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1998 Supreme(Ori) 85
High Court Of Orissa
S. N. PHUKAN, C. R. PAL
MODERN MALLEABLES LTD. - Appellant
Versus
GRID CORPORATION OF ORISSA LTD. - Respondent
ORIGINAL JURDN. CASE 17903 Of 1997
Decided On : 04/07/1998
J.Patnaik, R.K.RATH
The power of writ court in examining matters of rejection/acceptance of any tender is limited to examining the manner in which the decisions were taken, and not the merits of the decision itself.
Headnote:
TENDER - REJECTION - LEGALITY - POWER OF WRIT COURT - JUDICIAL REVIEW - SCOPE - IRRATIONALITY - ILLEGALITY - PROCEDURAL IMPROPRIETY - MALICE - PUBLIC INTEREST - ARTICLE 12 OF THE CONSTITUTION.
Fact of the Case:
Petitioners challenged the rebid notice issued by Gridco for the supply of tower structures, fixtures, power conductor, and insulators, alleging that it was issued to frustrate the recommendation of the Chief Engineer to award the supply order in their favor, that the cancellation of their original bid was done without an opportunity of hearing, and that the rebid notice was issued without assigning reasons.
Finding of the Court:
The court held that the rejection of the petitioners' bid for the lot in question was not arbitrary or illegal as it was based on the technical specification requiring type test reports for materials offered, which the petitioners failed to submit. The court also held that the rebid notice was issued with the intention of getting more bids, and the restriction of the qualifying requirement to manufacturers of AAAC conductors was not arbitrary as the petitioners were not qualified to submit bids for that lot.
Issues: 1. Whether the rejection of the petitioners' bid for the lot in question was arbitrary or illegal? 2. Whether the rebid notice was issued with the intention of getting more bids? 3. Whether the restriction of the qualifying requirement to manufacturers of AAAC conductors was arbitrary?
Ratio Decidendi: 1. The rejection of the petitioners' bid was not arbitrary or illegal as it was based on the technical specification requiring type test reports for materials offered, which the petitioners failed to submit. 2. The rebid notice was issued with the intention of getting more bids, as evidenced by the fact that it was issued after the Gridco received advice from the Asian Development Bank (ADB) and the Power Finance Corporation to reconsider the bids. 3. The restriction of the qualifying requirement to manufacturers of AAAC conductors was not arbitrary as the petitioners were not qualified to submit bids for that lot.
Final Decision: The writ petition was dismissed.
S. N. PHUKAN, C. J.
( 1 ) IN this writ petition, the petitioners have challenged the rebid notice dated 5-12-1997 inviting tenders.
( 2 ) FACTS of the case, briefly stated, are thus :-The Government of India received a loan from the Asian Development Bank (for short, 'adb') towards the cost of Power Efficiency (Sector) Project. It was intended that a part of the proceeds of such loan would be applied to eligible payments under Contract for Supply of Tower structures and fixtures, power conductor and insulator and hardwares for different transmission line scheme in Orissa. Therefore, notice dated 1-12-1995 (Annexure 1) was issued by the Grid Corporation of Orissa (for short, 'the Gridco' ). We are concerned with serial No. 2 of the statement ICB for the present purpose, which runs as follows :- @@ Name of the packagequantitybid Securitylast date and time for sale of bidding documentslast date and time of submission of bid. Power Conductor LOT-I (A)AAAC Moose Lot-I (R)171 KMs. Rs. 16,11,260/- or3-2-96 12 hrs. 3-2-96 13 hrs. E. Q. U. S. Dollars. AAAC Zebra518 KMs. LOT-II1218 KMs. Rs. 26,89,600/- oracsr Moosee. Q. U. S Dollarsthe qualifying requirement for bidders ACSR/aac Conductors has been annexed to Annexure 1. Clause 1. 0 provides that the bidder should be a manufacturer or authorised representative of manufacturer (s) of ACSR/aaag Conductor who has an established manufacturing facility or facilities to manufacture ACSR/aaac conductor. It also provides that a bidder may tender for more than one lot of conductors, but he shall not be awarded contracts by the owner for more than the total amount of conductors for which he would be qualified on the basis of the experience described above. @@
( 3 ) THE petitioners gave bids for the above items and an order was placed with them on 31-10-1996 for Lot No. II, namely, ACSR Moose conductor, but their tender for Lot No. I was rejected. Thereafter, the Gridco issued rebid notice on 5-12-1997, and being aggrieved, this writ petition has been filed.
( 4 ) ACCORDING to the petitioners, this rebid notice has been issued to frustrate the recommendation of the Chief Engineer of the Gridco to award the supply order in favour of the petitioners. It has also been urged that cancellation of the original bid of the petitioners was only in order not to award the said Lot in favour of the petitioners and it was done without offering the petitioners an opportunity of hearing. The rebid notice has also been challenged on the ground that no reasons were assigned as to why the petitioners' original bid was rejected. Another ground of challenge is that though in the rebid notice it was mentioned that it was being issued to encourage more participants to offer bids, the qualifying requirement was restricted to manufacturers of AAAC conductors, thereby eliminating the authorised representatives of manufacturers to participate in the bid. It has also been urged that as the petitioners had made the original bid in the capacity of authorised representative of manufacturers of ACSR conductors, the aforesaid qualifying requirement was fixed in the rebid notice to eliminate the petitioners from making their bid. Malice has also been attributed. According to the petitioners, petitioner No. 1 is engaged in the business of tendering and supplying AAAC/acsr/aac type of conductors and is the authorised representative of one or more of the manufacturers of the conductors, and petitioner No. 2 is one of the principal officers and authorised representative of petitioner No. 1 company, Violation of Art. 12 of the Constitution has been pleaded.
( 5 ) IN the counter affidavit filed by the opposite parties, it has been stated that the original tender was for two Lots and the Gridco placed orders with the petitioner for Lot No. II. According to the opposite parties, the requirement of All Aluminium Alloy Conductor could not be fulfilled by the petitioners for which both on commercial as well as technical grounds, their o
