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Judgment
Sharad Kumar Sharma J
The petitioner is a proprietorship firm and for the last more than 10 years, the petitioner's firm is engaged in the business for supply of various types of electrical and mechanical devises to the respondents and for which various contracts have been previously granted in favour of the petitioner by the respondents themselves. The facts as emerged in the instant writ petition as per the pleadings, in particular, is the challenge given to clause 2.2 as contained in the Tender document, which reads as under:
"2.2- All bidders shall include the following information and documents with their bids in Qualification information.
(A) To qualify for award of the contract, each bidder should fulfill the following criteria:-
(1) For Experience: Experience of having successfully completed similar nature of works during last 2 years ending last day of month, previous to the one in which this bid is invited should be either of the following:-
(i) Three similar completed works each costing not less than the amount equal to 40% of the estimated cost.
OR
(ii) Two similar completed works each costing not less than the amount equal to 50% of the estimate cost.
OR
(iii) One similar completed work costing not less than the amount equal to 80% of the estimated cost.
Similar nature of works means: Supply of Gage/Globe valves in Central Gov. Dept/State Govt. Dept./CPSU's/State PSU's.
(2) Bidder shall also submit at least one order of supplying Gate/Globe valve (atleast 200 mm size) with actuator mounted with the valve, in reputed firm."
The argument of learned counsel for the petitioner is that the experience clause which has been incorporated in class-2.2 (A) (i), particularly, in relation to the experience clause which a supplier was supposed to have, to make him eligible in the Bidding process, he should have an experience of atleast seven years. He submits that the said clause has been introduced in the terms of the tender, intentionally so as to eliminate the petitioner from participating in the bidding process which has been done arbitrarily with mala fide intention.
Admittedly, the respondents had published a tender notice being 19/EE(M)/2016-17, by virtue of the said tender notice the respondents had invited, 'Bids' for the purposes of procurement of "Different Size of Valves for Tiloth Power House", Uttarkashi. Learned counsel for the petitioner submits that the said clause 2.2 of the tender notice 19/EE(M)/2016-17 has been arbitrarily incorporated wherein in it is required that the Bidder to have a two years experience, in the Bidding process, so as to make the petitioner ineligible from participating in the bidding process, wherein it is mandatorily requires two years experience with the Bidder to make him eligible to participate in the tender process.
Learned counsel for the petitioner further submits that the said clause is arbitrary in the light of clauses mentioned in schedule-1 of the tender document, wherein the work experience required for supplying the components or for other connected activity it has been mentioned therein to be 'seven' years. He further submits that in view of the schedule-1 to be read with clause 2.2 there is a contradiction in the experience clause-A of Schedule-1, that calls for the requirement of 7 years for bidding under the tender condition, as compared with the condition incorporated therein in clause 2.2 it requires an experience of 2 years, which would be arbitrary. This argument of learned counsel for the petitioner is not accepted by the Court for the reason being, that it is an absolute prerogative of the employer to incorporate the clause of experience which it supposes to have looking to the nature of component to be procured which the respondents intend for the purpose of different projects being run and managed by them. As the assessment of expertise required by the Bidder falls to be in exclusive domain of the employer inviting tender, who could best assess the technical requirement of it.
The alleged contradictions of the number of year of experience as given in schedule-1 and mentioned in clause 2.2(A) (i), since it is a lesser period of experience which has been given in the clause of experience of the present tender itself it cannot be said to be an arbitrary. Had it been that clause could have been read vice versa, if the experience clause 2.2(A) (i) as mentioned an experience for a period of more than seven years which has been provided therein the schedule. Since the period given in clause 2.2(A) (i) is lesser a period which is lesser in time it cannot be said that, it is arbitrary and discriminatory to the interest of the bidder itself.
As far as the incorporation of the experience clauses are concerned, in the terms of the Bids is absolutely prerogative of the employer to assess the requirement of experience depending upon the nature of procurement of the component which are required to be utlised by the respondents. The classification of experience clause in a tender document cannot be made as a subject matter of the judicial review because that it exclusively depends upon the requirement as assessed by the employer who is the best judge of need and experience. Hence, it cannot be said to be an arbitrary or tailor made classification malafidely intending to eliminate the petitioner from the available opportunity of bidding in the bidding process of inviting of the aforesaid tender notice which was floated as back as for the year 2016-17.
There is another limb of argument, which the petitioner has sought to argue, it is that while inviting the attention to, Section VI pertaining to "Technical Specification", the argument extended by the learned counsel for the petitioner is that the Different Types of Valves, were offered to be supplied in pursuance to the tender notice of the respondents had specifically given the name of the firms the make of it which were required to be procured, for example, it required that the valves should have been manufactured by : "BHEL/AUDCO/LEADER ACTUATOR". The petitioner submits that as per the dimensions and nature of valves which were required to be supplied under the aforesaid tender notice if it is not manufactured as per the demand and the capacity to be procured by the BHEL, hence it was no-nest clause which was incorporated so as to favour some specific manufacturer of the valve. Because BHEL never caters the nature of supply sought to be procured under the terms tender document, and that too in relation to the number of the components required. Second submission of learned counsel for the petitioner is that another company as specified would be a non-existent company as the said company has now been merged with the L&T (Larcen and Tubro).
Thirdly, he submits that the makes which has been provided under Section VI of the Technical Specifications, it was to benefit a particular a manufacturer i.e. the LEADER which as per the petitioner was the only company left in fray of the manufactures. Thus, the arguments extended by learned counsel for the petitioner is refuted by learned counsel for the respondents from the view point that the second argument pertaining to merger of AUDCO with L & T is absolutely untenable argument for the reason being that subsequent to floating of the tender a corrigendum was issued by the respondents for Section VI. In the corrigendum it was specifically pointed out that the AUDCO to be read as L& T. Meaning thereby the argument was that the respondents intended to benefit to a particularly manufacturer is not yet again tenable for the aforesaid reasons. Apart from it, as far as the tender which were floated in 2016-17, pertains to the procurement of the valve as required for the aforesaid scheduled power plant since its term is over even otherwise also, the cause which was sought to be adjudicated in the writ petition, which were raised by the petitioner in the writ petition, particularly, that in relation to the relief clause as mentioned by the learned counsel for the petitioner, which is quoted herein.
This Court is of the view that the argument that respondents were trying to benefit a particular manufacturer is not tenable for the aforesaid reasons and secondly, as far as the experience clause is concerned it has already been held on that is totally within the domain of the employer, which can impose the terms and conditions of the tender, who cannot be judicially scrutinized by this Court under Article 226 of the Constitution of India, because the Court do not have that technical skill to make any assessment of the veracity of the respondents requirement as incorporated by the employer in the tender documents. In that view of the matter, this Court is of the view that as of now, as no cause survives as procurement of goods under tender and its objective and its condition which was sought to be considered to benefit a particular manufacturer as sought to be argued by learned counsel for the petitioner has become non-existent.
Consequently, the writ petition fails and is accordingly dismissed.