Case: M/s. Ganpati RV-Talleres Alegria Track Pvt. Ltd Vs. Union of India &amp; Another

On 7.11.2007 a tender for thick web switches was invited by the Ministry of Railways. The details of the tender items were given in the Schedule of Quantities. As per Clause 2.8 of the terms and instructions mentioned in the tender document, the tender was to be in two packets systems i.e. (i) Technical Bid (ii) Commercial Bid, and that the commercial bid will be opened subsequently only for those tenderers who have been found successful in the technical bid as per clause 4.0. As per Clause 4.1.1 of the tender document the tenderer must be ISO 9001 certified, RDSO approved, for 1 in 12 curved switch manufacturers on the date of opening of tender.The Executive Director Track (P) Railway Board, Delhi, vide his letter dated 14.11.2007 sought for various clarifications and document from the appellants. The reply to aforesaid letter was given by the appellant along with relevant documents on 22.11.2007. The appellant pursuant to telephonic conversation on 21.1.2008 submitted a copy of inspection certificate of RDSO and also certified about its composition i.e., joint venture (in short ‘JV) partners. Another representation was made on 31.1.2008. The appellant received a letter dated 7.2.2008 intimating that in terms of para 2.8 the appellants commercial bid will be opened on 22.2.2008. The respondents vide its letter dated 13.2.08 informed the three of the other bidders whose technical bids were dis-approved and they were requested to collect their unopened commercial bids and bid guarantee bonds amounting to rupees one crore. In continuation of the aforesaid letter another letter dated 20.02.2008 was received by the appellant informing that the opening of commercial bid stands postponed to 03.03.2008 due to administrative reasons. Again a similar letter dated 28.02.08 was received by the appellant intimating that the commercial bid which was scheduled for opening on 03.03.08 is postponed till further notice. The respondents vide letter dated 07.03.2008 stated that appellants offer does not meet the eligibility criteria and hence the commercial bid could not be opened.Therefore, office letter of even no. dated 07.02.2008 issued by the respondents earlier stands cancelled. No reason for rejection was specified.The appellant filed the Writ Petition before the High Court on 11.3.2008 and the court issued notice and stayed the supply of order on 12.3.2008. On 28.3.2008 the counter affidavit was filed by the respondents stating therein the false and unbelievable story of misrepresentation made by the appellant.The respondents contention was that the case of the appellant was wrongly approved by the respondents in the first chance due to misrepresentation made by the appellant and only later on was mistake corrected. According to the appellant, respondents have not disclosed anywhere in the counter affidavit as to what was misrepresented and what was false in the appellants representations which was only made pursuant to the telephonic discussion with the respondents. The appellant brought to the notice of the High Court the cartel formation by filing the rejoinder affidavit on 7.4.2008.The appellant also stated before the High Court about the various gross irregularities overlooked by the respondents by filing CM Application No.5639 Of 2008. The High Court did not consider them holding that these allegations are not part of pleading.The High Court accepted the stand of the respondents that the appellant does not meet the eligibility criteria indicated in the tender. With reference to Clause 2.8, 4.1.1, 4.1.2, 4.2 and 4.3 it was held that the view of the respondents that the appellant did not fulfil the eligibility criteria cannot be faulted. Accordingly, the writ petition was dismissed.

Reasoning: Keeping in view the circumstances referred to above, the course that commends us is that, while maintaining the contract awarded to Respondent 4 in respect of the directories for the years 1993 and 1994, the said contract may be set aside insofar as it relates to the directory for the year 1995 and fresh tenders may be invited for award of the contract for the directory for the year 1995. The appeal filed against the judgment and order of the Delhi High Court dismissing the writ petition of the appellants must therefore, be allowed in the above terms. The other appeal has been filed by the appellants against the order of the Delhi High Court dismissing CM No.6120 of 1993 which was an application for an interim relief during the pendency of the writ petition in the High Court. In view of the final order that is being passed in the writ petition the application for interim relief has become infructuous and the appeal against the order dismissing CM No. 6120 of 1993 must, therefore, be dismissed asthat view of the matter the inevitable conclusion is that the view taken by the High Court that the appellant did not fulfil the eligibility criteria was not correct. The High Court was not justified in dismissing the writ petition. We direct the Evaluation Committee to consider the bid of the appellant alongwith two persons who had been selected and take a final decision