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Judgment
L. Narayana Swamy, J.—These two writ petitions are filed by two different petitioners, but for the similar reliefs, to declare that the action of the respondents 1 to 7 floating limited term tender for boat patrolling without following procedure contemplated under Chapter 4 of the Defence Procurement Manual 2009 is violative of Article 14 of the Constitution of India and direct them to float limited term tenders strictly in terms of Chapter 4 of the Manual and to declare awarding of limited term tender/request for proposal for boat patrolling in favour of respondent No. 8 in both the petitions as null and void and violative of Article 14 & 19(1)(g) of the Constitution.
The case of the petitioners to be stated in brief is that procurement of services is governed by Chapter 4 of Defence Procurement Manual, 2009, hereinafter referred to as ''the Manual'' for short. The authorities are duty bound to follow the procedure contemplated under clause 4.2 of Chapter 4 of the Manual. On earlier occasions, the respondents were calling for tenders by following procedure contemplated under clause 4.2. Now in order to favour their own persons, they have given a go-bye to the said procedure but are unilaterally allotting the same to their own persons.
In the second writ petition, W.P. No. 101386/2015, it is contended, the ban of blacklisting is now removed and therefore the petitioner is eligible to get tender forms.
On the other hand, the respondents 1 to 7 have filed statement of objections denying the petition averments and inter alia contending that clause 4.1.2 of the Manual belongs to Open Tender Enquiry, whereas the Navy is following procedures contemplated under clause 4.3 which belongs to Limited Tender Enquiry. Indian Navy''s constant efforts to upkeep the security of Nation from attack from High Sea. DPM 2009 chapter 4 para 2.2 is regarding procedures to be followed when undertaking Open Tender Enquiry and Para 4.1.2 lays down the procedures as to how an OTE is to be advertised. The Indian Navy reserves right as to how and when as a buyer, Navy will purchase as item or hire services from a vendor. As per DPM 2009 a case can be processed on Open Tender Enquiry or Limited Tender Enquiry. Para 4.3.2(b) of Chapter 4 of the Manual further states that if there are sufficient reasons to be recorded in writing by the competent authority, indicating that it will not be in the public interest to procure the goods through advertised tender inquiry, the buyer can opt for LTE. The respondents also complained of petitioner in the first writ petition not performing the contract properly on the previous occasions and petitioner in the second writ petition lacking in proper requirements to participate in the tender process.
I have heard the learned counsel for the parties and perused the entire records.
Tender period in both the petitions has come to an end. In the first writ petition the tender period was from September, 2014 to December, 2014 and in the second writ petition it was between November, 2014 and February, 2015. Instead of considering validity of the tender that was awarded in favour of Respondent No. 8 in both the writ petitions, it is but proper to consider the second part of the first prayer i.e., whether the respondents 1 to 7 are bound to follow strictly the terms of Chapter 4 of the Defence Procurement Manual, 2009 while floating tenders for patrol boats?
It is not the case of the respondents 1 to 7 that patrol boats is the item which is excepted from one of the following methods of obtaining bids under clause 4.1.1 of the Manual.
(a) Advertised Tender Enquiry (also known as Open Tender Enquiry);
(b) Limited Tender Enquiry; and
(c) Single Tender Enquiry.
In the instant case, the first two methods with which the case is concerned with. Clause 4.2.1 deals with Advertised/Open Tender Enquiry, which reads as follows:
4.2.1 Advertised/Open Tender Enquiry: The Open Tendering system should be the preferred mode for procurement of common use items of generic or commercial specifications which are readily available off-the-shelf in the market from a wide range of sources/vendors. It must be adopted in all such cases in which the estimated value of the tender is more than Rs. 25 lakhs, subject to the exceptions as provided for in this Chapter.
Clause 4.3.1 deals with Limited Tender Enquiry, which reads as follows:
4.3.1 Limited Tender Enquiry: This method may be adopted when estimated value of the goods to be procured is up to Rupees Twenty-five lakhs. Normally, the number of supplier firms in Limited Tender Enquiry should be more than three. However, Limited Tender Enquiry may be resorted to also when there are only two or three known sources of supply.
Clause 4.3.2 deals with Limited Tender Enquiry in Special Circumstances, which reads as follows:
4.3.2 Limited Tender Enquiry in Special Circumstances: Purchase through Limited Tender Enquiry may be adopted even where the estimated value of the procurement is more than Rupees twenty five lakhs, in the following circumstances, subject to approval by the CFA and in consultation with the IFA, where required as per delegation of financial powers:
(a) The indenter certifies that the demand is urgent and any additional expenditure involved by not procuring through advertised tender enquiry is justified in view of urgency. The nature of the urgency and reasons why the procurement could not be anticipated should also be placed on record.
(b) There are sufficient reasons, to be recorded in writing by the competent authority, indicating that it will not be in public interest to procure the goods through advertised tender enquiry.
(c) The sources of supply are definitely known and possibility of fresh source(s) beyond those being trapped is remote.
(d) The nature of item to be procured is such that pre-verification of the competence of the firms and their registration is essential.
The case of the respondents is that they are following the procedure required for Limited Tender Enquiry and therefore they are not required to follow the procedure for Advertised Tender Enquiry/Open Tender Enquiry. The respondents have not placed on record, in the circumstances mentioned in clause 4.3.2 with the approval of CFA, they have adopted Limited Tender Enquiry. It is also not the case of the respondents that there are only two or three known sources for supply of patrol boats. As long as there is no material for due exercise of option, to go through Limited Tender Enquiry, the respondents are bound to adopt the Open Tender Enquiry and the procedure prescribed thereunder. The opening sentence of clause 4.2.1 is to the effect that "The Open Tendering system should be the preferred mode for procurement of common use items of generic or commercial specifications which are readily available off-the-shelf in the market from a wide range of sources/vendors". It is to be mentioned here that the respondents are entitled to opt for Limited Tender Enquiry after following the procedure prescribed under clause 4.3.2 of Chapter 4 of the Manual. Otherwise, the respondents are required to follow the procedure required for Open Tender Enquiry or other procedure as the case may be, as contemplated under Chapter 4 of the Manual. Accordingly the point for consideration is answered.
With the above observations, the writ petitions are disposed of.