CWP No. 2285 of 2009 1 In the High Court of Punjab and Haryana, Chandigarh. CWP No. 2285 of 2009 Date of Decision: 25.03.2009 Maxim Mechatronics Pvt. Ltd. ....Petitioner. Versus Punjab State Agricultural Marketing Board and another. ....Respondents. Coram:- Hon'ble Mr.Justice J.S. Khehar Hon'ble Mr. Justice Uma Nath Singh Present: Mr. B.S. bedi, Advocate for the petitioner. Mr. R.S. Cheema, Advocate for respondent No.1. Mr. Harinder Singh, Advocate for Mr. Jasdeep Gill, Advocate for respondent No.2. ... J.S. Khehar, J. (Oral). Respondent No.1 issued an advertisement which appeared in the Hindustan Times on 6.5.2008, inviting an Expression of Interest for providing post harvest infrastructure in the Grain, Fruit and Vegetable Markets in the State of Punjab. The petitioner claims to have responded to the aforesaid advertisement on 28.5.2008. According to the original advertisement dated 6.5.2008, bids were required to be submitted up to 16.1.2009, with a clear mandate that they would be opened on 21.1.2009. The petitioner allegedly received an e-mail on 9.1.2009, wherein the date of receipt of bids was extended to 23.1.2009, with a further direction that the bids would be opened on 28.1.2009. Yet again, the CWP No. 2285 of 2009 2 petitioner received another e-mail on 20.1.2009, extending the date of receipt of bids upto 5.2.2009 with a further clarification that the bids would be opened on the same date, namely, 5.2.2009. By yet another e-mail dated 4.2.2009, the date of bids and their opening was extended to 12.2.2009. The grievance of the petitioner is based on an e-mail dated 10.2.2009 (Annexure P-8) vide which the eligibility criterion was changed. So far as the changed eligibility criterion is concerned, learned counsel for the petitioner has expressly invited our attention to paragraph 4 of the aforesaid corrigendum. Paragraph 4 of the corrigendum is extracted hereunder: -- “4. The turn over of the Company/Consortium should be as under instead of already circulated to you: -- (i) Average Annual financial turnover during the last 3 years, ending 31st March of the previous financial year, should be at least 30% of the estimated cost. (ii) Experience of having successfully completed similar works during last 7 years ending last day of month previous to the one in which applications are invited should be either of the following: -- a) Three similar completed works costing not less than the amount equal to 40% of the estimated cost. or b) Two similar completed works costing not less than the amount equal to 50% of the estimated cost. c) One similar completed work costing not less than the amount equal to 80% of the estimated cost. CWP No. 2285 of 2009 3 In addition to above, the criteria regarding satisfactory performance of works, personnel, establishment, plant, equipment etc. may be incorporated according to the requirement of the project.” During the course of hearing, learned counsel for the petitioner has assailed the action of respondent No.1 in altering the eligibility criterion, inter-alia, on the following grounds: -- Firstly, it is alleged that the sudden change in the criterion was directly aimed at helping respondent No.2. In this behalf, it is pointed out that the criterion came to be changed so as to suit only respondent No.2. It is submitted, that as a matter of fact, it would not be incorrect to assert that the changed criterion was tailor made for respondent No.2. Secondly, it is submitted that according to respondent No.1, the aforesaid change in the criterion through the impugned e-mail dated 10.2.2009 (Annexure P-8) was based on the guidelines issued by the Central Vigilance Commission, contained in an office memorandum dated 17.12.2002. It is pointed out, that the guidelines which have been incorporated for the purpose of the present case, relate to purchase contracts and not for the execution of the civil/electrical works. In this behalf, it is pointed out that rather than abiding by the guidelines pertaining to purchase contracts, respondent No.1 has followed the guidelines for the execution of civil/electrical works. Thirdly, it is pointed out, while inviting the Court’s attention to Annexure P-10 appended to the replication filed by the petitioner, that even for execution of civil/electrical works, respondent No.1 is not following the criterion which has been made applicable to the present case. CWP No. 2285 of 2009 4 We have considered the submissions advanced by learned counsel for the petitioner, which have been noticed in the foregoing paragraph. Before dealing with the controversy raised at the hands of the petitioner, pointed reference must be made to the guidelines issued by the Central Vigilance Commission contained in the office memorandum dated 17.12.2002. In this behalf, paragraph 5 of the aforesaid office memorandum, which was relied upon by the learned counsel for the petitioner, is being extracted hereunder: -- “5. The following points must be kept in view while fixing the eligibility criteria: -- A) For Civil/Electrical Works. i) Average annual financial turnover during the last 3 years, ending 31st March of the previous financial year, should be at least 30% of the estimated cost. ii) Experience of having successfully completed similar works during last 7 years ending last day of months previous to one in which applications are invited should be either of the following: -- a) Three similar completed works costing not less than the amount equal to 40% of the estimated cost. or b) Two similar completed works costing not less than the amount equal to 50% of the estimated cost. or e) One similar completed work costing not less than the amount equal to 80% of the estimated cost. CWP No. 2285 of 2009 5 iii) Definition of “similar work” should be clearly defined. In addition to above, the criteria regarding satisfactory performance of works, personnel, establishment, plant, recruitment etc. may be incorporated according to the requirement of the project. B) For Store/Purchase Contracts. Prequalification/post qualification shall be based entirely upon the capability and resources of prospective bidders to perform the particular contract satisfactorily, taking into account their (i) experience and past performance on similar contracts for last 2 years (ii) capabilities with respect of personnel, equipment and the manufacturing faculties (iii) financial standing through latest I.T.C.C. Annual report (balance sheet and profit and loss account) of last 3 years. The quality, delivery and value requirement shall be kept in view, while fixing the PQ criteria. No bidder should be denied prequalification/post qualification for reasons unrelated to its capability and resources to successfully perform the contract.” There is no doubt, whatsoever, that in so far as the guidelines issued by the Central Vigilance Commission are concerned, they were adopted by respondent No.1 for the execution of a purchase contract in the present case, which are depicted for civil/electrical works and not for purchase contract, but we are of the view that the guidelines issued by the Central Vigilance Commission are only directory and not mandatory. It was open to respondent No.1 to adopt the same as per its own convenience. It is not the case of the petitioner, that the guidelines contained in the impugned CWP No. 2285 of 2009 6 e-mail dated 10.2.2009 (Annexure P-8) were either adopted to expressly exclude the petitioner or any other desirous tenderers or to include respondent No.2. The pleadings in the writ petition are bereft of any express allegation against respondent No.1. In this behalf, having examined the guidelines, which have been adopted (as have been extracted hereinabove), we are of the view that the same have a direct nexus to the contract under reference and it is open to a party desirous of purchasing material, to impose conditions and restrictions so as to get the best material, and that too, at the hands of an experienced party. Since we are of the view, that the conditions incorporated through corrigendum dated 10.2.2009 (Annexure P-8) are not arbitrary or malafide, we are satisfied that the claim raised by the petitioner is without any justification. It is apparent from the written statement filed by respondent No.1, that the terms and conditions have been incorporated in the e-mail dated 10.2.2009 (Annexure P-8) by an appropriate application of mind. For the same reasons, as have been noticed hereinabove, the exclusion of similar guidelines while inviting offers in respect of a civil/electrical works vide Annexure P-10, it was open to respondent No.1, based on their past experience, to lay down such terms and conditions as were convenient to it so as to solicit the best offers. For the reasons recorded hereinabove, we find no merit in the instant writ petition and the same is, accordingly, dismissed. ( J.S. Khehar ) Judge (Uma Nath Singh) 25.03.2009 Judge. sk.