Indian Railways Onboard Catering Contractors Association vs Union Of India And Anr

G.S.Sistani, J

A notice inviting E-Tender issued by respondent No. 1 herein has been impugned by the petitioner primarily on two grounds that :

(i) The same is contrary to the General Conditions of Contract (GCC) for Services issued by the Ministry of Railways requiring a turnover of not less

than 1.5 times the advertised Bid Value during the last three previous financial years whereas the impugned document requires a minimum average

turnover of Rs.10 crores in the last five years.

(ii) The Standard Bid Document (SBD) issued by the Ministry of Railways allows a consortium/JV to bid whereas the impugned document does not

allow for the same.

At the outset, it is noted that the petitioner has not participated in the bid. It is claimed that the petitioner made a representation to respondent No.2

on 09.08.2019 but no reply has been received in response to the same. A preliminary objection has been raised by counsel for the respondent with

regard to the maintainability of this writ petition submitting that since the petitioner has not even participated in the bid it has no locus to challenge the

same.

At present, it is not necessary to go into the issue of locus standi of the petitioner since, with the consent of the parties, we are deciding the writ

petition at the admission stage itself without adverting to the question of maintainability.

Both the issues which have been raised by the petitioner have been answered by counsel for the respondents in the form of an affidavit filed by

respondent No. 2 and the statement made in court to the effect that the General Conditions of Contract for Services do not apply to ‘catering

tenders’ and also that tenders pertaining to catering are governed by the Catering Policy, copy whereof has been placed on record alongwith the

affidavit. A similar stand is taken by respondent No. 1. Additionally, Mr. Jagjit Singh, learned Senior Standing Counsel for the Railways submits that

where the contract is to be governed by the General Conditions of Contract, a specific stipulation is made therein ; however no such stipulation has

been made in the current tender.

Although the petitioner did not participate in the pre-bid meeting, it is contended by Mr. Ninad Laud, learned counsel appearing for the petitioner

that the said E-tender is contrary to the SBD for Rajdhani or Shatabdi trains issued by the Ministry of Railways. The SBD comprises the eligibility and

evaluation criteria of bidders and is contrary to the E-tender inasmuch as, according to the SBD, the bidder could either be an individual or a company

registered under the Companies Act, 1956 or a partnership firm registered under the Partnership Act, 1932 or a group of entities i.e. consortium

coming together to render desired services in relation to the license as per the GCC. However, vide the impugned E-tender, respondent No. 2/IRCTC

has excluded consortium/joint venture entities from participating in the tender and hence, the petitioner contends, the impugned tender is in violation of

the GCCs.

Mr. Majithia, learned counsel for respondent No. 2, who appears on advance copy submits that the present writ petition is misconceived and is a

gross abuse of the process of the court and that the petitioner has not even participated in the pre-bid meeting. In support of his submissions, reliance

has been placed on paras 2.2, 2.2.1 and 2.2.1.1 of the GCC which are reproduced as under :

“2.2 Qualification Criteria

2.2.1 Eligible Applicant

2.2.1.1 The Bids for this contract will be considered only from those Bidders [proprietorship firms, partnership firms, companies,

corporations, consortia or joint ventures (JV hereinafter) etc.] who meet requisite eligibility criteria. In the case of a JV or Consortium, all

members of the Group shall be jointly and severally liable for the performance of whole contract.â€​

This court has also had the occasion of deciding the matter of a tenderer for a catering contract of the Railways, on a similar set of facts, to which the

same GCCs apply, in which case our attention was also drawn to para 17.5 of the Bid Form (Second Sheet) annexed to the GCC which, though not

filed on record in the present proceedings, is extremely material and germane to the matter at hand. Para 17.5 aforesaid reads as under:

“17.5 A Bid from JV/Consortium/Partnership Firm etc. shall be considered only where permissible as per the Bid/ Tender conditionsâ€​

It is further submitted that a composite reading of the above makes it abundantly clear that a bid from a joint venture/consortium/partnership firm

etc. is to be considered only where permissible as per the bid/tender conditions ; and in the impugned tender respondent No. 2 has excluded such

entities from participating. In view thereof, the submission made by counsel for the petitioner is without any merit.

Additionally, counsel for respondent No.2 submits that the GCCs are not applicable to the present tender for the reason that tenders for catering

services in trains are governed by the Catering Policy of the Railways, issued by the Ministry of Railways from time-to-time.

As far as objection with regard to absence of advertised bid-value is concerned, counsel for the respondents submits that Clause (9) of Annexure

‘D’ of the tender documents reflects that the minimum guaranteed Concession Fee per annum per train (excluding taxes) has to be Rs.2 crores

and any offer less than the amount of Rs.2 crores shall be rejected ; which therefore sets-down the advertised bid-value for purposes of testing the

bidder’s turnover.

We have heard learned counsel for the parties.

Having regard to condition No. 17.5 aforementioned, in our view, the submission of learned counsel for the petitioner with regard to the impugned

E-tender is mis-conceived inasmuch as condition No. 17.5 does specifically lay-down that a bid by a joint venture/ consortium/partnership firm etc.

shall be considered only where permissible as per the bid/tender conditions ; and on perusal of the tender conditions shows that in this case

participation by such entities has not been made permissible under the tender conditions. This argument made on behalf of the petitioner is therefore

without any force and is liable to be rejected.

The second ground raised is also without any merit in view of Clause (9) of the tender documents as discussed above and which in our view,

would squarely answer the required turnover of the bidder.

The above discussion notwithstanding, additionally, we take on record the submission of counsel for the respondent that the GCCs would in any

case not apply to any ‘catering’ tenders ; and we accept that statement to the extent that it would be applied uniformly to all catering contracts

and the respondents would not take a different view in other matters. We see no reason to disbelieve the statement made by counsel for the

respondent on this aspect, recording further that this statement is made on instructions.

For the aforesaid reasons, we find no merit in the writ petition. The writ petition and applications are accordingly dismissed