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The petitioners seek cancellation of the tender floated by the Airport Authorities of India in respect of a restaurant at Bagdogra Airport and the tender of the respondent no. 4 submitted with regard thereto.
Learned Advocate for the petitioners submits that, the respondent no. 4 does not have the essential qualification to participate in the tender. He refers to the notice inviting tender and particularly clause 6 thereof. He submits that, the respondent no. 4 does not have a restaurant or hotel business of its own. He submits that, the respondent no. 4 having carried on such business continuously for more than three years does not arise. The respondent no. 4 does not have a valid food licence issued by the competent authority. He refers to the various balance-sheets, Auditor''s report as well as Director''s reports of the respondent no. 4 and submits that, the primary business of the respondent no. 4 is that of a building construction. He refers to the objects clause of the Memorandum of Association of the respondent no. 4 and submits that, hotel business is not within the objects clause of the Memorandum of Association of the respondent no. 4. Therefore, the respondent no. 4 is not qualified to enter into a contract for hotel business. The Airport Authority of India (AAI) ought to have considered the tender of the respondent no. 4 in such perspective and ought to have disqualified the respondent no. 4. He submits that, the respondent no. 4 was incorporated on September 2, 2011. A period of seven years has not elapsed from the date of its incorporation.
Learned Senior Advocate appearing for the respondent no. 4 submits that, the respondent no. 4 is operating since 2011 in terms of the Certificate of Incorporation issued in its favour. He refers to the objects clause of the Memorandum of Association of the respondent no. 4 and submits that, the respondent no. 4 is authorized to establish and operate hotel business and to do anything of any nature which may seem to the company capable of being conveniently carried on or done in connection with such objects clause of the company. He submits that, the respondent no. 4 has the requisite eligibility of carrying on restaurant/hotel business for a period in excess of three years within the period of last seven years. He refers to the terms and conditions of the notice inviting tender and submits that, a tenderer has to have three years experience in the last seven years. It is not essential to carry on business for seven years. Rather it is essential to have experience of three years within the last seven years. The respondent no. 4 has such experience as it is evident from the document submitted along with the tender. He relies upon 1999 Volume 1 Supreme Court Cases page 492 (Raunaq International Ltd. v. I.V.R. Construction Ltd. & Ors.) and All India Reporter 1986 Supreme Court 1527 (Shri Harminder Singh Arora v. Union of India & Ors.) in support of his contentions.
Learned Advocate appearing for the respondent nos. 1, 2 and 3 of the writ petition submits that, the petitioner is the fourth lowest tenderer and not the third lowest tenderer as erroneously claimed by the petitioner. The tender has been awarded in favour of the respondent no. 4 on January 11, 2017 after scrutinizing all documents filed by the tenderers including the respondent no. 4. He makes over a bunch of documents to the Court to establish that the respondent no. 4 has required three years experience within the last seven years as stipulated in clause 6 of the notice inviting tender. He submits that, the respondent no. 4 has been requested to continue with the restaurant on a temporary basis till March 31, 2017.
Does the respondent no. 4 have the requisite qualification as contemplated under clause 6 of the notice inviting tender is the primary issue falling for consideration in this writ petition. The respondent No.1 had issued a tender for Airport restaurant facility at the terminal building at Bagdogra Airport on October 4, 2016. There were number of participants. The petitioner and the respondent no. 4 are the parties in such tender. The notice inviting tender specifies various qualifications to be fulfilled by a tenderer. Clause 6 of such notice inviting tender is relevant to the present writ petition. Clause 6 is as follows:-
"6. Parties/individuals fulfilling the following criteria are eligible to participate in the Tender:
(Bidders shall upload scanned copy of following documents in readable form at AAI e-tender portal corresponding to each criterion mentioned below:)
a. The experience should be 03 (three) years during the last 07 (seven) years in same type business.
b. The Party/Parties should have an Annual Gross Turnover equivalent to 6 months MRLF (i.e. Rs.3,50,000/- X 06 = Rs.21,00,000/-).
c. A maximum of 90 days gestation period or actual commencement of commercial operation whichever is earlier will be allowed.
d. Licence fee subject to be compounded with escalation of 10% Per Annum for the 2nd & 3rd Year. On completion of 3rd year the escalation on Licence fee will be subject out review. Review will be done on the basis of passenger movement.
e. The licensee shall pay the charges for the consumption of the electricity consumed for the purpose of sue of said license as become due and payable and in accordance with the directions of the Authority and at the rates as fixed by AAI from time to time.
f. The party/parties not having their own restaurant/hotel business but they are in the field of similar business with other party for continuously for more than 03 (three) years. For this the party shall valid copy of similar business agreement towards his share to be produced with complete financial report to verify the GTO as per NIT clauses.
g. The party/parties having valid food licence issued by competent authority of State/Central Govt. and having at least three (03) years experience during last seven (07) year in Restaurant/Hotel Business in his/its own name/s.
(Scanned copies are to be attached)"
The respondent no. 4 is found to be the lowest tenderer and has been awarded the tender by a writing dated January 11, 2017. The eligibility of the respondent no. 4 is questioned on various grounds. The first ground is that the respondent no. 4 does not have a restaurant business in its objects clause and, therefore, it is incompetent to participate in the tender. The first impugned objects clause of the Memorandum of Association of the respondent no. 4 allows it to carry on the business to establish, operate any hotel, rest house or guest house. The first incidental and ancillary objects clause of the Memorandum of Association of the respondent no. 4 allows it to do anything of any nature which may seem to the company capable of being conveniently carried on or done in connection with the impugned object clause. Therefore, as the object clause of the respondent no. 4 stands, it is competent to carry on the business of a hotel or a restaurant. The Auditor''s report to the balance sheet of the respondent no. 4 speaks of the respondent no. 4 being engaged primarily in the business as contractor. Such Auditor''s report does not say that the respondent no. 4 is not carrying on any business of restaurant or hotel. The respondent nos.1, 2 and 3 have made over the documents to establish that the respondent no. 4 was awarded contract by IRCTC and that the respondent no. 4 is operating similar restaurants at other airports in India. Such document also establishes that, the respondent no. 4 is carrying on a business for a period of three years within the last seven years. The respondent no. 4, therefore, has requisite qualification in terms of clause 6 of the notice inviting tender to participate in such tender.
The respondent no. 4 is found to be the lowest tenderer. This finding that the respondent no. 4 is the lowest tenderer, is not assailed. The respondent no. 4 having the requisite qualification and it being the lowest tenderer, the action of the respondent no. 1 in awarding the tender in favour of the respondent no. 4 by the writing dated January 11, 2017, therefore, cannot be faulted.
The first petitioner claims to be the third lowest tenderer. It is not so as would appear from the documents made over to Court by the respondent nos. 1, 2 and 3. It is the fourth lowest tenderer. The second and the third lowest tenderers have not been made parties to the proceedings.
Shri Harminder Singh Arora (supra) is of the view that, if an authority invites a tender, then it must abide by the result of the tender.
Raunaq International Ltd. (supra) is of the view that, the award of a tender cannot be stayed at the instance of a party who does not fulfil the requisite criteria and who is not lowest tenderer.
In such circumstances, I find no merit in the present writ petition. W.P. No. 4793 (W) of 2017 is dismissed. No order as to costs.
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