1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.4781 OF 2008 (Tirathsingh Bhatia and others vs. Food Corporation of India and others) __________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : D.D. SINHA AND A.P. BHANGALE, JJ. DATED : APRIL 17 & 24, 2009 Heard Shri Parsodkar, learned Counsel for the petitioners, Shri Deshpande, learned Counsel for the respondents Nos. 1 to 3 and Shri Parchure, learned Counsel for the respondent No. 4. 2) So far as the grievance of petitioner No. 1 is concerned, the learned Counsel for the petitioners submits that pursuant to the tender notice dated 31/7/2008 issued by respondent No. 1, the tenders were invited for transportation of food grains from Gondia Railway Station to various 2 depots of Food Corporation of India. It is contended that the petitioner no.1 along with others submitted tender within time and was eligible in view of terms and conditions of the tender to get the work under tender. It is submitted that the tender of the petitioner no.1 came to be rejected by respondent No. 1 on the ground that the petitioner no.1 failed to submit valid certificate of registration issued by the competent authority under the Bombay Shops and Establishments Act, 1948. It is further submitted that the said condition, in fact, is not relevant for the purpose of work under the tender. It is contended that the certificate submitted by petitioner No. 1 was by way of abundant caution though it was not required under the provisions of the Bombay Shops and Establishments Act, 1948. It is further contended that rejection of the tender by respondent No. 1 on this count is bad in law. 3) The learned Counsel for the petitioners further submits that the other grounds given by respondent No. 1 for rejecting tender of the petitioner no.1 were not essential eligibility conditions and, therefore, the rejection in view of those grounds is also not sustainable in law. 3 4) Shri Deshpande, learned Counsel for respondent Nos. 1 to 3, supports the decision of the authorities of rejecting tender of the petitioner no.1. It is contended that as per essential eligibility criteria, petitioner No. 1 was required to submit certain documents along with the technical bid. One of such documents was valid Registration Certificate issued by the authority under the Bombay Shops and Establishments Act, 1948. It is contended that petitioner No. 1 though submitted the said certificate, however, the validity of the said certificate expired in the year 1999 and, therefore, the said certificate of registration being invalid, respondent No. 1 did not open the price bid of the petitioner no.1. It was further contended that there are other reasons also for not opening the price bid of the petitioner no.1. However, the main ground is as stated above. 5) We have considered the contentions canvassed by the respective Counsel and perused the tender document. In the instant case, as per the tender notice, the bidders were required to submit documents along with technical bid. One of them was valid certificate of registration under the Bombay Shops and Establishments Act, 1948. It is not in dispute that the certificate submitted by petitioner No. 1 4 along with technical bid, issued under the Bombay Shops and Establishments Act. 1948 was valid only upto 1999. Since petitioner No. 1 failed to submit the valid certificate of registration under the Bombay Shops and Establishments Act, 1948 for the relevant year along with technical bid, the action of respondent No. 1 of not opening the price bid of the petitioner no.1 on this count, in our view, appears to be consistent with the requirement of conditions of tender and, therefore, no interference is called for. 6) Shri Parsodkar, learned Counsel for the petitioners, further states that the petitioner no.2 submitted his tender along with other persons. It is the case of the petitioner no.2 that he submitted work experience certificate along with technical bid as required under Clause (1) of the tender document, which deals with work experience for preceding three years. It is contended that certificate submitted by the petitioner no.2 in order to show work experience is consistent with the said condition of the tender document. It is also contended that the certificate submitted by the petitioner no.2 shows that the value of the work performed by the petitioner was not less than 50% of the estimated value of the present contract and, therefore, 5 respondent nos. 1 to 3 ought to have accepted the said certificate as a valid work experience certificate and ought not to have disqualified the petitioner. 7) Shri Deshpande, learned Counsel for the respondent nos.1 to 3, states that condition relating to work experience for preceding three years as stipulated in the tender document is as follows : “(1) Work Experience : for preceding three years- Enclose experience certificate for rake handling and transportation duly obtained from Manufacturer/Handling Agency/Govt. Deptt/ PSU/ Public Ltd. Company dealing in fertilizers, foodgrains, cement or similar products during the preceding three years of which the value of single contract should not be less than 50% of the estimated value of present contract (for amount, please refer press advertisement with respect to corresponding centre) in any of those three years, otherwise work experience will not be considered.” It is contended that the work experience certificate submitted by the petitioner no.2 along with technical bid was not of rake handling and transportation, but of handling and transportation of the goods from Central Warehouse, Gondia 6 to other Warehouses. It is submitted that so far as work under contract is concerned, the Contractor ought to have experience of unloading of the foodgrain bags from wagons at Railway Station/Railway sidings. It is contended that the certificate submitted by the petitioner no.2 is not consistent with the terms and conditions of the tender document and, therefore, the respondent no.1 did not open the price bid of the petitioner no.2. It is further contended that petitioner no.2 also did not fulfill other criteria in respect of experience as required. 8) We have considered the contentions canvassed by the learned Counsel for the parties. It is not in dispute that the petitioner no.2 submitted certificate dated 2.8.2008 issued by the Warehouse Manager, Central Warehouse, Gondia, which reads thus : “Certificate - Certified that the M/s. Nandkishor Agrawal was our H&T Contractor for FCI Stock at Central Warehouse, Gondia since 22.3.2007 to 31.7.2008. He has good knowledge and experience of H&T work. Total turn-over of Rs.98,13,074/- (Rs. Ninety eight lakhs thirteen thousand seventy-four only) during the tenure of his period.” 7 As per conditions of tender, work experience certificate required is specifically of rake handling and transportation and nature of work required to be handled by the Contractor is also mentioned in Part I of the tender document, i.e. unloading the bags of foodgrains from wagons placed at Railway Station/ Railway Sidings, etc. The nature of work under tender required specific experience of loading and unloading of foodgrains at the Railway Station/ Railway Sidings and, therefore, the certificate, required to be submitted was in respect of the experience in the said field. It is not in dispute that the certificate, which was submitted by the petitioner, shows that the petitioner had experience of handling and transportation of goods from the Central Warehouse to other Warehouses only. The nature of work under tender being a specialised one, the said condition, in our view, was the essential condition of the tender document. Consequently, the action of the respondent no.1 not opening the price bid of the petitioner appears to be consistent with the terms and conditions of the tender. In the circumstances, no case is made out for showing indulgence. 9) Shri Parsodkar, learned Counsel for the petitioners, submits that the petitioner no.3 submitted his 8 tender along with other persons. It is contended that the petitioner submitted certificate dated 8.8.2008 issued by the ACC Ltd., which shows that petitioner no.3 fulfills the necessary criteria of work experience as required under the relevant condition of tender and, therefore, the action of the respondent nos. 1 to 3 not opening the price bid of the petitioner no.3 is bad in law and hence, cannot be sustained. 10) Shri Deshpande, learned Counsel for the respondent nos. 1 to 3, states that the certificate submitted by the petitioner no.3 only shows that the petitioner no.3 was the authorized Carrying and Forwarding Agent and Road Transporter at Gondia and had handled and transported goods during preceding three years for the value mentioned therein. It is submitted that the work experience certificate as required under the essential terms and conditions of the tender was the experience certificate of rake handling and transportation. The nature of work under contract involves unloading of foodgrains bags from the wagons at Railway Station/Railway Sidings and then transportation of the same to various Depots of Food Corporation of India and, therefore, the Contractor having specific experience in the field was required to submit the tender along with the said 9 certificate. The petitioner no.3 did not fulfill the essential eligibility condition and, therefore, price bid of the petitioner no.3 was not opened. It is submitted that there are other grounds also on which price bid of the petitioner no.3 was not opened. 11) We have considered the contentions canvassed by the respective Counsel for the parties and perused the relevant essential conditions pertaining to technical expertise. The nature of work under contract being a specialized work, the essential condition of tender required tenderer to submit experience certificate for rake handling and transportation from the authorities mentioned in the said condition and the value of single contract should not be less than 50% of the estimated value of the present contract. The certificate submitted by the petitioner no.3, which is on record, shows that petitioner no.3 was only authorized Carrying and Forwarding agent and road transporter at Gondia. The certificate is completely silent whether the petitioner no.3 in fact had any experience of rake handling and transportation. Looking to the nature of contract, condition of certificate is essential eligibility criteria, which is not fulfilled by the petitioner no.3, hence, the action of the 10 respondent nos. 1 to 3 not opening the price bid of the petitioner no.3, in our view, appears to be consistent with the conditions of the tender. No case is made out for showing indulgence. 12) Shri Parsodkar, learned Counsel for the petitioners, states that the petitioner no.4 submitted his tender along with other persons. It is contended that the petitioner no.4 submitted a copy of the partnership deed and Bank Statement as required under tender conditions and fulfilled all other essential eligibility criteria and, therefore, action of the respondent nos. 1 to 3 not opening the price bid of the petitioner is unsustainable in law. 13) Shri Deshpande, learned Counsel for the respondent nos. 1 to 3, states that partnership firm of the petitioner no.4 on the date of submission of the tender was not registered and, therefore, copy of the partnership deed submitted by the petitioner no.4 was held to be not valid. It is contended that the petitioner no.4 had also not submitted the certificate issued by the competent Authority under the Bombay Shops and Establishments Act, 1948, which is also another eligibility condition under the tender document. 11 Similarly, the petitioner no.4 also did not submit Bank Statement from the Bankers for the last six months. It is submitted that all the three eligibility conditions were not fulfilled by the petitioner no.4 and therefore, respondent no.1 was justified in not opening price bid of the petitioner no.4. 14) We have considered the contentions canvassed by the learned Counsel for the parties. It is not in dispute that partnership deed submitted by the petitioner no.4 was an un-registered partnership deed. Similarly, petitioner no.4 did not submit certificate of registration issued under the Bombay Shops and Establishment Act as well as Bank statement for last six months. All these three conditions were essential conditions under the tender document and since petitioner no.4 did not fulfill the same, action of the respondent no.1 not opening the price bid of the petitioner no.4, in our view, is just and proper and consistent with the terms and conditions of the tender document. No case is made out for showing indulgence. 15) Shri Parsodkar, learned counsel for the petitioners, submits that the Respondent- Food Corporation of India, having found that out of five, four 12 tenders were disqualified, ought to have cancelled the tender process and fresh tender process should have been initiated. It is contended that the tender submitted by Respondent No.4 is above 256% of the upset price and, therefore, this is another ground why the Food Corporation of India (in short “FCI”) should have initiated the fresh tender process. It is submitted that though the tenders submitted by the petitioners, because of the shortcomings, came to be rejected by the FCI, however, this should not be the ground for accepting the sole tender without going for fresh tender process to attract more competition. 16) Shri Deshpande, learned counsel for the respondent nos. 1 to 3, states that the total number of tenders received were five in number, out of which the tender submitted by the petitioners (four in number) were rejected. It is contended that after rejection of four tenders, the only valid tender remained in the field was that of respondent no.4, which was accepted by the FCI. It is contended that the bid submitted by respondent no.4 though was 256% above the upset price, however, the tender submitted by respondent no.4 was the only valid 13 tender in the field and, therefore, the bid was accepted. It is further contended that for the earlier two years period, the contract was given at the rate 213% above the upset price. It is, therefore, contended that the decision taken by the FCI is neither arbitrary nor mala fide and is sustainable in law. 17) Shri Parchure, learned counsel for respondent no.4, states that after rejection of four tenders by the FCI, the tender submitted by respondent no.4 was the only valid tender and, therefore, was rightly accepted by the FCI. It is contended that the respondent no.4 is working with FCI for last two years and so far as the last contract is concerned, which was awarded by FCI, was at the rate which was 213% above the upset price. 18) We have considered the contentions canvassed by the respective counsel for the parties. In the instant case, it is not in dispute that the total number of tenderers were five, out of that after opening of the technical bid, the respondent-FCI has found that the tenders submitted by the four petitioners did not comply with the essential eligibility conditions of tender, hence, their price bid was 14 not opened. The tender submitted by respondent no.4 was the only tender which was valid and, therefore, was accepted by the FCI. It is no doubt true that the Authorities while issuing public tenders are required to see that that there is proper and adequate competition. Mr Deshpande, learned counsel for the respondent FCI, has submitted that in the instant case, the contract pertains to loading and unloading of foodgrains and transportation from the Railway sidings to FCI godowns and, therefore, because of the urgency in the matter and considering the eligibility of respondent no.4, the tender of respondent no.4 was accepted. It is also not in dispute that the earlier contract executed by respondent No.4 was at the rate which was 213 % above the upset price mentioned in the said tender notice. It is brought to the notice of this Court that the upset price which is reflected in the present tender notice is same which was reflected in the earlier tender notice. 19) In the instant case, respondent no.4 filed a pursis dated 23.4.2009, which is taken on record, wherein it is mentioned that he is ready to execute the work under tender at the rate on which the earlier contract of 15 transportation of foodgrains was executed between the FCI and present respondent no.4 i.e. 213% above the upset price. Mr Deshpande, learned counsel for Respondents 1 to 3 states that the reduction in the rate by respondent no.4 will benefit the FCI. 20) Taking into consideration the overall view of the matter, similarly the urgency involved as well as reduction of rate by respondent no.4 as mentioned herein- above, we direct the Respondent-FCI to cancel the contract dated 13.11.2008 and execute a fresh contract for the period mentioned in the tender notice dated 31.7.2008, i.e. for the period commencing from 14.11.2008 to 13.11.2010 at the old rate i.e. 213% above the upset price on the same terms and conditions. However, in future, we expect FCI to take proper care to see that there will be proper and adequate competition. 21) For the reasons stated hereinabove, the petition is dismissed. We expect the respondent FCI to execute a fresh contract for execution of work under tender in question as per observations made by us in the present order and as agreed by the respondent no.4. The duration 16 of the contract should not be changed. JUDGE JUDGE khj