skc 1 WP-8723-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8723 OF 2011 Filter Manufacturing Pvt. Ltd. & Anr. ..Petitioners versus Maharashtra State Power Generation Company Limited & Ors. ..Respondents Mr. Suman Dutt and Mr. Supratim Laha i/b. Mr. Sachin S. Gite for Petitioners. Mrs. A. R. S. Baxi for Respondent Nos. 1 to 6. Mr. V. S. Gokhale - Assistant Government Pleader for State – Respondent No. 10. CORAM : D. D. SINHA AND SMT. V. K. TAHILRAMANI, JJ. 21 October 2011 P.C. : Heard the learned counsel for the petitioners, the learned counsel for the respondent nos.1 to 6 and the learned Assistant Government Pleader for the respondent no. 10. 2. Counsel for the petitioner has submitted that the respondent no.1 has issued tender notice in July 2011 whereby tenders are invited for supply of skc 2 WP-8723-11 the following two items : i. Compact Cell Fine Filter. Outer dimensions of compact cell frame 592 mm x 592 mm x 292 mm Filter Size 562 mm Filter size 562 mm x 562 mm x 270 mm depth. Each set comprising of 400 numbers. ii. Pad type Pre-filters for 4 x 108 MW Units It is submitted that the petitioners has submitted tender for supply of both these items. It is contended that as per the condition of tender the lowest acceptable tenderer shall be given minimum 60% of the total requirement subject to his capacity and capability and remaining quantity will be allocated amongst the bidders whose quoted price(s) are within 10% and have matched with Lowest Acceptable Tenderer, in inverse proportion to the prices quoted by them above the Lowest Acceptable Tenderer, subject to their capacities. 3. Counsel for the petitioners has submitted that so far as the tender of the petitioner no. 1 in respect of supply of item Pad type Pre-filters for 4 x 108 MW Units is concerned, the petitioner was L-1 tenderer and therefore the tender of the petitioner no. 1 was accepted and the same is finalised in favour of the petitioner no. 1. The petitioners is directed to supply 100% of skc 3 WP-8723-11 the quantity. 4. Counsel for the petitioners further contended that the grievance of the petitioners is in respect of non consideration of the tender of the petitioners in respect of supply of Compact Cell Fine Filter as per the terms and conditions of the tender, referred to herein above. It is contended that the petitioner no.1 is L-2 tenderer and therefore entitled to be considered for supply of the said item within the 40% quota as per the procedure stipulated in this regard, as referred to herein above. It is contended that the respondents Authorities accepted the tender of the respondent no. 7 who was L-1 tenderer in respect of supply of item Compact Cell Fine Filter and given it a contract for supply of the said item to the extent of 100%. It is contended that as per the condition of tender, the respondent no. 1 was entitled to issue order of supply of the said item only to the extent of 60% of the total requirement of the said item subject to capacity and capability of the respondent no. 7 and remaining 40% was required to be allotted to the person like the petitioner no. 1 who was / is L-2 tenderer as per the procedure stipulated in this regard. It is contended that failure to follow procedure stipulated in the tender condition by the respondent no.1, the petitioners have filed the present petition challenging the action of allocation of 100% contract for supply of Compact Cell Fine Filter to the skc 4 WP-8723-11 respondent no. 7, which is bad in law. 5. Counsel for the respondent nos. 1 to 6 on the other hand has supported the action of the respondents Authorities in finalising the tender of the respondent no. 7 so far as supply of item Compact Cell Fine Filter is concerned. It is further contended that the action of the respondents Authorities is completely consistent with the terms and conditions of the tender document and therefore the contentions canvassed by the counsel for the petitioners is bad in law. 6. Considered the contentions canvassed by the counsel for the respective parties and perused the relevant conditions of the tender document, which reads thus: “The lowest acceptable tenderer shall be given minimum 60% of the total requirement subject to his capacity & capability. The remaining quantity will be allocated amongst the bidders whose quoted price(s) are within 10% and have matched with Lowest Acceptable Tenderer, in inverse proportion (as per the illustrative given in Annexure – A1) to the prices quoted by them above the Lowest Acceptable Tenderer, subject to their capacities. In case, Annexure ‘C-2’ is called from the bidder, the further remaining quantity will be allocated skc 5 WP-8723-11 amongst all such bidders who have subsequently agreed to match with the prices of Lowest Acceptable Tenderer, in inverse proportion to the prices quoted by them above the Lowest Acceptable Tenderer.” 7. In the instant case it is not in dispute that the petitioner no.1 has submitted tenders for supply of the two different items, as referred to herein above. It is also not in dispute that the petitioner no.1’s tender for supply of Pad type Pre-filters for 4 x 108 MW Units has been accepted by the Authorities, being L-1 and already finalised the contract for 100% supply of the said item. The grievance of the petitioners is in respect of non consideration of the tender of the petitioners by the Authorities in respect of supply of Compact Cell Fine Filter from the 40% quota. 8. Perusal of the above referred condition of tender clearly demonstrates that the lowest acceptable tenderer is required to be given minimum 60% of the total requirement subject as per his capacity and capability. Condition is loud and clear and self explanatory. In other words, Authorities are duty bound to give minimum 60% of the total requirement of the subject to the L-1 tenderer whose tender is accepted by the Authorities based on his capacity and capability however the Authorities are not prohibited from granting contract for supply of such item to the extent of 100%. There is no other condition of tender is shown to us by the counsel for the petitioners skc 6 WP-8723-11 which prohibits the Authorities to finalise the contract in favour of L-1 tenderer beyond the minimum quantity of 60% stipulated in the condition referred to herein above. In absence of any prohibition in this regard stipulated in the tender document, it is difficult for us to agree with the contentions canvassed by the counsel for the petitioners in this regard. 9. So far as the requirement of allocation of quota from 40% is concerned, such contingency would arise only if the Authorities finalises the tender of L-1 tenderer for supply only 60% of the total requirement of the subject (items) but not otherwise. As we have already observed that the minimum quantity to be allocated in favour of L-1 tenderer is 60%, however there is no prohibition to allocate quantity beyond 60% to L-1 tenderer which may go upto 100%. 10. In the instant case the Authority has accepted the tender of the petitioner no.1 for supply of Pad type Pre-filters for 4 x 108 MW Units being L-1 tenderer and allocated the contract for supply of the said item to the extent of 100%. Similar is the situation in respect of tender of the respondent no. 7 for supply of Compact Cell Fine Filter. The respondent no. 7 being L-1 tenderer and there is no prohibition in finalising the contract for supply of the said item to the extent of 100%, we are of the view that the skc 7 WP-8723-11 action of the respondents Authorities in finalising the tender of the respondent no. 7 to the extent of 100% supply of subject matter cannot be said to be bad in law or inconsistent with the above referred terms and conditions of the tender document. 11. For the reasons stated herein above no case is made out for showing indulgence. Writ petition is dismissed. (D. D. SINHA, J.) (SMT. V. K. TAHILRAMANI, J.)