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Judgment
R.K. Merathia, J.—Heard the parties.
Petitioner has prayed for a direction to open it''s price bid submitted pursuant to the notice inviting Lender (NIT for short) issued by the Jharkhand State Electricity Board, Ranchi being NIT No. I45/PR/ JSEB/2003 (Annexurc-2) in all the three packages being Packages A, B and C.
The grievance of the petitioner is that the concerned respondents have not opened it''s price without assigning any reason and without responding to any of the letters dated 8.12.2003 (Annexure-6/1). letter dated 30.1.2004 (Annexure-9) and legal notice dated 27.2.2004 (Annexure-10); although, the petitioner satisfies all the technical and commercial requirements of the NIT. It is submitted that the said action is arbitrary and mala fide and is motivated in order to favour the other bidders.
The main dispute is whether petitioner fulfilled the qualifying criteria No. 7 of the NIT which reads as follows :-
"7.0 The bidder should possess latest 132 KV-3 phase double circuit Transmission Line Tower design, as per latest IS ; 802/1995 suitable for wine zone for the State of Jharkhand. The Tower design should be tested from recognized test bed of any Government Organisation."
It appears that by letter dated 24th November, 2003, (Annexure-6) respondent No. 5 RITES Limited, informed the petitioner that during the scrutiny of petitioner''s offer certain deficiencies/discrepancies mentioned in the said letter were found and petitioner was requested to supplement its offer with the required documents/information latest by 8.12.2003, failing which petitioner''s bid shall be liable for rejection.
By letter dated 8th December. 2003 (Anncxure-6/1), petitioner replied, inter alia, as follows :
"Please note that the government test beds such as CPRI, Bangalore, SERC, Chennai and Richardson and Cruddas, Nagpur are our competitors for testing of towers and hence you would appreciate that there is no need for us to test the towers at their test beds as we have one of the world''s best tower testing facilities approved by Government of India and International Power Utilities/Consultants.
However, we have considered that Tower Test for this project will be carried out by us at CPRI Banglore and/or SERC Chennai and/or R and C Nagpur and/or our in-house Tower Test, facilities as desired by Jharkhand State Electricity Board and availability for test beds to suit programme/schedule of execution for this project."
Learned counsel for the petitioner pointed out several documents to show it''s credentials. His main thrust is that in the aforesaid situation, petitioner fulfilled the said criteria No. 7 as it has got it''s own test bed recognized by the concerned departments of the Central Government.
As per the said criteria No. 7 of the NIT, the bidder should possess latest Transmission Line Tower Design suitable for wind zone for the State of Jharkhand tested from recognized test bed of any Government Organisation. Petitioner''s case is that it has not its own test bed which is recognized by the departments of the Central Government but admittedly petitioner did not furnish the required design tested from recognized test bed of any Government Organisation.
Learned counsel for the respondents pointed out that in its letters dated 8.12.2003 and 30th January. 2004. petitioner offered that the Tower test will be carried as desired by the Jharkhand State Electricity Board but in its legal notice, petitioner changed its stand and asserted that it satisfies all the technical and commercial conditions of NIT. If was further submitted that "petitioner is delaying this important project on untenable pretexts. It was also submitted that price bid has been opened on 28.4.2004.
Learned counsels further pointed out to the minutes of the Tender Committee Meeting held on 8.1.2004 (Annexure-R/3) to show that the Tender Committee considered all the aspects of the matter of the tenderers and disqualified the petitioner on the ground that petitioner is not in possession of the required design duly tested from recognized test bed of any Government Organisation, whereas other tenderers have qualified on this score.
In reply, learned counsel for the petitioner pointed out to the following portion of the said Annexure, which reads as follows :-
".....Constn. (P) Ltd. for use of the tested design. Validity of MOU has been confirmed vide letter No. RPC/ATSL/ 04107 dated 2.1.2004 (page No. 167 of tender file) Tender Committee observed that by this arrangement, the firm meets the qualifying criteria because the arrangement tantamounts to purchase of the tested design for the specific project."
It was submitted that some arrangement on the basis of some MOU could not be said to be fulfilling the said qualifying criteria on the ground that the said arrangement tantamount to purchase of the tested design for the project in question. He further argued that in view of the credentials of the petitioner and the offer made by it, petitioner should have been given a chance to qualify in the technical bid.
It appears that one of the bidders has submitted MOU, under which he purchased the required tested design. Therefore, it cannot be said that the said tenderer is not possessing the required design.
After considering the entire facts and circumstances of the case, it appears that on doubt the petitioner has got impressive credentials but it has not fulfilled the said criteria No. 7. even though it offered to fulfill the same.
Regarding strict adherence to the pre-qualifications in tender matters, the
Hon''ble Supreme Court in the case of West Bengal State Electricity Board Vs. Patel Engineering Co. Ltd. and Others, observed as follows :-
"In a work of this nature and magnitude where bidders who fulfil pre- qualification alone are invited to bid, adherence to the instructions cannot be given a go-by by branding it as a pedantic approach, otherwise it will encourage and provide scope for discrimination, arbitrariness and favourtism which are totally opposed to the rule of law and our constitutional values. The very purpose of issuing rules /instructions is to be ensure there enforcement lest the rule of law should be a casualty. Relaxation or waiver of a rule or condition, unless so provided under the ITB, by the State or its agencies (the appellant) in favour of one bidder would create justifiable doubts in the minds of other bidders, would impair the rule of transparency and fairness and provide room for manipulation to suit the whims of the State agencies in picking and choosing a bidder for awarding contracts as in the case of distributing bounty or charity. In our view, such approach should always be avoided. Where power to relax or waive a rule or a condition exists under the rules, it has to be done strictly in compliance with the rules. We have, therefore, no hesitation in concluding that adherence to the ITB or rules is the best principles to be followed, which is also in the best public interest."
In the result, I find rib merit in this writ application, which is accordingly dismissed.