by the petitioner-Firm that the Transport Order No. 15003853 dated 05.06.2009 was extended vide No. 15003853 (A) dated 30.06.2009 appended to the supplementary affidavit dated 15.05.2013 is of no consequence for the reasons that copy of the Communication was not appended to the technical bid. The copy of said Communication was not even placed as annexure to the main petition and has been placed on record alongwith the supplementary affidavit filed on 15.05.2013. The respondent-Corporation, in the circumstances, cannot be faulted for rejecting petitioner's technical bid, refusing to open its price bid and excluded it from the tendering process. The Model Tender Form For Road Transport Contracts (MTFRTC), placed as Annexure J with the petition is to be read with the Tender Notice. The document at para 3 titled 'Qualification conditions for Bidding reiterates the eligibility criteria, briefly referred to in the Tender Notice. A closer look at MTFRTC reveals that the tenderer has not only to append a certificate from the Manufacturer etc certifying that he executed contract(s) of requisite nature and value in any of the preceding five years but also certifying that the contract was 'satisfactorily executed and completed' and indicating proof there for. In the present case, not only did, the petitioner-Firm, fail to substantiate that the contract executed by it for HCC during the year 2009-2010 was of the requisite value but also that the contract was 'satisfactorily executed and completed'. The 'qualification conditions' laid down in the Tender Notice and MTFRTC are not in the nature of a formality and are not recommendatory in nature. The eligibility conditions are intended to serve an important purpose. The respondent-Corporation deals in procurement, storage, transportation and supply of food grains in remote parts of then State. The respondent-Corporation, therefore, is engaged in task of huge public interest. It can ill afford to entrust transportation of food grains etc to a Road Transport Contractor, ill equipped to execute the contract and leave people in remote areas without food grains and like essential items. It is to ensure that the transportation contract is allotted to a trustworthy and reliable Road Transport Contractor with necessary infrastructure and capacity to mobilize resources that the respondent-Corporation insists on 'satisfactory execution and completion of a contract/contracts' of quarter or half of the value of the contract proposed to be allotted. The 'qualification conditions' laid down in the Tender Notice and MTFRTC, therefore, are of essential character and non fulfillment of any of the conditions or components thereof would disentitle the tenderer from participation in the tendering process without any grievance against the respondent- Corporation. For the reasons discussed, the writ petition is bereft of any merit and is, therefore, dismissed. Petitioner-Firm because its failure to append requisite certificate could not cross the initial barrier and cannot be heard complaining about its exclusion from the tendering process. So viewed, it cannot maintain the writ petition or seek relief prayed in the petition. Dismissed.

Fact of the Case:

The General Manager (R), Food Corporation of India floated a tender notice inviting offers from business concerns for appointment of Road Transport Contractors to transport stocks by road from FSD New Godown, Jammu, to FSD Leh and FSD Kargil. The petitioner, a partnership firm, submitted its offers for the contracts but was rejected on the ground that the experience certificate appended by it to the Technical Bid did not conform to the tender notice. The petitioner filed a writ petition questioning the rejection of its Technical Bid, claiming that the decision was arbitrary and violative of Article 14 of the Constitution of India. The petitioner sought relief in the form of a Writ of Mandamus, Writ of Certiorari, and quashing of the entire process for movement of stocks by road from FSD New Godown Jammu to Leh and Kargil.

Finding of the Court:

The court found that the petitioner failed to fulfill the eligibility criteria as specified in the tender notice and the Model Tender Form for Road Transport Contracts. The petitioner's failure to provide necessary documents and evidence to support its claim led to the rejection of its technical bid. The court dismissed the writ petition, stating that the petitioner could not maintain the petition or seek the relief prayed for due to its failure to meet the eligibility criteria.

Issues: The main issue was whether the petitioner fulfilled the eligibility criteria specified in the tender notice and the Model Tender Form for Road Transport Contracts. Additionally, the court had to determine whether the rejection of the petitioner's Technical Bid was justified and in compliance with the equality clause of the Constitution.

Ratio Decidendi: The court's decision was based on the finding that the petitioner failed to provide sufficient evidence to demonstrate its fulfillment of the eligibility criteria. The court emphasized the importance of the eligibility conditions in ensuring the selection of trustworthy and reliable Road Transport Contractors for the transportation of essential goods. The failure to meet the eligibility criteria justified the rejection of the petitioner's technical bid.

Final Decision: The court dismissed the writ petition, stating that the petitioner's failure to fulfill the eligibility criteria led to the justified rejection of its technical bid. As a result, the petitioner could not maintain the petition or seek the relief prayed for.