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Judgment
Sanjay Kishan Kaul, C.J.
Caveat application:
Learned counsel for the respondent/caveator having entered appearance, the caveat stands discharged.
CWP-9656-2014:
The petitioner has filed the present writ petition apprehending that it will be technically disqualified for purposes of the impugned tender on account of the manner in which the terms and conditions of the tender have been structured.
The first aspect, in this behalf, raised by learned senior counsel for the petitioner is that in Clause-9 while making reference to the minimum turnover for the last three financial years, mistakenly years mentioned are 2010-11, 2011-12 and 2012-13 while the tender has been floated in May, 2014. It is, thus, his submission that when reference is to the last three financial years, it ought to have been mentioned as 2011-12, 2012-13 and 2013-14.
Learned senior counsel appearing for the respondent, on caveat, submits that there is no mistake and this is a conscious decision. In this behalf, he seeks to make out a case that since the financial results would not be available for the year 2013-14 in May, that is why three years have been specified so. In this behalf, the stand of the learned senior counsel for the petitioner is that same would be relevant only for the financial turnover issue which is covered by Clause-8 and not for the physical turnover issue which is covered by Clause-9 while learned senior counsel for the respondent states that the conscious decision is to keep the same for three financial years in question.
On examination of aforesaid pleas, we are of the view that it is not possible for this Court to modify the terms and conditions of the tender in Clause-9. No doubt, one possible way could have been to keep the last three financial years for financial turnover on the basis of the years for which such turnover will be available and, thus, exclude 2013-14 while qua the physical turnover that year could have been included. Simultaneously, the manner in which the respondent has done so cannot be said to be so arbitrary or illegal as to call interference by this Court as the tender making authority must have a lee-way on this aspect.
Now coming to the second issue, as per Clause-9, supplies to co-operative societies/sectors is not to be recognisable for this purpose. In this behalf, learned senior counsel for the petitioner submits that there are certain supplies made by the petitioner to the Army, but through cooperative societies (Annexure P-2). He submits that same cannot be excluded.
As far as the aforesaid aspect is concerned, it would be premature to get into this aspect, as technical evaluation is yet to take place and if on this ground the petitioner is sought to be technically disqualified, naturally, the respondent would have to give reasons for the same.
We may also add that according to learned senior counsel for the respondent, there is a question mark on the ability of the petitioner to participate in the tender as in terms of Clause-8, no trading firm can participate. Learned senior counsel for the petitioner submits that the licence which the petitioner has is not confined to trading activities and, thus, the petitioner is eligible to participate. Once again, the same principle would apply here as above, i.e., it will be for the Tender Evaluation Committee to take a decision on this with reasons.
Learned senior counsel for the petitioner also makes a grievance that consistently six firms have been granted tenders, even if their price-quote is much higher than what is by the petitioner. It is his submission that there is no reason why the respondent should be buying the product at a higher price and in this behalf has given the figures in para-11. Again, this will be a matter which will be taken into consideration by the respondent.
The tender is scheduled to be opened tomorrow and, thus, in case the petitioner fails on any of the technical grounds, the reasons should be made available within a day to petitioner as well as its counsel so as to enable the petitioner to challenge the same, if so advised.
The petition accordingly stands disposed of.
Copy of order be given dasti under signatures of Bench Secretary to learned counsel for the parties.