Allowed

M/S Mahindra and Mahindra Limited v. North Delhi Municipal Corporation and Anr.

Delhi HC1 Oct 2019W.P.(C)/8589/2019

Case brief

AI extract

What is this about?

The High Court addressed a petition arising from the cancellation of a tender for water tankers. The tenderer agreed to supply with power steering. The court directed the tender restoration, purchase order issuance, and supply completion within three months, penalizing withdrawal.

What did the court decide?

Direct the tender authority to restore the cancelled bid and issue the purchase order; direct the petitioner to supply 104 water tankers with power steering within three months.

M/S Mahindra and Mahindra Limited Vs North… — Public Procurement and Tenders | Delhi HC (2019)

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$~26

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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% Date of Judgment : 1^st October, 2019

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- W.P.(C) 8589/2019

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M/S MAHINDRA AND MAHINDRA LIMITED ..... Petitioner Through Mr. J.P. Sengh, Sr. Advocate with Mr. Anand Shankar Jha, Mr. Puneet Dhir & Ms. Manisha Mehta, Advocates.

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versus

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NORTH DELHI MUNICIPAL CORPORATION AND ANR.

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..... Respondents Through Mr. Sanjiv Sen, Sr. Advocate with Ms. Mini Pushkarna, Standing Counsel for R-1 & R-2.

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CORAM:

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HON'BLE MR. JUSTICE G.S.SISTANI HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI

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G.S. SISTANI, J. (ORAL)

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CM APPL. 39504/2019 (delay in filing rejoinder)

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This is an application filed by the applicant/petitioner under Section 5 of Limitation Act, 1963 seeking condonation of delay of 7 days in filing the rejoinder.

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The prayer made in the application is not opposed. Delay of 7 days in filing the rejoinder is condoned.

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The application stands disposed of.

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W.P.(C) 8589/2019 & CM APPL. 40723/2019 (stay)

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This is a petition under Article 226 of the Constitution of India filed by the petitioner.

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The necessary facts required to be noticed for disposal of this petition are that a tender bearing no.GEM/2018/B/121660 dated 17.11.2018

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W.P.(C) 8589/2019

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Page 1 of 5

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was floated on Government e-Marketplace (GeM) portal by respondent No.1/North DMC for procurement of 104 Water Trucks/Cabin Trucks with Water Tanks (hereinafter referred to as the ‘water tankers’). The technical specifications of the water tankers containing general parameters, certification, performance parameters, constructional parameters, EMD and other details such as buyer specific additional terms and conditions were fully set-out in the bid document dated 17.11.2018. Thereafter a corrigendum was issued by respondent no.1 on 21.11.2018 by which certain other terms and conditions were added in the bid document. The respondent issued another corrigendum on 29.11.2018.

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On 05.12.2018, all manufacturers were invited physically for technical bid opening and the bid was opened on 05.12.2018 at 12:00 noon in the presence of the bidders.

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Thereupon, respondent No.1/North DMC issued a Letter of Intent (LOI) on 12.04.2019 in favour of the petitioner for procurement of 104 Truck mounted water tankers with pump of minimum 3KL capacity/CNG fuel driven, for North DMC through GeM under UDF for a total contractual amount of Rs.11,18,26,990/-. The petitioner was further required to submit its consent for the work and to enter into a contract agreement with the respondent department on a non-judicial stamp paper of Rs.100/- and sign departmental conditions etc. at the earliest. Admittedly, the petitioner company gave a formal acceptance letter on 08.05.2019.

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To the petitioner’s surprise however, the petitioner received a communication on 24.06.2019 informing the petitioner that the tender

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W.P.(C) 8589/2019

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Page 2 of 5

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had been cancelled/withdrawn on 12.06.2019 on the GeM portal. A detailed representation was sent by the petitioner on 24.07.2019; and having received no answer, the present writ petition was filed. The stand of the petitioner before us is that the action of the respondents is mala fide, illegal and arbitrary and without any cogent reasons.

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Learned counsel for the respondent has entered appearance and has produced the record. Counsel for the respondent has also filed a counter affidavit. As per the counter affidavit, the tender was withdrawn for cogent reasons. Reliance is placed on para 9 of the counter affidavit, which reads as under :

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“9. That at the time of finalizing the bid specifications, while detailing the technical specifications under the head type of steering, inadvertently it was mentioned Power as well as Manual steering, due to inadvertent overlooking by the Technical Committee, which had wrongly recommended manual as well as power, since subsequently, the Competent Authority including the Commissioner was of the view that only power steering vehicles ought to be procured for maximum, safe and efficient utilization of the vehicles for public purpose.”

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When this matter was listed in court on the last date of hearing, learned Senior Counsel appearing for the petitioner, on instructions, had submitted that the petitioner is willing to supply water tankers with power steering on the same terms and conditions and without any additional cost. Having regard to the public importance viz. the urgent requirement of 104 water tankers, which were being procured for sprinkling of water on roads and dusty areas to avoid pollution in the coming winter months, we had requested Ms. Mini Pushkarna, learned counsel for North DMC, to seek instructions in the matter. In response

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W.P.(C) 8589/2019

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Page 3 of 5

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respondent No.1 has filed an affidavit of Executive Engineer. Paras 4 and 5 of this affidavit read as under :

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“4. That if the petitioner supplies the truck mounted water tankers as per the specifications given in the tender dated 17.11.2018 with Power Steering at the same rate as quoted by the petitioner and subject to the Terms and Conditions of the tender dated 17.11.2018, the answering respondent is ready to follow the directions given by the court.

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That North DMC already cancelled the bid/RA on GeM portal vide Bid No.GEM/2018/B/121660 dated 17.11.2018 and RA No.GEM/2018/R/2183 dated 14.12.18 for the said work. Therefore it is requested that if court give directions to North DMC to issue the purchase order to M/S Mahindra & Mahindra for purchase of 104 Nos Truck mounted water tankers on GeM, then the directions to the authorities of GeM should also be given to restore the cancelled Bid/RA so that the purchaseorder can be issued by North DMC on GeM portal.”

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Having regard to the submission made and the stand taken by respondent no.1, we allow this writ petition with the following directions :

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(i) Having regard to the peculiar facts of this case and the public purpose to be served by the tender; and the evident fact that a vital technical specification was by inadvertence put in an ambiguous manner as stated in para 9 of the affidavit, it is directed that the petitioner (L-1) would supply 104 truck mounted water tankers on GeM fitted with “power steering”, apart from complying with all other tender specifications as per the tender document at no extra cost, as agreed;

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W.P.(C) 8589/2019

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Page 4 of 5

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(ii) The GeM shall restore the petitioner’s cancelled bid and the purchase order will be issued by the North DMC on GeM portal to the petitioner forthwith.

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With these directions, the writ petition stands disposed of.

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We make it clear that in case the petitioner backs-out from the offer so made and agreed, the petitioner shall be burdened with costs of Rs.10 lacs to be paid to respondent No.1 for the loss of time and for issuing a fresh tender. The supply of tankers shall be made within three months from the date of issuance of the purchase order.

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Dasti.

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G.S. SISTANI, J

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. ANUP JAIRAM BHAMBHANI, J

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OCTOBER 01, 2019 ck

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W.P.(C) 8589/2019

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Page 5 of 5

M/S Mahindra and Mahindra Limited v. North Delhi Municipal Corporation and Anr.

Case brief

What is this about?

What did the court decide?

M/S Mahindra and Mahindra Limited v. North Delhi Municipal Corporation and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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