Bombay High Court
M/S Raut Enterprises vs Bhabha Atomic Research Centre And ... on 17 March, 2022
Bench: S.J. Kathawalla, Milind N. Jadhav
Kanchan P Dhuri 1 / 25 WP-6373-2021.odt
KANCHAN
PRASHANT
DHURI
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed
by KANCHAN
PRASHANT
DHURI CIVIL APPELLATE JURISDICTION
Date: 2022.03.17
20:52:53 +0530
WRIT PETITION NO. 6373 OF 2021
M/s. Raut Enterprises,
A Sole Partnership firm, through its Partner
Mr. Ankur Yashwant Raut
Having its address at 02, Prerna Building,
Khodaram Baug, Boisar,
Taluka & District Palghar-401 501 ... Petitioner
Versus
1 Bhabha Atomic Research Centre,
Nuclear Recycle Board, INPRO Tarapur
Complex, Post Office Ghivali, Boisar (W),
District Palghar-401 502
2 M/s. Shree Gajanan Facilities Pvt. Ltd.
(Formerly known as Shree Gajanan Enterprises)
Having its office at House No. 384, Ekta
Enclave, Hotel Sahara Residency Building,
Navpur Naka, Boisar (W),
Taluka and District Palghar-401 501
3 Nuclear Power Corporation of India,
A Government of India Enterprise,
Tarapur Atomic Power Section,
P.O. TAPP, Boisar (WR),
District Palghar-401504
4 The Department of Atomic Energy,
Through its Chairman,
Anushakti Bhavan, CSM Marg,
Mumbai-400 001 ... Respondents
.........
Mr. R.D. Suryawanshi alongwith Mr. Vipul Shelar & Mr. Suraj Naik for the Petitioner.
Mr. Y.R. Mishra alongwith Mr. D.P. Singh for Respondent No.1.
Mr. Prabhakar M. Jadhav for Respondent No.2.
Kanchan P Dhuri 2 / 25 WP-6373-2021.odt
Mr. Arsh Misra instructed by M.V.Kini and Co. for Respondent No.3.
Mr. Anil Singh, Addl. Solicitor General alongwith Mr. Aditya Thakkar instructed by
Ms. Anusha P. Amin for Respondent No.4.
Mr. Venkatesh Dhond, Senior Advocate as Amicus Curiae.
.........
CORAM : S.J. KATHAWALLA &
MILIND N. JADHAV, JJ.
RESERVED ON : 14th FEBRUARY 2022
PRONOUNCED ON : 17th MARCH 2022
JUDGMENT (Per: S.J. KATHAWALLA & MILIND N. JADHAV, JJ)
1. By this Writ Petition, the Petitioner has impugned the decision of the
Bhabha Atomic Bhabha Atomic Research Centre ("BARC") [Respondent No.1
herein] to award the following tenders to Respondent No.2, [Shree Gajanan Facilities
Pvt. Ltd].
Sr. Particulars Date Scope of Work Status
No.
1 NIT No. BARC/NRB/ 2.07.2020 Maintenance of Work Order dated
GSO(T)/C&M/CMT- lawns, shrubs, 5.03.2021 issued in
111/20/04 hedges, and other favour of
allied horticultural Respondent No.2
(hereinafter the "1st works in BARC
tender") Staff Colony,
Tarapur for the
years 2020-2022
2 NIT No. 3.02.2021 Maintenance of R2 declared as
BARC(T)/NRB/GSO/C lawns, shrubs, successful bidder,
&M/CMT-140/2021 hedges around Work Order yet to
plant installations be issued
at BARC Plant
Site, Tarapur for
the year 2021-23
Kanchan P Dhuri 3 / 25 WP-6373-2021.odt
BARC(T)/R&WM/PM/ mechanical in favour of
AS/OPA-8100 maintenance and Respondent No.2
operation works of
reprocessing
facility, Tarapur
4 NIT No. BARC (T)/ 26.03.2021 Assistance in Work Order issued
R&WM/OPN/ DC/ Process Operation, in favour of
2021/OPA-14911 laboratory etc, Respondent No.2
works of
Reprocessing
Facility, at BARC,
Tarapur
2. The Petitioner has also impugned Respondent No.2's participation in
the following tenders, which the Petitioner submits are yet to be opened and awarded.
Sr. Particulars Date Scope of Work Status (according
No.
to the Petitioner)
BARC(T)/NRB/GSO/ maintenance of
C&M/CMT- ST Plant (2MLD
143/2021/09 Capacity, working
on UASB process)
at BARC Colony,
Tarapur for 2021-
2 NIT 26.08.2021 Landscaping Work On Hold
No./BARC(T)/NRB/I around Type-E at
NRPO/COL- BARC Staff
07/2021/11 Colony, Tarapur
3 NIT 02.09.2021 Assistance in On Hold
No./NRBT/R&WM/A Operation and
SFSF/2021/OPA- Maintenance
109444 works at ASFSF,
NRB (T)
Kanchan P Dhuri 4 / 25 WP-6373-2021.odt
BARC(T)/NRB/INRP compressed air
O/UTFF/2021/70 system, ventilation
system and other
auxiliary system at
FF, INRPO,
BARC, Tarapur
BARC(T)/INRP(O)/N assistance in
RB/FF/GEN/07/HPU/ checking, counting
2021/64 and estimation of
quantity of
contaminants,
preparation of
samples for
chemical analysis,
process of
monitoring cards
and other allied
works at NRB,
BARC, Tarapur
3. The Petitioner's grievance is that Respondent No.2 does not meet the
eligibility criteria of the aforesaid tenders, as Respondent No.2 has been "banned" by
the Nuclear Power Corporation of India ("NPCIL"), [Respondent No.3 herein] for a
period of two years.
4. The Petition, therefore, seeks the following reliefs :
"(a) rule be issued, record and proceedings be called for from the
Respondent No.1 in respect of tender No.NIT No.:- BARC(T)/NRB/
GSO/C&M/CMT-111/2021/20(04) dated 2.7.2020 and tender notice
bearing No.NIT No.:-BARC(T)/NRB/GSO/C&M/CMT-140/2021/02
dated 3.2.2021;
Kanchan P Dhuri 5 / 25 WP-6373-2021.odt
(b) this Hon'ble Court be pleased to issue a writ of certiorari or any
other appropriate writ, order or directions in that nature and after
perusing the legality, validity and propriety, quash and set aside the
decision of the Respondent No.1 declaring the Respondent No.2 as a
successful bidder in respect of tender No.NIT
No.:-BARC(T)/NRB/GSO/C&M/CMT- 111/2021/20(04) dated
2.7.2020 and consequent work order dated 5.3.2021;
(c) this Hon'ble Court be pleased to issue a writ of certiorari or any
other appropriate writ, order or direction in that nature and after perusing
the legality, validity and propriety, quash and set aside the decision of the
Respondent No.1 thereby declaring the Respondent No.2 as a successful
bidder in respect of tender notice bearing No. NIT
No.:-BARC(T)/NRB/GSO/C&M/CMT-140/2021/02 dated 3.2.2021;
(c-1) this Hon'ble Court be pleased to issue a writ of certiorari or any
other appropriate writ, order or directions in that nature and after
perusing the legality, validity and propriety thereof, quash and set aside
the decision of Respondent No.1, thereby declaring the Respondent No.2
as a successful bidder and awarding him contract in respect of tender No.
BARC(T)/RSWM/PM/AS/OPA-8100 (Exhibit-I) and consequent Work
Order No. BARC/NRB/RW/PM/2021/OPA150 dated 12.10.2021 and
tender No. BARC(T)/RSWM/OPN/DC/2021/OPA-14911 dated
26.3.2021 (Exhibit J to the Petition) and consequent Work Order No.
BARC(T)/RSWM/OPN/DC/2021/OPA-51;
(c-2) this Hon'ble Court be pleased to declare and hold that the
Respondent No. 2 is ineligible , disqualified and not entitled to participate
in respect of tender Nos. (i) NIT NO. BARC(T) /
NRB/GSO/CSM/CMT-143/2021/09 dated 18.04.2021 (Exhibit K to the
Petition), (ii) NIT NO. BARC(T)/NRB/INRPRO/COL-07/2021/11
dated 26.08.2021 (Exhibit-L to the Petition), (iii) NIT NO.
NRB/RSWM/ASFSF/2021/OPA-109444 dated 2.09.2021 (Exhibit M to
the Petition) (iv) NIT No. BARC(T)/NRB/INPRO/UTFF/2021/70
Kanchan P Dhuri 6 / 25 WP-6373-2021.odt
dated 7.09.2021 (Exhibit N to the Petition) and (v) NIT No.
BARC(T)/INPRO(O)/NRB/GEN/07/HPU/2021/64 dated 24.09.2021
(Exhibit O to the Petition);
(d) this Hon'ble Court be pleased to issue a writ of mandamus or any
other appropriate writ, order or directions in that nature, directing the
Respondent No.1 to strictly implement the order dated 9.7.2020 (Exhibit
A hereto) issued by the Respondent No.1 and thereby debar the
Respondent No.2 in participating in any of the tender work in future;"
5. The facts in the matter are briefly set out hereunder :
BANNING ORDER AGAINST RESPONDENT NO.2
6. The subject tenders issued by BARC all contain identical eligibility clauses
requiring that:
"3. The bidder should have the following:
(m) Contractor shall furnish declaration that he has not been
debarred from tendering by any authority/agency"
"7. ..Even though any bidder may satisfy the above requirements, he
should be liable to disqualification, if he has
- Made any misleading or false representation or deliberately
suppressed the information in the forms, statements and enclosures
required in the eligibility criteria document,
- Record of poor performance such as abandoning work, not
properly completing the contract or financial failures/ weaknesses
etc.
9. The date of opening of Financial bid shall be conveyed to the
bidders whose Part-A(Documents related eligibility criteria) is found
satisfactory to the department and Part-B(Financial Bid) of such
Kanchan P Dhuri 7 / 25 WP-6373-2021.odt
bidders only shall be opened.
34. ...The documents related to eligibility criteria will be
evaluated and accordingly tenders will be qualified.."
7. The controversy at hand arises from the fact that Respondent No.2 was
admittedly 'banned' by NPCIL. In this behalf, the relevant facts are that in or about
2019, Respondent No.2 had participated in and was declared as a successful bidder in
a tender floated by the NPCIL for hiring of material handling equipment. A Work
Order was issued by NPCIL in the name of Respondent No.2. However, Respondent
No.2 refused to accept the Work Order, apparently on the ground that it was no longer
commercially viable.
8. On 7th October 2019, NPCIL issued a Show Cause Notice to Respondent
No.2, asking Respondent No.2 to show cause why it should not be banned from
participating in any tender of NPCIL for a period 2 years. Respondent No.2 filed a
detailed reply dated 19th October 2019 to the Show Cause Notice issued by NPCIL.
Respondent no.2 inter alia submitted that that the Work Order which it had refused on
the grounds that it was commercially unviable, was being re-tendered for Rs.
94,01,750/-. This was a significant revision upwards from the earlier estimation of Rs.
51,81,436/-.In fact, according to Respondent No.2, this was evidence of un-viability.
9. While the proceedings before NPCIL were still ongoing, on 2 nd July,
2020, BARC floated NIT No. BARC(T)/NRB/GSO/C&M/CMT-111/2021/20(04)
viz. the 1st tender under consideration in these proceedings.
Kanchan P Dhuri 8 / 25 WP-6373-2021.odt
10. Soon after the 1st tender was floated, on 9th July, 2020, NPCIL passed an
order ("'Banning Order') banning Respondent No.2. The Banning Order inter alia
stated as follows:
'Now therefore you/ your firm M/s Shree Gajanan Facilities Pvt. Ltd is
hereby 'Ban for making any kinds of business with the Corporation in
future for the period of 02 (two) years at Tarapur, Maharashtra Site and all
other entire Units-Sites as well as all projects of NPCIL across the
country, w.e.f receipt of this order of 'Banning'
11. One of the enumerated effects of the Banning Order was that
Respondent No.2 would not be allowed to submit a bid. Another effect was that
Respondent No.2 would not be allowed to participate in any business in its own name
or as a sub-vendor or sub-contractor and any bids already submitted would be rejected.
The ban imposed under this Order appears to have been limited to NPCIL. However,
a copy of this Order was marked, inter alia to the BARC.
12. Respondent No.2 submitted its bid in response to the 1 st Tender, after
the Banning Order was passed. As aforesaid, Clause 3(m) of the Notice inviting the 1 st
tender required Respondent No.2 to submit a declaration to the effect that it "not been
debarred from tendering by any authority/agency". Respondent No.2 submitted a
declaration to BARC stating that they have not been debarred by any authority/
agency of BARC-NRB. It however, also stated that:
"However, recently, M/s NPCIL-Tarapur has issued notice for banning of
business with NPCIL unilaterally. Hence, we have initiated procedure for
Kanchan P Dhuri 9 / 25 WP-6373-2021.odt
revoking the said notice".
13. Two things are therefore immediately apparent: First, Respondent No.2
added the words "of BARC-NRB" in its declaration. This, to our mind, is because it
was aware that it could not make the declaration as required under the tender. Second,
the word "Notice" for banning was clearly incorrect, there was an Order of Banning.
14. Respondent No.2 challenged the Banning Order by filing a Suit before
the Ld. Civil judge, Senior Judge, Palghar. As the following paragraphs will show, the
motion filed seeking interim reliefs eventually came to be dismissed.
CREATION OF A FRESH PROFILE ON THE TENDER WIZARD PORTAL
15. Pursuant to the Banning Order, Respondent No.2 was reflected as
"blacklisted" on the Tender Wizard portal, a centralised portal through which bids
were to be submitted.
16. Ordinarily, the reflection of its status as "blacklisted" would have
prevented Respondent No.2 from placing its bid for any tender floated by the BARC
through the Tender Wizard Portal. However, Respondent No.2 participated in the 1 st
Tender by creating a fresh profile on the Tender Wizard Portal. Respondent No.2
created a new User ID, linked to a different email ID, and DSC Serial number etc on
the Portal. Respondent No.2 also reflected its status as an "individual" despite being a
company.
Kanchan P Dhuri 10 / 25 WP-6373-2021.odt
17. Respondent No.2 does not dispute the fact that it created such a fresh
profile. However, Respondent No. 2 has submitted before us that it was justified in
creating a fresh profile. Respondent No.2 claims that although the Banning Order
applied only to tenders issued by NPCIL, the Tender Wizard Portal incorrectly
blocked Respondent No.2 from placing its bid in respect of any and every tender
issued through the Portal. It appears that Respondent No.2 wrote to NPCIL on 26 th
August, 2020, expressing its grievance that the Tender Wizard portal had blacklisted
them from all other tenders, apart from those issued by NPCIL. Respondent No.2
sought that their User ID be unblocked in respect of all other agencies. NPCIL
addressed letters dated 28th August, 2020 and 15th September 2020 to the Tender
Wizard Portal, asking them to introduce the necessary feature for unit-wise banning.
18. Respondent No.2 claims that on 16th September 2020, the DAE
Helpdesk/ Support Desk of the Tender Wizard Portal wrote to Respondent No.2,
noting that they had created a new ID and stating "Please note that you can participate in
the tender called by other DAE Departments with new credentials, except NPCIL". It is in
light of the correspondence exchanged that, on or about 15 th September 2020,
Respondent No.2 created a new profile and submitted its bid.
19. The Petitioner submits that a week later, on or about 22 nd September
2020, it found out about the Banning Order against Respondent No.2. The Petitioner
accordingly filed a complaint with BARC, claiming that Respondent No.2 had
Kanchan P Dhuri 11 / 25 WP-6373-2021.odt
defrauded BARC.
20. Roughly two months later, on 5 th November 2020, Respondent No.2
moved an interim application for injunction before the Ld. Civil Judge, Senior
Division, Palghar, seeking an injunction on the Banning Order. By an Order dated 12 th
November 2020, the Ld. Civil Judge, Senior Division, Palghar directed NPCIL and
Respondent No.2 to maintain "status quo".
21. In the meantime, the Tender Evaluation Committee of the BARC
examined the bids submitted in response to the 1 st tender. A letter of offer was issued
to Respondent No.2 on 5th February, 2021 and a Work Order followed on 5 th March
2021. Respondent No.2 is now on site and carrying out work.
22. It appears that the BARC took up the Petitioner's Complaint dated 22 nd
September 2020 only on 9th March 2021, pursuant to an email from the office of the
Secretary of the Department of Atomic Energy. The Complaint was disposed off with
the remark "No further Action" on the grounds that the Banning Order is restricted
only to NPCIL Tenders.
23. In the meantime, BARC called for the 2nd Tender dated 3rd February,
2021 in respect of work of maintenance of lawns, shrubs, hedges and plant
installations at the BARC Plant Site, Tarapur, for the year 2021-2023. The Petitioner
and Respondent No.2 participated in the 2nd Tender.
24. The Tender Evaluation Committee, by its Report dated 13 th July, 2021
Kanchan P Dhuri 12 / 25 WP-6373-2021.odt
once again found Respondent No.2 to be qualified in respect of the 2 nd Tender.
Although the Report makes no express reference to the Notice Inviting Tender or the
Banning Order, it observes that Respondent No.2 is qualified for participation in
opening Financial Bid "subject to acceptance of debar document by Competent
Authority".
25. The Committee recommended that a Work Order be issued to
Respondent No.2. Such a Work Order is yet to be issued.
26. In these circumstances on 2nd September, 2021, the Petitioner filed this
Writ Petition. The matter was heard including on 11 th October 2021, when we were
informed that the Banning Order was impugned before the Ld. Civil Judge, Senior
Division, Palghar, who had by Order dated 12 th November, 2020, directed parties to
maintain "status quo".
27. We were informed that the Ld. Judge had heard the Interim Application
and had listed the matter for orders. Accordingly, the matter was kept on 21 st October,
2021 when the Order was forwarded to us in a sealed cover.
28. By an Order dated 20th October 2021, the Ld. Civil Judge, Senior
Division, Palghar rejected Respondent No.2's Application for interim relief against the
Banning Order. Respondent No.2 filed an appeal against the aforesaid Order before
the Learned Additional District Judge, Palghar, who also dismissed the appeal. Thus,
the said Banning Order is effective and in force till today.
Kanchan P Dhuri 13 / 25 WP-6373-2021.odt
29. Respondent Nos. 1, 2 and 4 have filed detailed Affidavits dated 25 th
October 2021, 16th November 2021 and 22nd November 2021. On our direction,
Respondent No.1 also filed an Additional Affidavit dated 22 nd November 2021 placing
on record the Reports of the Tender Evaluation Committee.
30. On 10th December 2021, Mr. Venkatesh Dhond, Senior Advocate was
appointed as Amicus Curiae in the matter. The Ld. Amicus Curiae has submitted a
Note to assist this Court in the matter.
31. The Petitioner and Respondent Nos. 3 also filed Written Submissions.
The Advocate appearing for Respondent No.2 stated that since he has filed a detailed
reply, he is not desirous of filing any written submissions.
32. We have heard the parties and the Amicus Curiae and perused the
written submissions.
PETITIONER'S SUBMISSIONS
33. The Petitioner submits that the eligibility criteria in all subject tenders
are clear. The subject tenders clearly require the bidder to "furnish declaration that
he has not been debarred from tendering by any authority/agency". The criteria is
general and not limited to any authority/ agency "of BARC". Petitioner submits that
Respondent No.2 having been banned by NPCIL by its Banning Order, could not have
submitted such a declaration or participated in the subject tenders.
Kanchan P Dhuri 14 / 25 WP-6373-2021.odt
34. The Petitioner contends that Respondent No.2 participated in the
tender by playing a fraud upon Respondent No.1. It attempted to illegally circumvent
the criteria by a clever use of words. The declaration submitted by the Respondent
No.2 to the effect that NPCIL had issued "notice for banning business unilaterally"
when, in fact, a Banning Order was passed, is false. By virtue of submitting a false
declaration, the Petitioner submits that Respondent No.2 is in violation of the
conditions of the NIT.
35. As to the correspondence exchanged by NPCIL with the Tender Portal,
the Petitioner points out that as on the date Respondent No.2 submitted its bid, the
unit wise banning feature on the Tender Wizard Portal was not in place. It is only after
creating a fresh profile to bypass the restrictions on the Tender Wizard Portal, that
Respondent No.2 obtained a clarification from the Tender Wizard Portal permitting it
to do so. The Petitioner contends this is also a fraud.
RESPONDENTS' SUBMISSIONS
36. Respondent No.1 initially filed a detailed Affidavit, submitting that :
(a) While the NIT requires that bidders submit a declaration to the effect
that s/he has not been debarred by any authority/ Agency, "there was no specified pre-
bid condition or pre-qualification criteria regarding that, Firm-Company black-listed/
debarred/ or banned from any other government establishment or institutions may having
Kanchan P Dhuri 15 / 25 WP-6373-2021.odt
disqualification from submitting of bid."
(b) Banning Order of NCPIL is not applicable to BARC.
(c) Respondent No.2 has submitted the "desired declaration" in compliance
of the NIT.
37. Respondent No.1 also relied upon an office order issued by the Central
Vigilance Commission stating that banning of a business is an administrative matter to
be decided by the management of the organisation. Respondent No.1 has produced the
Department of Atomic Energy's own internal procedure to ban/ debar contractors.
38. The Advocate for Respondent No.2 submitted as follows:
(a) That entire Petition suffers from grave delay and laches and therefore,
ought not be allowed.
(b) That Banning Order does not prevent Respondent No.2 from doing
business with units other than NPCIL. Therefore, he submitted that the Banning
Order does not render Respondent No.2 ineligible to participate in the subject
tenders.
(c) That the Banning Order is not an order of "debarment". According to
Respondent No.2, the tender criteria required a declaration to the effect that " he has
not been debarred from tendering by any authority/agency". An Order of Banning is
on a different footing and is not covered by the declaration.
(d) As to the Petitioner's contention that a false declaration had been
Kanchan P Dhuri 16 / 25 WP-6373-2021.odt
submitted, Respondent No.2 submits that the use of the word "notice" instead of
"order" in its aforesaid declaration was inadvertent.
(e) Advocate for Respondent No.2 also placed reliance upon the entire
chronology of facts which led to Respondent No.2 creating a fresh profile on the
Tender Wizard Portal. The Ld. Advocate drew our attention to the correspondence
exchanged between NPCIL and the Tender Wizard Portal. He submitted that the
Banning Order applied only to NPCL. However, the Tender Wizard Portal wrongly
blocked Respondent No.2 from bidding for any tender whatsoever. Respondent No.2
thus contended that when this was pointed out, NPCIL itself wrote to the Tender
Wizard Portal requesting them to introduce a unit-wise banning feature. As such a
feature was not yet available, by the email dated 16 th September 2020, "DAE Support
Desk" permitted it to create a fresh profile in order participate in the subject tenders.
According to Respondent No.2, this means that the Department of Atomic Energy
(Respondent No.4) and NPCIL have itself permitted Respondent No.2 to participate
in the subject tenders.
(f ) That Respondent No.2 is challenging the Banning Order, which is even
otherwise malafide and bad in law. Respondent No.2 claims that the Banning Order is
motivated by independent arbitral proceedings pending between NPCIL and
Respondent No.2, where NPCIL has been directed to deposit monies.
Kanchan P Dhuri 17 / 25 WP-6373-2021.odt
39. Apart from the above, Respondent No.2 took issue with the Petitioner's
attempt to impugn various tenders that the Petitioner had not even bid for/
participated in. He contended that the Petitioner had no "locus" to do so.
40. The Advocate for NPCIL, in response to Respondent No.2's contention
that the Banning order is in substance different from an order of debarment, drew our
attention to Clause 3.6 of NPCIL's policy, which clearly states that,-
"3.6 Banning of Business Dealing- An Administrative penalty
disqualifying a person or an entity from participating in any business
process for a given period and shall include suspension, withholding,
debarring, delisting, cooling periods, blacklisting of business dealings,
holidaying or any other word/attribute inferring to discontinuation of
business relation in any form."
41. The Advocate for Respondent No.3 therefore submitted that its Banning
Order was in substance an order of debarment. Therefore, Respondent No.3
submitted that by virtue of the Banning Order, Respondent No.2 was "debarred from
tendering by any authority/agency", and consequently, was disqualified from
participating in the subject tenders.
42. The Learned Addl. Solicitor General, who appeared for the Department
of Atomic Energy (Respondent No.4, which is also the nodal agency of Respondent
No.1) drew our attention to the Affidavit tendered by the Department of Atomic
Energy. He clarified that an email from "DAE Support Desk" authorising Respondent
Kanchan P Dhuri 18 / 25 WP-6373-2021.odt
No.2 to create a fresh profile on the Tender Wizard Portal should not be viewed as an
authorisation/ permission granted by the Department of Atomic Energy to
Respondent No.2 to participate in the subject tenders. "DAE Support Desk" is
distinct from the Department of Atomic Energy. It is a helpdesk developed by the
Tender Wizard Portal, operated and maintained by Indian Telephone Industries Ltd.
"DAE Support Desk" is therefore a third party that monitors tenders issued by the
Department of Atomic Energy on the Tender Wizard Portal and is not the same as the
Department.
43. At a subsequent hearing dated 24th January 2022, we recorded his fair
statement that "the Brief Note prepared by the learned Senior Advocate Shri Dhond,
appears to be fair and therefore, he relies on the same and is submitting to the orders of the
Court."
SUBMISSIONS OF THE AMICUS CURIAE
44. The Amicus Curiae submitted that the Banning Order, for all intents and
purposes was an Order of 'debarment' and was required to be disclosed under the
Tender. Thus, in light of the Banning Order, Respondent No.2 had been "debarred
from tendering by any authority/agency" and according to Clause 3(m) of the subject
tenders, was ineligible to participate in the subject tenders.
45. He submitted that Respondent No.2 in its declaration only stated that
Kanchan P Dhuri 19 / 25 WP-6373-2021.odt
there was a "notice for banning of business with NPCIL", when, in fact, it was aware
that there was an "Order of" Banning. Further, Respondent No.2 had carefully
avoided making a declaration to the effect that it had "not been debarred from
tendering by any authority/agency". Instead, Respondent No.2 added words of
qualification and stated that it had not been debarred by "any authority/ agency of
BARC-NRB". These words are absent in the tender. Thus, he submitted that not
only was Respondent No.2's bid in violation of the eligibility criteria under Clause
3(m) of the tender, but the declaration submitted by Respondent No.2 was also
misleading.
46. He, therefore, submitted that Clause 7 of the eligibility criteria, which
stated that a bidder was liable for disqualification if he submitted a false declaration,
was also attracted.
47. He further submitted that Respondent No.2's submission that it was
authorised to create a fresh profile on the Tender Wizard Portal, even if correct, would
have no real bearing at all on the issue at hand, which is whether or not Respondent
No.2 is eligible to participate in the subject tenders. The issue has to be determined
solely with reference to Respondent No.1's own eligibility criteria and whether they
allowed a bidder who was banned/debarred by another agency to participate in the
subject tenders. Thus Mr. Dhond submitted that (i) the fact the terms of the Banning
Order restricted the ban on Respondent No.2 solely to NPCIL tenders and (ii) that
Kanchan P Dhuri 20 / 25 WP-6373-2021.odt
NPCIL accordingly requested the Tender Wizard Portal not to impose a blanket ban
on Respondent No.2 from participating in government tenders, have no bearing on the
issue at hand.
REASONS AND FINDINGS:
48. The requirements in a tender notice can be classified into two categories
--those which lay down the essential conditions of eligibility and the others which are
merely ancillary or subsidiary with the main object to be achieved by the condition. In
the first case the authority issuing the tender may be required to enforce them rigidly.
In the other cases it may be open to the authority to deviate from and not to insist
upon the strict literal compliance of the condition in appropriate cases.
49. First and foremost, Clause 3(m) of the subject tender requires
Respondent No.2 to submit a declaration to the effect that it has "not been debarred
from tendering by any authority/agency". Clause 3(m) is one amongst a list of 'Initial
Eligibility Criteria" which open with the phrase "the bidder should have the following".
Clause 9 of the tender states the documents relating to the eligibility criteria will be
evaluated, and the financial bid of only those bidders whose documents relating to the
eligibility criteria are found to be satisfactory will be opened. Clause 34 reiterates that
"documents related to the eligibility criteria will be evaluated and accordingly tenderers will
be qualified".
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50. From a reading of the subject tenders therefore, we find that Clause 3(m)
of the tender is an essential condition of the tender which goes to root of the eligibility
of persons who make offers under the tender.
51. It is well settled in law that an essential condition of a tender has to be
strictly complied with. We find that the natural and obvious corollary of Clause 3(m) of
the tender is that a bidder who has been "debarred from tendering by any
authority/agency" is liable to be rejected straightaway.
52. The only question that arises, therefore, is whether Respondent No.2 is
in violation of Clause 3(m) of the subject tenders.
53. We reject the contention taken by Respondent No.1 in its Reply Affidavit
that the tender condition merely required a declaration to be submitted, and so long as
the "desired declaration" was submitted, whether or not a bidder was actually
debarred is irrelevant. That would render the eligibility criteria of the tender
completely redundant. It would tantamount to placing a premium on dishonesty.
Indeed, no purpose whatsoever will be served by asking bidders to disclose whether or
not they are debarred, if the consequence is that even those making false declarations
are eligible to participate in the tender.
54. Similarly, we are unable to accept the contention that the Banning Order
has no effect on the eligibility of Respondent No.2, as it is not an order of debarment.
We find that the Banning Order was nothing but an order of debarment. This is
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apparent from the words of the Banning Order itself, which states that "the committee
[of NPCIL] has taken unanimous decision for 'debarring you/your firm" from dealing
any kinds of business with the 'Corporation' for the period of two years in public interest." It
is also evident from the policy of NPCIL to which the Advocate for Respondent No. 3
drew our attention, which treats debarment and "or any other word/attribute
inferring to discontinuation of business relation in any form" as one and the same.
55. Turning next, to the contention that the Banning Order applies only to
NPCIL, we are of the considered view that what is really relevant is the requirements
of the subject tender. What is of importance is that the subject tenders themselves
require that Respondent No.2 "has not been debarred from tendering by any
authority/agency". It is not in dispute that by virtue of the Banning Order,
Respondent No.2 has been so debarred. Once the factum of debarring is established,
the fact of debarring would operate to make Respondent No.2 ineligible to participate
in the subject tender on the basis of the tender terms. In such circumstances, the
inevitable conclusion that follows is that Respondent No.2's bids are in violation of
Clause 3(m) of the tender and are liable to be rejected as ineligible.
56. We find that the Tender Evaluation Committee of the BARC, in its
Report dated 28th December, 2020 in respect of the 1st Tender, has not considered
these aspects before concluding that Respondent No.2 is a "qualified" bidder. In so
far as the 2nd tender is concerned, the Tender Evaluation Committee of the BARC
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recommended that Respondent No.2 is qualified for participation in opening Financial
Bids "subject to acceptance of debar document by Competent Authority". Thus, even
according to Respondent No.1, the Banning Order was extremely relevant. However,
in spite of these observations, Respondent No.1 eventually decided to award the 2 nd
tender to the Respondent No.2.
57. The next submission raised was that the Writ is delayed. Respondent
No.2 submits that although the Work Order in respect of the 1 st tender was awarded
on 5th March 2021, the Writ Petition was filed on 2 nd September 2021. We do not find
any undue delay in the present case, especially in light of the circumstances including
the second wave of COVID-19 prevailing in early 2021. Moreover, in light of our
categorical findings that the work orders that have been awarded to Respondent No.2
are ex-facie in violation of the tender conditions, even if there is a slight delay, we find
that it is not fatal to the Petition being entertained.
58. We also reject the submission that we must not interfere with those
tenders where the Petitioner is not a competing bidder. At any rate, in light of our
finding that the tenders have been awarded/ work orders been issued in contravention
of essential conditions in the tender, we cannot allow such illegalities to stand on the
basis of a mere technicality.
59. The next question that we must consider is how Respondent No.2 came
to create a new Profile on the Tender Wizard Platform. We find that this need not
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detain us at all. The question before us is whether Respondent No.2's bid was eligible
in light of the tender conditions. We have already noted that in light of the plain
language of the subject tenders, we cannot but conclude that the bid was ineligible. In
the circumstances, how and in what manner Respondent No.2 submitted the bid and
whether it did so with the blessings of NPCIL has no bearing on the lis before us.
60. Similarly, Respondent No.1's reliance on its own internal procedure on
when a bidder may be banned is not germane to the issue at hand. The issue at hand is
not whether Respondent No.1 has banned Respondent No.2, but whether Respondent
No.2 is eligible to participate in the subject tenders, despite having been banned by
another agency, in the context of the specific terms of the BARC tender itself.
61. In light of our findings above, we come to the question of what reliefs
the Petitioner is entitled to. The subject tenders before us are of two varieties. The
first group, enlisted in Para 1 of our Order and prayer clauses (b), (c) and (c-1), are
those where the decision to award the tender to Respondent No.2 has already been
made. As far as the first group is concerned, we have already found that Respondent
No.2's bid was in violation of the tender condition. In the circumstances, we quash
and set aside the decision of the Respondent No.1 to award the aforesaid tenders to
Respondent No.2. This Writ Petition is allowed in terms of prayer clauses (b), (c) and
(c-1) above. However, we clarify that Respondent No.2 is at liberty to award the
tenders to any other bidder and/or to issue a fresh notice inviting tender.
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62. As far as the second group of tenders at Para 2 of our Order and prayer
clause (c-2) is concerned, it is an admitted position that these tenders are yet to be
opened and awarded. We find it entirely premature at this stage to pass any Orders in
respect of the tenders. We find no reason to presume that Respondent No.1 will not
evaluate the bids in accordance with law and the tender conditions themselves. Thus,
we find no reason to grant any reliefs in terms of prayer clause (c-2). We clarify that
the Petitioner is at liberty to file appropriate proceedings as and when the tenders are
opened and the bids are awarded, if the need arises.
63. No order as to costs.
( MILIND N. JADHAV, J. ) ( S.J. KATHAWALLA, J. )
In view of the request made by the Learned Advocate appearing for the
Respondent No.2, the direction/order in paragraph 61 above will not be implemented
for a period of two weeks from today.
( MILIND N. JADHAV, J. ) ( S.J. KATHAWALLA, J. )
