AI Structured Summary
Not yet generated for this judgment
Judgment
By way of the present petition the petitioner challenged the action of the respondents in rejecting its bid proposal.,,,,
Briefly recapitulating the facts leading to the filing of the present petition are that an Online Open Tender dated 25th August, 2015 was released",,,,
by the respondent No. 1 for the supply, installation and commissioning of Gas Pipeline and Manifold System (including operation for 10 years) on",,,,
Turnkey basis as stated in the Tender. The last date for submission of tenders/bid documents and also for opening of the Techno-Commercial Bids,,,,
was fixed on 26th October, 2015.",,,,
The petitioner submitted the two tier bids comprising of the Techno-Commercial Bids and Price Bids on 21st October, 2015.",,,,
General Instructions to the Tender also provides for Earnest Money Deposit (EMD) by the intending Tenderers and as per Clause 19.2 of the,,,,
Tender document, the tenderers registered inter alia with the National Small Industries Corporation Limited (NISC) were eligible for exemption",,,,
from payment of the EMD amount of Rs. 30 lakhs.,,,,
The petitioner, being registered with the NSIC and being in possession of the NISC Government Purchase Certificate dated 24th September,",,,,
2015, sought exemption from payment of the EMD amount. The petitioner thus participated in the tender process without depositing the EMD",,,,
amount.,,,,
It is stated that before opening the technical bids, the respondents in a very clandestine manner wrote an e.mail on 24th November, 2015 to the",,,,
NSIC seeking clarification from them as to whether the petitioner company was eligible for exemption from payment of EMD. The petitioner,,,,
contended that this communication by the respondents was completely unwarranted and uncalled for.,,,,
It is further stated that in response to the e.mail dated 24th November, 2015 the NSIC sent a reply dated 30th November, 2015 that as per the",,,,
policy all registered MSE units supplying goods and services are inter alia eligible for the benefit of exemption from payment of EMD as mentioned,,,,
in Clause 10 of the said Policy.,,,,
The petitioner further stated that as per one of the terms of the Tender, the tenderer had the option to supply components or parts of foreign",,,,
origin and in lieu of the same they had to produce one Manufacturer''s Authorisation Form as per the standard form provided under Section XIV,,,,
of the Tender. The petitioner furnished the same and was hopeful that the respondents in compliance with the Public Procurement Policy 2012,,,,
would consider their tender bid and select them.,,,,
The respondents pursuant to the tender summary report dated 27th November, 2015 rejected the bid of the petitioner on the ground that",,,,
composite system is of ''imported'' origin and therefore EMD exemption is not applicable and further that the offered stores against Bill of,,,,
Quantities Sl. Nos. 5.3, 14 and 15 of the Tender were not listed in the ""Store Details"" of the NSIC Government Purchase Enlistment Certificate",,,,
dated 24th September, 2015.",,,,
The petitioner challenged the action of the respondents being unwarranted as the Tender was a Composite Turnkey Requirement Tender as is,,,,
evident from Section-I of the Tender document and as such it was not an Individual Product Tender.,,,,
It is further contended by the petitioner that nowhere in the Tender Evaluation Report Sheet did the respondents do a background check or,,,,
did something to evaluate the credentials or competence of the rest of the competing firms/companies vis-a-vis the item mentioned against Sl. Nos.,,,,
14 and 15 of the BOQ i.e. Operating and Maintenance of the Medical Gas System and complete civil works and other accessories required for,,,,
the MGPS project. It is contended that the action of the respondents is against the principles of equality and fair treatment.,,,,
Learned counsel for the petitioner vehemently argued that nowhere in the Tender document the respondents have mentioned that the ancillary,,,,
items at Sl. Nos. 14 and 15 need to be mentioned along with the main item in the NSIC certificate, in order to claim exemption from payment of",,,,
EMD amount of Rs. 30 lakhs.,,,,
It is further argued that the action of the respondents in rejecting the bid of the petitioner is in complete disregard of the applicable laws and,,,,
judgments of the Supreme Court where it has been settled that tender conditions cannot be altered selectively to exclude or benefit on or some,,,,
others. Thus, the action of the respondents is malafide.",,,,
It is further contended that the respondents have disregarded and ignored the advice of the NSIC that the petitioner is eligible for benefits as,,,,
stated in the Policy, 2012. Despite that the petitioner''s proposal was rejected in a very mechanical manner. It is contended that the decision",,,,
making process in the present case has been vitiated by malafide and unreasonable and irrelevant factors and liable to be quashed and set aside.,,,,
The respondents opposed the petition and affidavit-in-opposition was filed. It is stated that in response to the open tender six bidders,,,,
participated in the tender process. The tender committee of the respondents observed that bid of one of the tenderer M/s Atlas Copco India Ltd.,",,,,
Pune was commercially non-responsive due to non-submission of tender fee of Rs. 1000/- and EMD of Rs. 30 lakhs within the stipulated time and,,,,
the petitioner sought exemption towards EMD by submitting NSIC enlistment certificate dated 24th September, 2015. However, the committee",,,,
found that the petitioner was ineligible to avail facilities extended to Micro, Small & Medium Enterprises as the NSIC enlistment certificate of the",,,,
petitioner under store(s)/service(s) did not include the indigenous stores offered against BOQ Sl. No. 5.3; Sl. No. 14-provision of manpower and,,,,
engagement of professions for a period of 10 years and Sl. 15-civil works as per CPWD norms including building associated works. These were,,,,
included in the schedule of stores and services listed from Sl. 1 to 15 in the bidding/tender documents. Therefore, the NSIC certificate of the",,,,
petitioner does not cover all the items of BOQ-Item description covered by the subject tender.,,,,
Sl.
No",Description of Stores/Items,Unit/Pack,,
5.3,"Supply, installation, testing & commissioning of Electrical Control Panel for the vacuum system complete with single phase
preventers, starters, controls, voltmeter, ammeters, gauges, hour meter, fuses, switchgears, MCCB and main switch etc. The
system should be complete as required with all accessories as per technical specification.","Complete
Unit",,
14.,"Operation and Maintenance of Medical Gas System at NEIGRIHMS
The man power cost towards engagement of the professionals should quoted/offered in the price bid on lumpsum basis for ten
years of operation and the same shall be taken for the purpose of tender/price Evaluation. The bills towards engagement of
manpower shall be claimed by the bidder with the requisite supporting documents on half yearly basis.",Lumpsum,,
15.,Complete Civil works and other accessories required for the MGPS project.,Lumpsum,,
,,,,
Sl.
No.",Store(s)/ Service(s) Name,Specification(s),"Qualitative
Capacity","Quantitative
Capacity
P.M.P.S.
1.,"SITC of medical gases and vaccum pipeline system on turnkey basis from source equipments
to the gas outlets/terminal points including oxygen flow meters suction units etc. wall
mount/ceiling bed head units and pendants","As per
HTM/NFPA/ISO","As per
Hospitals
requirements","10000
Nos.
2.,"SITC of modular operation theatres on turnkey basis including its walls, laminar flow, surgeon
control panel, electrical wiring, X-ray view screen, OP Light, OT table, OT pendants, false
ceiling, lighting, flooring, sub-structure etc.","As per
HTM/NFPA/ISO","As per
Hospitals
requirements",2000 Nos
3.,"SITC of all types of medical equipments, consumable, CSSD",CE/UL/ISO,"As per
Hospitals
requirements",1000 Nos.