IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 19395 of 2011 Date of Decision: 29.11.2011 M/s. Spheros Motherson Thermal Systems Limited ........Petitioner versus State of Punjab and others .......Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE G. S. SANDHAWALIA Present: Mr. Amninder Preet, Advocate for the petitioner Mr. Piyush Kant Jain, Addl. A.G. Punjab Mr. Narender Hooda, Advocate for respondent No. 4 HEMANT GUPTA, J. The challenge in the present petition is to the award of contract for the purchase of Heavy Vehicle Air Conditioning (HVAC) units from respondent No. 4. The grievance of the petitioner is that respondent No. 4 is not an approved dealer for the purchase of HVAC units but still contract has been awarded to the said respondent and even though the said respondent is not the lower tenderer. In reply, it has been pointed out that vide notification dated 8.11.2007, it was stipulated that HVAC system to be installed in the Buses should be of Thermo king, Carrier, Spheros, Haiger, Denso or of any other make approved by State Transport Commissioner. Subsequently, name of respondent No. 4 was C.W.P. No. 19395 of 2011 2 approved vide communication dated 4.3.2008 but the same was withdrawn vide Annexure P-2 on 02.06.2008. Thereafter, vide communication dated 22.7.2011 (Annexure R-4/5), the specifications earlier fixed for the purchase of HVAC units was amended and approval was granted to invite the open tenders from the other companies making HVAC units. In terms of the said conditions, the State Government is said to have communicated to the reputed manufacturer of HVAC units to participate in the tender process. The manufacturers are as follows:- 1. M/s. Spheros Motherson Thermal Systems Limited 2. M/s Eberspacher Suetrak Bus Climate Control System Pvt. Ltd. 3. M/s Trans ACNR Solutions Pvt. Limited New Delhi. 4. M/s Haiger Refrigeration (P) Ltd. 5. M/s/ Ingersoll Rand Climate Control Technologies, The petitioner has filed the list of leading manufacturer which are stated to be as follows:- 1. Sidwal Refrigeration Industries Limited 2. Fedders Lloyd Corporation Ltd. 3. Subros Limited 4. Asian Auto Aircon 5. Hispacold Int. Ltd., Sp It is pointed out by the State that in response to the communication addressed to the reputed manufacturer as per list mentioned above, the state has received offers from the petitioner, C.W.P. No. 19395 of 2011 3 respondent No. 4 and one M/s. Eberspacher Suetr. The sealed financial bids were opened and bid of respondent No. 4 was found to be lowest that of the petitioner as third lowest. Consequently, the contract was awarded to respondent No. 4. Learned counsel for the petitioner has vehemently argued that the approval was granted vide communication dated 27.7.2011 for inviting open tender but instead of open tenders, the communications were addressed to limited manufacturers and not to all the reputed manufacturers mentioned above. We do not find any merit in the said argument. Whether any reputed manufacturer has been excluded can be examined, if any such said manufacturer invokes the jurisdiction of this Court. As far as the petitioner is concerned, he has participated in the tender process and is not the lower tenderer. Therefore, whether the State has complied with the condition of open tenders or not cannot be permitted to be raised by the petitioner. The argument of learned counsel for the petitioner is that petitioner is lower tenderer as only basic rate and the annual maintenance charges alone can be taken into consideration whereas respondents have considered the warranty charges during the warranty period. Thus, the consideration is not as per tender conditions. In respect of warranty, the clause 10 of the tender conditions read as follows:- “(10) Warranty for these air conditioners (warranty is to be officered for a period of 18 months. Please specify date from which warranty will become operational). C.W.P. No. 19395 of 2011 4 Please quote the spare parts cost per service during warranty period and any other additional costs to be charged during warranty.” The petitioner has claimed a sum of Rs. 4000/- per quarter for service charges. The other tenderers are not charging any amount during the warranty period. Therefore, cost of the petitioner has been evaluated to be more than the cost offered by the other participants. There is specific condition of providing warranty. The petitioner has quoted separately for providing services during the warranty period whereas other manufacturers are not claiming such charges. Therefore, obviously such charges during the warranty period has to be taken into consideration for determining the cost of the units. If the said charges are taken into consideration, the petitioner is not the lowest tenderer. In view thereof we do not find any infirmity in the tendering process which may warrant any interference in the writ jurisdiction of this Court. Dismissed. (HEMANT GUPTA) JUDGE (G.S. SANDHAWALIA) JUDGE 29.11.2011 reena