Dismissed

Dd Industries Ltd. & Ors. v. State of Punjab & Ors.

Punjab & Haryana HC5 Oct 2011CWP/18881/2011

Case brief

AI extract

What is this about?

Single JBJG Intellectual Judgment. The State of Punjab invited fresh tenders for High Security Registration Plates after only one candidate qualified the technical evaluation. The Court held the State had discretion to scrap the tender due to lack of competition.

What did the court decide?

Writ petition dismissed against the State's decision to scrap earlier tender and invite fresh process.

Dd Industries Ltd. & Ors. Vs State… — Public Procurement and Tenders | Punjab & Haryana HC (2011)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Date of Decision: 5.10.2011

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CWP No. 18881 of 2011

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DD Industries and others

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...Petitioners

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Versus

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The State of Punjab and ors

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…Respondents

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CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE G.S. SANDHAWALIA

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To be referred to the Reporters or not?

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Present: Mr. A.K.Chopra, Sr. Advocate with Mr. Aashish Chopra, Advocate for the petitioners

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HEMANT GUPTA, J.

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Challenge in the present writ petition is to the Notice Inviting Tender (for short the ‘NIT’) dated 15.9.2011, inviting proposals for installations of High Security Registration Plates (for short the ‘Plates’) for motor vehicles in the State of Punjab.

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Earlier, the Transport Department, Government of Punjab invited tenders for installation of such Plates on 27.4.2011. The Petitioners along with eight others participated in the tender process on furnishing the earnest money of Rs. 25.00 lacs each. The project of Plates is to be implemented on build, own and operate basis. The bids were in two parts i.e. technical and financial. In pre-qualification evaluation of the tenderers, petitioners and M/s Hind Industries Limited were shortlisted. Subsequently,

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CWP No.18881 of 2011

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it was found that the samples of M/s Hind Industries Limited were incomplete as they have submitted only four samples of Plates instead of 32 samples as required under the NIT. Thus, the petitioner was the sole eligible candidate in the process of awarding the contract. But respondents have taken a decision to invite the fresh tenders on 15.9.2011, wherein the bids are to be submitted on or before October 7, 2011. It is the said tender process, which is impugned by the petitioners in the present writ petition.

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The petitioners have impugned the re-tender process inter alia on the following grounds:

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(i) that there was no condition in the NIT dated 27.4.2011 that in case of one valid eligible tenderer, the tender process will be scrapped and fresh process initiated;

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(ii) that even if the petitioner is the sole eligible tenderer, the process to invite the re-tender cannot be resorted to. Reliance is placed upon a Division Bench judgment of this Court reported as 2009(1) R.C. R. (Civil) 393, Bharat Hotels Ltd. New Delhi vs. State of Haryana and another;

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(iii) that the respondents are estopped to re-tender the process having proceeded to continue with the technical evaluation after only two tenderers qualified the pre-qualification evaluation. Thus, having proceeded to technically evaluated tenders submitted by the petitioners, respondents cannot turn around to issue fresh tender notice;

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(iv) that in the order dated 12.8.2011, IA No. 13 of 2011 filed by the State of Kerala in the Supreme Court praying for certain directions including permission to reopen the fresh tenders was dismissed. In the subsequent order dated 30.8.2011, the request for extension of time, since the State has received the single tender was declined. Therefore, it is contended that Hon’ble Supreme Court has not prohibited the State Governments to finalize the tender process on the basis of the single tender;

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CWP No.18881 of 2011

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(v) that the process to re-tender will not serve the public interest. The direction of Hon’ble the Supreme Court to implement the project of installation of the Plates may not be complied within the time granted. Therefore, the State should have proceeded with the tender process initiated on 27.4.2011; and

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(vi) that there is no decision communicated to the petitioners that the tender process initiated on 27.4.2011 has been scrapped, therefore, without scrapping the earlier tender process, the respondents cannot initiate the fresh tender process.

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We do not find any merit in the arguments raised by learned counsel for the petitioners. As per the averments made by the petitioners, two firms qualified the pre-qualification technical evaluation and still further, one of the short listed tenderer could not satisfy the parameters at the technical evaluation stage. Thus, the petitioner is the only tenderer available for implementation of the project of Plates for the period of 10 years. It is but natural for the State to ensure that tenders are awarded after ensuring that there is enough competition so that the public interest is served for long period of time.

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The argument that there is no clause in the tender notice dated 27.4.2011 and that in case of a single bid, the tenderer will be scrapped, is not meritorious. Even in the absence of such specific clause, respondents are within their rights to scrap tender process at any time in terms of Clause 2.22 of the NIT. The facts on record show that the magnitude of quantum of the tender and the period for which contract has to be awarded to invite the fresh tenders, must have led the State Government to invite fresh tenders. The decision of the scrap tenders in the event of sole bidder is in the discretion of the competent authority and such decision cannot be inferred with at this stage when the respondents are bound to comply with the

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CWP No.18881 of 2011

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directions of the Hon’ble Supreme Court to implement the project of installation of Plates.

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Reliance of the petitioner on the Division Bench judgment of this Court in Bharat Hotels’ case (supra) is not tenable. In the said case, after the financial bid of the tenderers was opened, it was decided to re-tender the process without finding any infirmity in the tender process. But in the present case, not only that the financial bid of the petitioners has not been opened but keeping in view the nature of the contract, the State Government is justified in initiating the fresh process so as to provide opportunity to all interested and eligible candidates to participate in the tender process.

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The dismissal of the interlocutory application filed by the State

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of Kerala to scrap the tender process in view of the single bid received does approves the action of the State of Kerala that the single bid is bound to be accepted. The Hon’ble Supreme Court was concerned in respect of delay in finalization of the contracts for implementing the project of Plates. The application of the State of Kerala was dismissed in that endeavour.

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The argument that the public interest would not be served if the

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fresh tenders are invited is again misconceived. The interest of the respondents is to ensure the competition and that the tender process is transparent and fair. The decision of the State Government does not contravene any of such salutary principles.

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Even if there is no specific communication that the previous tender stand scrapped but the fact that the State Government has invited tenders for the implementation of the same project which was advertised on 27.4.2011, the scrapping of previous tenders is inherent. It is not necessary that any specific communication is required to be addressed to the petitioners to inform the petitioners that the previous tender process stands scrapped.

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CWP No.18881 of 2011

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Consequently, we do not find any merit in the present petition.

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The same is dismissed.

(HEMANT GUPTA)

JUDGE

5.10.2011 preeti

(G.S. SANDHAWALIA) JUDGE

Dd Industries Ltd. & Ors. v. State of Punjab & Ors.

Case brief

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Dd Industries Ltd. & Ors. v. State of Punjab & Ors.

Case brief

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