Caveat No.4098/2018

Caveat stands discharged.

OWP No.2576/2018

1. Petitioner challenges the order dated 17.11.2018 whereby despite being L-1 in the bidding process for supply of glucose biscuits, the order has been placed with respondent No. 4. The action is justified by the official respondents on the ground that whereas the glucose biscuits being manufactured by the petitioner in the name of KC Biscuits was a local brand, the respondent No. 4 had agreed to supply glucose biscuits of a well known brand i.e. Parle-G.

Briefly stated the material facts are as under

2. E-Tenders were invited by the Government of J&K for supplying 15,000 quintals of glucose biscuits with the required specifications. Bidding process involved a two bid system i.e. technical bid and the financial bid. The technical bid was supposed to be accompanied with sealed samples duly signed by the bidder as also accompanied with analytical test report from the Government approved laboratory/authority or NABL accredited Food Laboratory approved by FSSAI.

3. The financial bids of only those bidders who qualified the technical bid were supposed to be opened. Clause 14 of the NIT deserves a reference and is reproduced hereunder:

“......SLPC reserves the right to accept or approve even high rates on the basis of quality of product/goods to be supplied viz-a-viz laboratory test report.”

4. Petitioner as also respondent No. 4 qualified in the technical bid. In the financial bid, the rate quoted by the petitioner was 6835 per quintal as against 6845 per quintal quoted by respondent No. 4. Petitioner thus emerged as an L-1 without any price preference.

5. It appears that certain news items appeared in the media with headlines “Items declared substandard in 2017, ICDS selects same biscuit brand again”. This perhaps was only in relation to one M/s Rattan Oil Mills, an SSI unit, who had emerged as L-1 bidder in respect of Kashmir Division without any price preference for supply of glucose biscuits. The Purchase Committee with a view to play safe, in view of the press report recorded a decision in one of the meetings, which is as under:—

“The Committee Members after detailed discussions, were of the opinion that as per the standard industrial policy, price preference upto 20% should be given to SSI units for the encouragement of these SSI units. In view of the news items carried in the press media, it shall not be advisable as press media has pleaded for procurement of branded items by virtue of which industrial policy gets violated and tender floated cannot be brand specific. Therefore, the Committee Members were of the unanimous opinion that the SMD, ICDS J&K (Chairman, SLPC) should take up the matter with the Government for seeking necessary guidance with regard to the procurement of item glucose biscuits.”

6. The Director Finance, Social Welfare Department vide communication dated 27.09.2018 addressed to the State Mission Director, ICDS, responded in the following manner:—

“In this connection, it is requested to deliberate upon the issue in threadbare at your own level and decide about the purchase to be made. But in any case, the quality of the item (brand) should not be compromised as the item is to be provided to lacs of children enrolled in Anganwari Centres.”

7. Pursuant to the response aforementioned, the State Level Purchase Committee in its meeting held on 13.11.2018 negotiated directly with respondent No. 4, who was L-2 in the bidding process, as against the rate quoted by him @ Rs. 6845 per quintal made him to agree to a lower rate of Rs. 6780 per quintal and on that basis issued the supply order dated 17.11.2018, which is impugned in the present petition.

8. Learned counsel for the petitioner attributed the selection of respondent No. 4, to bias and malafides. It was alleged that the official respondents had created record, in the shape of press reports with a view to justify allotment of the contract in favour of respondent No. 4. It was urged that the responde