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High Court Of Madhya Pradesh
BHAWANI SINGH, ARUN MISHRA
OPTEL TELECOMMUNICATIONS LIMITED - Appellant
Versus
UNION OF INDIA - Respondents
L. P. A. 209 Of 2000
Decided On : 08/25/2000
Tender Amendment - Telecommunications - Clause 17.3.6 of Section IV - 6 of the bid document - Amendment F. No. 11-03/2000-MMT (SW) dated 23-3-2000
Fact of the Case:
The case involved appeals against the dismissal of three writ petitions filed by Optel Telecommunications Limited, a subsidiary of the M. P. State Electronics Development Corporation, challenging the amendment to tender documents by the Department of Telecommunications (DOT) for procurement of optical fibre cables and related accessories.
Finding of the Court:
The court found that the amendment to the tender documents was made before the submission of bids, and the amendment was uniformly applicable to all bidders. The court also noted that the respondents considered representations by interested parties and took the decision at the highest level before making the amendments to the bid document. The court dismissed the appeals, stating that there was no merit in them.
Issues: The main issue was whether the amendment to the tender documents by the DOT was arbitrary, discriminatory, and against public interest, leading to the closure of the petitioner's industry and rendering hundreds of workers jobless.
Ratio Decidendi: The court held that the amendment to the tender documents was made before the submission of bids, and it was uniformly applicable to all bidders. The court also emphasized that the award of a contract by a public body is essentially a commercial transaction, and unless the decision is arbitrary, mala fide, and against public interest, judicial scrutiny is not possible.
Final Decision: The court dismissed the appeals, stating that there was no merit in them, and left the parties to bear their respective costs.
( 1 ) THESE Letters Patent Appeals (L. P. A. No. 209 of 2000 - Optel Telecommunications Limited v. Union of India and others, L. P. A. No. 210 of 2000 - Optel Telecommunications Limited v. Union of India and others and L. P. A. No. 211 of 2000 Optel Telecommunications Limited v. Union of India and others) are directed against order of the learned single Judge dated August 4, 2000 dismissing the three Writ Petitions Nos. 3406/2000, 3407/2000 and 3408/2000 filed by the appellant/petitioner.
( 2 ) PETITIONER Optel Telecommunications Limited is subsidiary of the M. P. State Electronics Development Corporation, an Undertaking of the Government of Madhya Pradesh, registered under the Indian Companies Act, 1956 with registered office at E-1 New Industrial Area Phase II, Mandideep (Raisen ). It manufactures optical fibre cables, polythene Insulated Jelly Filled Cables and related accessories. Manufacturing of Optical Fibre Cables started in 1989 and it is a major supplier to various Government Departments including the Department of Telecommunications and other organisations. Optical cables of various sizes produced by it are consumed by the Department of Telecommunications to the extent of 95% of the production.
( 3 ) DEPARTMENT of Telecommunications (hereafter DOT) floated open tenders for procurement of Optical Fibre Cables of different sizes/varieties on different dates. for supply of 56000 Kms. of 12 F Optical Fibre Cables, tender notice was issued on January 28, 2000. The last date of issue of tender document was 24-3-2000 till 10. 30 hours and was to be opened on the same day at 11. 00 hours. By notice dated 21-3-2000, the date of opening of tender was postponed to 10-4-2000 at 11. 00 hours. By amendment dated 28-3-2000, delivery rating formula has been changed. W. P. No. 3406 of 2000. Tender notice for supply of 9000 Kms. of 24-F Optical Fibre Cable was issued on 7-1-2000. Last date for issue of tender was 14-3-2000 till 10. 30 hours and the tenders were to be opened on the same day at 11. 00 hours. However, by notice dated 10-3-2000, the date of opening of tender was postponed to 29-3-2000. The mode of calculation of delivery rating was similar to the tenders issued earlier. By amendment dated 23-3-2000, delivery rating formula has been changed.- W. P. No. 3407 of 2000. By another tender notice for supply of 403 lac Kms of polythene Insulated Jelly Filled Cables was issued 4-2-2000. The last date of receipt of tender was March 30, 2000 at 10. 30 hours. It was to be opened on the same day at 11. 00 hours. By amendment dated 23-3-2000 the delivery rating formula has been changed. Challenge to delivery rating formula is common to the other writ petitions.- W. P. No. 3408 of 2000.
( 4 ) THE DOT issued an amendment F. No. 11-03/2000-MMT (SW) dated 23-3-2000 making certain major modifications in the tender conditions with a view to favour some new entrants. These new entrants are extended undue favour with a view to eliminate the Companies which have been serving the respondents for the past many years as against the new entrants who were receiving educational orders for approximately 10 to 50 Kms. By the amendment, the DOT changed the condition of Clause No. 17. 3. 6 of Section IV of the bid document providing concession which could benefit them. As per original terms and conditions of the tender documents, certain companies with lower vendor rating gained better position by the amendment by award of higher delivery rating. By this change, the petitioner was given low delivery rating as compared to the new companies. The entire action favouring the new entrants is arbitrary and smacks of mala fides since change in the tender conditions after accepting the tender documents with a view to favour the new entrants is illegal, arbitrary and violative of Arts. 14 and 19 of the Constitution of India. Change in the original tender document favouring new entrance with no background or knowledge about the optical fibre cab
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