Allahabad High Court
M/S Hem Chand (Contractor) Prop. ... vs Union Of India Thru' Ministry Of ... on 31 March, 2014
Bench: Dhananjaya Yeshwant Chandrachud, Chief Justice, Dilip Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Chief Justice's Court
Case :- WRIT - C No. - 18579 of 2014
Petitioner :- M/S Hem Chand (Contractor) Prop. M/S Hem Chand & Another
Respondent :- Union Of India Thru' Ministry Of Telecommunication & 6 Ors.
Counsel for Petitioner :- K.K. Arora
Counsel for Respondent :- A.S.G.I.,K.N. Mishra
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Dilip Gupta,J.
The petitioner has challenged a tender condition imposed by the Bharat Sanchar Nigam Ltd., Aligarh in a notice inviting tenders for carrying out the work of laying Optic Fibre Cables. This work is part of the OFC laying work for the National Optical Fibre Network on behalf of Bharat Broadband Network Ltd.
In a corrigendum dated 9 March 2014, the eligibility condition has been prescribed as follows:-
"2. Section-I Clause 12.2-the eligible conditions are modified as under:-
Eligibility Conditions: Bidder must submit attested copies (attested by Gazetted officer/Notary/self attested) of the following documents with the tender form:
(i) The bidder should have experience for successful execution of OF cable construction works/ maintenance of OF cable routes and associated works in BSNL/MTNL/DOT/PSUs (state and central Government) in India for satisfactory completion of work as given below:
The agency should have cumulative experience for an amount equal to 100% of estimated cost of work in last 7(Seven) financial years plus current year.
OR
The agency should have cumulative experience for an amount equal to 70% of estimated cost of work in last 5(Five) financial years plus current year.
OR
The agency should have cumulative experience for an amount equal to 35% of estimated cost of work in last 3(Three) financial years plus current year.
The experience certificate submitted should have been issued by an officer not below the rank of JAG/DGM level or equivalent officer & duly attested by the Gazetted officer/Notary/Self attested."
The corrigendum has been issued to a notice inviting tender dated 24 February 2014. As originally envisaged, the tender condition requires the bidders to have a satisfactory experience with the following terms:
"(vii) (a) Bidder's having an satisfactory experience of OFC fault restoration work/Copper Cable laying and Fault restoration work in DOT/BSNL/MTNL directly or through PSU'S authorized by DOT or PSU of Govt. of India or State Govt. of value equivalent to 25% of the estimated cost of the tender he is bidding for, in the tender in any one year during last Five year i.e. 08-09, 09-10, 10-11, 11-12, 12-13. Experience certificate should be issued by officer not below the rank of AGM/DGM of BSNL/MTNL/DOT or similar certificate issued by competent authority of Central Govt./State Govt./Govt. undertaking/Semi Govt. are acceptable.
(b) Bidders having experience of OFC laying, Splicing, Maintenance in any other telecom service provider equivalent to 25% of the estimated bid value of the tender in any one year during last Five year i.e. 08-09, 09-10, 10-11, 11-12, 12-13 will also be eligible. Experience certificate should be issued by executive of private telecom service provider on letter head of the service provider which can be verified easily."
The grievance of the petitioner is that as a result of the corrigendum, the field of eligibility has been narrowed since a bidder is now required to have an experience in successful execution of Optic Fibre cable construction works or in regard to work of maintenance of Optic Fibre cable routes and associated works. Moreover, it has been submitted that in other States where tenders have been issued by Power Grid Corporation, BSNL and Railtel, no such condition was imposed.
Judicial review, where the validity of a tender condition is sought to be questioned is restricted in nature because the discretion to prescribe an appropriate tender requirement to fulfill the object and purpose of a contract which the public authority proposes to award, has to be exercised by the authority itself. The authority inviting tenders is entitled to determine what tender conditions should be prescribed in order to ensure that a bidder who is selected eventually, has the competence to execute the work under the contract. The Court would not hence, evaluate the wisdom or the policy underlying the tender condition and would intervene only in a situation where the tender condition is ex facie arbitrary for instance, where it operates to create a monopoly in favour of a selected bidder to the exclusion of all other bidders. Even here, the tender inviting authority may discharge the burden which is cast and explain why the tender condition was imposed by demonstrating that there were valid and justifiable reasons in laying down a particular prescription so as to ensure the due fulfillment of the contract.
Considered in this perspective, we find no reason to hold that the tender condition, as prescribed by the corrigendum, is arbitrary. The corrigendum stipulates that the bidders should have experience inter alia in a successful execution of construction works pertaining to Optic Fibre cables or the maintenance of Optic Fibre cable routes or associated works. Such a tender condition ensures that the bidder is duly qualified to perform the work under the contract. Evidently, the work is a part of a National Project and it is essential to ensure that bidders are duly qualified to perform the work of the nature that is being contracted.
At this stage, it may be also material to note that even in the State of Uttrakhand, where Bharat Sanchar Nigam Ltd. issued a notice inviting tenders on 25 February 2014, the following condition was imposed:
"3.2 The Bidder or its parent company possessing experience of successfully execution of trenching, pipe laying work for optical fibre cable/underground for any Telecom Services/Telecom Infra providers OR drawing underground/overhead cables for any Electricity Distribution Authorities OR laying of pipe lines for drainage/water lines with any Infra Providers of Government or its body, shall be eligible to participate in bid, subject to fulfillment of below mentioned conditions."
This tender condition again requires experience on the part of the bidder in successfully executing the trenching or pipe laying work for Optical Fibre cables or in cognate areas referred to above. It may well be that the stipulation which has been made in other States may be different. The ground reality, topography, geological conditions and other relevant factors have to be borne in mind by each tender inviting authority, which factors may considerably vary from State to State. Hence, the validity of the tender condition which has been imposed in the present case cannot be held to be arbitrary merely because a less stringent condition has been laid down in some other geographical areas pertaining to the same authority or other authorities. Ultimately, the test is as to whether the tender condition is arbitrary or has no rational nexus with the object of securing the efficient and expeditious completion of the contract which forms part of a National Optic Fibre Network. There is evidently, in the present case, a nexus between the condition which has been prescribed and the nature of the work that has to be performed.
Hence, there is no reason for the Court to strike down the tender condition as being arbitrary. For these reason, we find no merit in this petition.
The writ petition is, accordingly, dismissed.
Order Date :- 31.3.2014
NSC
(Dr. D.Y. Chandrachud, C.J.)
(Dilip Gupta, J.)
