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Judgment
On 14.02.2019, the Municipal Corporation, Chhindwara issued short term e-tender notice for "infrastructure upgradation and improvement for commuter safety on Percentage Rate Contract Basis for Chhindwara city".
Clause 51 of NIT/RFP deals with the Scope of Works.
For the sake of convenience, it is reproduced herein below:-
SCOPE OF WORK
The scope of work includes but not limited to:
(a) Survey, Design, Fabrication, Supply, Installation, Maintenance of uniform city signage and variable message signage including ancillary/support infrastructure as per technical specifications provided in the document.
(b) Meet the requirements laid down by the MUNICIPAL CORPORATION, CHHINDWARA.
(c) Successful Contractor shall be responsible for Installation and construction of Active & Static Information System on specified location identified by MUNICIPAL CORPORATION, CHHINDWARA. The maximum time period for completion of the Erection/Installation of all Active & Static Information System shall be Six (6) months.
(d) The Contractor shall also be fully responsible for Maintenance of all Active & Static Information System. Maintenance of all Active & Static Information System will be done as per the standards stipulated in Minimum Development Obligation's (MDO)
(e) The Contractor/Successful Bidder of the Active & Static Information System shall be liable to buy insurance against publicability.
Petitioner, a Private Limited Company is the authorized convertor of M/s. Avery Dennison (India) Pvt. Ltd. for its range of reflective products. According to the petitioner, there are only two manufacturers of Type XI reflective sheeting in India, namely, M/s. 3M India Limited and M/s. Avery Dennison (India) Pvt. Ltd. It is further alleged that the competition in the reflective signage Boards/products is amongst the convertors of these two Companies only.
As per the NIT dated 14.02.2019, the last date of online tender submission form was 27.02.2019. Admittedly, petitioner has not submitted any bid in response to the NIT.
According to the petitioner, NIT is tailor-made to suit the convenience of particular bidder to supply the Static Signages and Variable Message Signages (VMS).
A short reply has been filed by Municipal Corporation, Chhindwara (respondent no.1) denying the allegations.
No reply has been filed by the State Government.
In the reply of Municipal Corporation, Chhindwara, it has been pointed out that Request for Proposal (RFP) was issued on 14.02.2019 and the bid process was completed on 02.03.2019. It was denied that the NIT was tailor made. It is pointed out that the petitioner did not participate in the bidding process, though being a dealer of M/s. Avery Dennison (India) Pvt. Ltd. It is further pointed out that in the bid process, M/s. ARCONS Infrastructure & Constructions (P) Ltd., registered convertor on behalf of M/s. Avery Dennison (India) Ltd was unsuccessful bidder. It is further submitted that the bid process was over on 02.03.2019 but petitioner waited till 05.03.2019 to challenge the NIT. According to the reply, the inordinate delay coupled with the fact that the petitioner did not participate in the bidding is sufficient to throw out the petition. It is also pointed that in the bidding process, there were three bidders and after due application of mind, the bidding process was taken to the logical conclusion.
Shri Tankha, learned Senior counsel appearing for the Intervenor while opposing the writ petition has also pointed out that on 02.03.2019, the bid submitted by the Intervner for Static Signages and Variable Message Signages (VMS) have been accepted and work order has been issued to the Intervener. The copy of the work order has been placed on record. He also contended that no case has been made out for grant of any interim relief. Shri Tankha has also relied on the following observations of the Supreme Court in the case of National Highways Authority of India Vs. Gwalior-Jhansi Expressway Limited reported in (2018) 8 SCC 243 which reads as under:-
"Having failed to participate in the tender process and, more so, despite the express terms in the tender documents, validity whereof has not been challenged, the respondent cannot be heard to contend that it had acquired any right whatsoever. Only the entities who participate in the tender process pursuant to a tender notice can be allowed to make grievances about the non-fulfillment or breach of any of the terms and conditions of the concerned tender documents. The respondent who chose to stay away from the tender process, cannot be heard to whittle down, in any manner, the rights of the eligible bidders who had participated in the tender process on the basis of the written and express terms and conditions. At the culmination of the tender process, if the respondent had not participated, in law, the offer submitted by the eligible bidders is required to be considered on the basis of the stated terms and conditions. Thus, if the claim of the respondent was to be strictly adjudged on the basis of the terms and conditions specified in the subject tender document, the respondent has no case whatsoever."
On the other hand, Shri Neeraj Kumar Jain, learned Senior counsel for the petitioner has placed reliance on the following observation of the Supreme Court in para 24 of the judgment rendered in the case of Rishi Kiran Logistics (P) Limited Vs. Board of Trustees of Kandla Port Trust and others reported in (2015) 13 SCC 233. Para 24 is reproduced herein below:-
"24. In Meerut Development Authority v. Assn. of Management Studies; (2009) 6 SCC 171, the decision related to disposal of public property by an instrumentality of the State. In the said context, the Court inter alia held as follows:
A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated it must be unconditional; must be in the proper form, the person by whom tender is made must be able to and willing to perform his obligations. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. However, a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor made to suit the convenience of any particular person with a view to eliminate all others from participating in the biding process.
The bidders participating in the tender process have no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tenders in a transparent manner and free from hidden agenda. One cannot challenge the terms and conditions of the tender except on the above stated ground, the reason being the terms of the invitation to tender are in the realm of the contract. No bidder is entitled as a matter of right to insist the authority inviting tenders to enter into further negotiations unless the terms and conditions of notice so provided for such negotiations."
After having heard submissions at length and considering the material placed on record, we are of the considered opinion that petitioner cannot be heard to contend that he had any right whatsoever. The petitioner, who chooses to stay away from the tender process, cannot be heard to whittle down in any manner, the right of eligible bidder who had participated in the tender process on the basis of written and express terms and conditions of RFP. Moreover since the work order has already been issued to M/s. Expand, we are of the considered opinion that it would not be in the public interest to allow the petitioner to put a spoke in the wheel and to derail the project for providing Static Signages and Variable Message Signages (VMS) for commuter safety.
In view of the foregoing discussion, we find that no case for interim relief is made out. The prayer for interim relief, therefore, stands rejected.
List the matter on 11.04.2019.