Bombay High Court

All Services Global Pvt. Ltd. Through ... vs Union Of India Through Chairman Railway ... on 3 April, 2025

Author: M. S. Karnik

Bench: M. S. Karnik

2025:BHC-OS:6093-DB


                                                                  24.wpl.36915-2024.odt



                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       ORDINARY ORIGINAL CIVIL JURISDICTION

                           WRIT PETITION (L) NO. 36915 OF 2024

              All Services Global Pvt. Ltd.
              Through its Associate Director-Madhukar Darade,
              Plot No.AG-3, Cama Industrial Estate,
              Village Pahadi, Near HUB, Opposite Kusum
              Masala, Goregaon (E), Mumbai-400 063.           ... Petitioner

                            Versus

              1.      Union of India, Through Chairman,
                      Railway Board and Ex-Officio Principal
                      Secretary, Government of India,
                      Ministry of railway, Rail Bhawan,
                      New Delhi - 110 001.

              2.      The General Manager, Central Railway,
                      Chhatrapati Shivaji Terminus, Fort,
                      Mumbai - 400 001.

              3.      Principal Chief Mechanical Engineer
                      Central Railway,
                      2nd Floor, Annexe Building,
                      CST, Mumbai-400 001.

              4.      Sainath Sales and Services Pvt. Ltd.
                      Having its Head office at B-1, Surya
                      Nagar, Ghaziabad, U.P. - 201 011 and
                      branch office at Basement, A-5, 100
                      Futta Road, Kabir Nagar, Delhi-110 094. .... Respondents

                                           ****
              Mr Ashish Kamat, Senior Advocate a/w Ms Surabhi Agrawal,
              Ms Nehal Deshmukh, Mr Anand Poojari, Ms Reet Jain i/b.
              Rahila Memon, for the Petitioner.
              Mr T. J. Pandian a/w Ms Noorjahan Khan, Mr Gautam
              Modanwal, for Respondent Nos.1 to 3.

                                              ****


              PMB                        1
                                                       24.wpl.36915-2024.odt



                  CORAM : ALOK ARADHE, CJ &
                          M. S. KARNIK, J.

                    DATE : 3rd APRIL, 2025

JUDGMENT (PER M. S. KARNIK, J.) :

1. The challenge in this Petition under Article 226 of the

Constitution of India is to the disqualification of the Petitioner

on 25th November 2024 from the tender as published on the

GeM Electronic Portal on the ground of not meeting the

eligibility specified in Clause No.2.6.2.1.1 of the bid document

on technical evaluation. The Petitioner also challenges the

Letter of Intent ("LOI") issued to Respondent No.4 by the

Indian Railway.

2. In a nutshell, it is the case of the Petitioner that it

submitted a bid offer in response to Respondent No.3-

Principal Chief Mechanical Engineer, Central Railway's tender

dated 25th July 2024. Without examining and perusing the

certificates submitted by the Petitioner which comply with the

eligibility requirement of the tender offer, Respondent No.3

summarily disqualified the Petitioner in technical evaluation.

This disqualification is under challenge.

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3. Some basic facts necessary to appreciate the

controversy are that on 25th July 2024 Respondent No.3

floated a tender for various custom bid cleaning services for

its coaches. The bid opening date was prescribed as 16 th

August 2024 at 15:30 hours. The contract period was for four

years. The average turnover of the bidder was Rs.29915 lakhs

(3 years).

4. Mr Ashish Kamat, learned Senior Advocate invited our

attention to the work experience certificates which according

to him clearly make the Petitioner eligible in terms of Clause

No.2.6.2.1.1 of the general conditions of the contract for

services. The bid was displayed at 15:00 hours and was

opened on 15:30 hours on 16 th August 2024. The bid offer

validity was for 90 days. The Petitioner applied for the tender

in compliance with all the relevant requirements. In order to

comply with Clause 2.6.2.1.1 the Petitioner submitted work

completion certificates of similar nature executed with West

Bengal Medical Services Corporation Limited dated 8 th August

2024 and 9th August 2024.

5. Respondent No.3 vide a letter addressed to the Petitioner

dated 3rd September 2024 acknowledged the receipt of the

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two work completion certificates submitted by it and sought

further documents. By a letter dated 4 th September 2024, the

Petitioner submitted further documents as sought for by

Respondent No.3. By a letter dated 17 th October 2024 the

Petitioner requested Respondent No.3 to take note of the fact

that the Petitioner has carried out mechanised housekeeping

work valuing Rs.80,63,80,359/-. The Petitioner again brought

to the notice of Respondent No.3 all other details supporting

the Petitioner's credentials and that the requirement of Clause

No.2.6.2.1.1 is satisfied.

6. Respondent No.3 carried out technical evaluation in

respect of the tender and disqualified the Petitioner. The

Petitioner vide its letter dated 26 th November 2024 to

Respondent No.3 once again reiterated the fact that the

minimum eligibility criteria has been satisfied by the

Petitioner. The LOI was issued to Respondent No.4 on 31 st

December 2024.

7. Mr Kamat, learned Senior Advocate for the Petitioner

submitted that the Petitioner's bid was arbitrarily disqualified.

It is his submission that the Petitioner fulfilled the

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requirements of Clause No.2.6.2.1.1. Learned Senior

Advocate submitted that two work completion certificates

clearly demonstrate that the Petitioner has carried out

mechanised housekeeping work the value of which is satisfied

in terms of the tender. It is submitted that the Respondents

did not raise any queries in respect of the two certificates.

Learned Senior Advocate vehemently urged that there is no

difference in the work completion certificates produced by

Respondent No.4 and that by the Petitioner in which case the

disqualification of the Petitioner is unreasonable. Respondent

No.3 has without application of mind and without examining

the certificates produced summarily disqualified the Petitioner

for extraneous reasons best known to Respondent No.3. It is

therefore submitted that Respondent No.3 has acted unfairly

in disqualifying the Petitioner from tender which action is

unsustainable in law. Learned Senior Advocate relied upon the

comparative analysis between the Petitioner and Respondent

No.4 to demonstrate that the decision to disqualify the

Petitioner is arbitrary. Mr Kamat, learned Senior Advocate was

at pains to point out the Respondents bias and prejudice as

according to him the Respondent No.3 in their affidavit, had

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taken a stand that they would discharge the tender itself if the

Court decided to allow the Petition.

8. Mr Pandian, learned counsel for Respondent Nos.1 to 3

on the other hand submitted that the Respondents have taken

an informed decision to disqualify the Petitioner who was not

fulfilling the required eligibility criteria. Mr Pandian, learned

counsel for Respondent Nos.1 to 3 invited our attention to the

affidavit-in-reply filed on their behalf affirmed by Mr Satish

Chandra Prasad, Chief Rolling Stock Engineer (Coaching),

Central Railway. It is submitted that the technical bid of the

Petitioner was disqualified by the Tender Committee for the

reason that they were not meeting the eligibility criteria.

9. Heard learned counsel.

10. We have perused the copy of the Petition, the affidavit-

in-reply and the materials on record. The subject tender is for

the work of "Mechanised cleaning, watering of rakes including

cleaning of depot premises and provision of On Board

Housekeeping Services in trains at Lokmanya Tilak Terminus

Coaching depot of Mumbai Division-Central Railway". The

special conditions of the tender under condition No.2(A)

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prescribed minimum eligibility criteria / work experience, the

extract of which is reproduced hereunder :-

2. Minimum Eligibility Criteria:

(The below mentioned eligibility criteria shall prevail over the eligibility criteria mentioned in GeM Bid document)

A. Work Experience: The bidder should have satisfactorily completed* in the last three previous financial years and the current financial year up to the date of opening of the tender, one similar single service contract** for a minimum of 35% of advertised value of the bid.

*Completed service contract includes on-going service contract subject to payment of bills amounting to at least 35% of the advertised value of the bid.

**Similar service contract means: "Mechanized cleaning of coaches in any of the coaching depots of Indian Railways AND/OR Mechanized en-route cleaning of trains during their stoppage Railway stations under the "Clean Train Station" scheme.

AND/OR Providing "On Board Housekeeping Services on trains"

AND/OR "Mechanized cleaning of stations in Indian Railways"

AND/OR "Mechanized cleaning activity carried out in public listed company / private company/Trusts having annual turnover of Rs.500 crore and above subject to the credential being issued from their Head Office by a person of the company duly enclosing his authorization by the Management for issuing such credentials"

AND/OR "Mechanized cleaning activity carried out in Airports, Metro-Rail Systems, Central/State Government establishments, Central/State Govt. PSUs"

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11. Further in support of the minimum eligibility criteria, the

bidders were required to submit the documents along with the

bid as per Modified General Conditions of Contract (GCC) as

contained in clause 2.6.2.1.1 thereof which reads as under :-

2.6.2.1.1 The bidder shall submit along with the bid document, documents in support of their claim to fulfil the minimum eligibility criteria as mentioned in the bid. In two packet system of bidding, each bidder shall be assigned score for their technical bid.

In case the bidder has a completed a work which comprise of "similar nature of work" as a part of composite work, then he should furnish the value of component of similar nature of work for evaluating the eligibility, failing which his offer shall be summarily rejected.

The system of assigning score shall be as per Clause-3(C) of the bid document. Bidders who's score shall be 70 or above (as per Clause-3 (C)) shall be qualified for consideration of their financial bids. Bidders who do not meet the minimum qualifying score of 70 shall not be considered further for opening of their financial bids and their bids shall not be considered further for award of the tender.

12. As stipulated in the aforesaid Clause No.2.6.2.1.1 of

modified GCC, if the bidder has completed a work which

comprises of "similar nature of work" as a part of composite

work, then he should furnish the value of component of

similar nature of work for evaluating the eligibility, failing

which his offer shall be summarily rejected. Further, in terms

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of Appendix-I of Chapter 2 of tender documents, the bidders

had to furnish the undertakings which inter alia provided in

Clause 2 & 5 thereof as under :-

"2. I/We the bidder(s) also accept all the conditions of the bid and have signed all the pages in confirmation thereof.' and

5. I/We also understand that my/our offer will be evaluated based on the documents/credentials submitted along with the offer and same shall be binding upon me/us."

13. The Petitioner have in fact furnished such undertaking

along with the bid by signing the Appendix-I. The Petitioner

along with their bid submitted a work completion certificate

dated 9th August 2024 issued by Manager Logistics, M/s. West

Bengal Medical Services Corporation Limited (Wholly owned

by the Government of West Bengal) indicating the name of

the work as 'Award of Contract for Facility Management

Services (Mechanised Housekeeping Services) at Multi/Super

Specialty Hospital in Package B (Agreement dated 6th April

2021 for Package B) with executed value at as

Rs.80,63,80,359.53 with penalty of Rs.50,45,237/- and

performance of the firm as satisfactory. The Petitioner

attached LOAs dated 26th February 2021, 23rd March 2022,

24th March 2023 and 29th March 2024 with period mentioned

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as per April 2021 to March 2022, April 2022 to March 2023,

April 2023 to March 2024 and April 2024 to June 2024

respectively with different yearly rates. According to the

Railways, from the LOAs/Memos', the nomenclature of work

mentioned was Contract for "Facility Management Services" at

Multi/Super Specialty Hospital in Package B without any

mention of Mechanised Housekeeping as mentioned in the

Bracket in the certificate. These LOAs furnished alongwith the

certificate did not contain details of the "Scope of Work" and

details of payments. The Petitioner was asked to furnish the

copy of contract agreement / tender document containing the

details of the scope of work by the Respondents' letter dated

3rd September 2014. In response to the same, the Petitioner

furnished the copies of the contract agreement and tender

document vide their letter dated 4 th September 2024

containing detailed scope of work and details of machineries

involved in the work. Further, the Petitioner also stated that

LOA's submitted indicate that the work is awarded for three

years.

14. According to the Railways, perusal of the tender

document furnished by the Petitioner revealed that the work

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in respect of which the certificate was issued, was a composite

nature of work contract and as also the rate quoted was for

per sq.ft. area for the whole of the composite work. Our

attention is invited to the table below to demonstrate the

stand of the Railways :-

Page No. Document Relevant particulars of Petition 211 Agreement-Para-C Work Name: Facility Management Services (There is no mention of Mechanized Cleaning Services) 219 Bid/Tender "Facility Management Document Services" (There is no mention of Mechanized Cleaning Services) 243 Cl.11.3:Instructions Rates to be quoted as to Bidders : per Bill of Quantity BOQ/Rate to be (BoQ) in the specified quoted format i.e. the rates to be offered by the bidder for providing the integrated facility services for the financial years 2021-

2022, 2022-2023 and 2023-2024 to be quoted in the terms of rate per square foot (serviceable area) per month.

        260       Annexure-C             As per annexure C of
                                         the tender document,
                                         the scope of services
                                         has      been     broadly
                                         classified   into   three
                                         types:
                                         A: Security, Services,
                                         B.Housekeeping



                                                     24.wpl.36915-2024.odt



                                    Services    (including
                                    Pest Control &
                                    Horticulture
                                    Services) & C-Patient
                                    Support Services.
        312/313 Annexure-D          As per Annexure D of
                                    the Tender document,
                                    minimum        list    of
                                    personal to deployed is
                                    mentioned, wherein:
                                    For a 300 bedded
                                    hospital,           total
                                    manpower required
                                    in 3 shifts is 133 nos.
                                    out of which 33 are for
                                    security 51 are for
                                    Patient support and 48
                                    (only 36% of total
                                    manpower) are for
                                    Housekeeping
                                    (including          pest
                                    control              and
                                    horticulture service)

                                    For a 500 bedded
                                    hospital,         total
                                    manpower required
                                    in 3 shifts is 189 nos.
                                    out of which 50 are for
                                    security 70 are for
                                    Patient support and 69
                                    (only 36.5% of total
                                    manpower) are for
                                    Housekeeping
                                    (including         pest
                                    control            and
                                    horticulture service)

15. We find ourselves in agreement with the submission of

learned counsel for the Railways when he submits that on a

perusal of the materials and from the table reproduced

hereinbefore, the work of the Petitioner is composite /

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integrated in nature which includes security services, patient

support services, pest control and horticulture services and

that the Petitioner has not furnished the value of component

of similar nature of work in the certificate which is annexed at

page 260 of the paper-book. No doubt the Petitioner vide

letter dated 17th October 2024 stated that 'Most of the said

facility management work consists of mechanised cleaning'.

The Respondents are of the view that the value of

Rs.80,63,80,359.53 as mentioned in the certificate is for most

of the work consisting of mechanised cleaning but from the

tender document / conditions, the services include various

other components too i.e. security services, patient support

services and the rate quoted is for integrated services at per

sq.ft. area. We have already extracted Clause No.2.6.2.1.1

hereinabove which stipulates the requirement of the bidder

having completed a work which comprise of "similar nature of

work" and in case the bidder has completed work which

comprise of "similar nature of work" as a part of composite

work, then he should furnish the value of component of

similar nature of work for evaluating the eligibility, failing

which his offer shall be summarily rejected.

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16. In such circumstances, if the certificate is not considered

for evaluation and the Petitioner having failed to submit any

other document pertaining to work experiences with the bid,

we do not find any arbitrariness or unreasonableness in the

approach of the Railways for this Court to interdict in the

decision making process.

17. The technical bid was disqualified by the Tender

Committee observing thus :-

"Work Experience Certificate submitted in the tender issued by M/s. WBMSCL dated 08/08/24 and 09/08/24 is for the work which comprises of similar nature of work as a part of composite work and the value of component of similar nature of for evaluating the eligibility is not furnished in the same in line with clause no.1 (modified clause 2.6.2.1.1 of GCC(Services) of chapter 4 of tender document. Hence the Certificate is not considered for evaluation and further no document pertaining to work experience is submitted the bid. Hence the offer is summarily rejected for not fulfilling Minimum Eligibility criteria of Work Experience (Clause 2(A) of Chapter 4 of Tender Document."

18. The same was uploaded on GeM portal on 25 th November

2024 and the unsuccessful tenderers were given two days

time frame for submitting their representation. The Petitioner

vide letter dated 26th November 2024 reconfirmed that this is

a composite work with composite value of Rs.98,12,49,053/-

approximately and actual completion cost of

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Rs.80,63,80,359/- approximately, but the Petitioner nowhere

mentioned anything about value of mechanised cleaning or

value of similar nature of work completed in the referred

contract warranting consideration of their bid.

19. Challenging the LOI of Respondent No.4, the Petitioner

contended that the certificate submitted by Respondent No.4

was similar to that of the certificate submitted by it despite

which the LOA was awarded to Respondent No.4, but the

Petitioner's bid was rejected. According to the Railways this

contention of the Petitioner is not correct for the following

reasons :-

"a) The Respondent No. 4 has submitted a certificate dated 29/07/24, issued by Section Officer (CTB), Directorate of Education, Govt. of NCT of Delhi for the work of Mechanized Housekeeping & Sanitization work containing 262 locations respectively for Govt. Schools, stadia, offices in Cluster A under Directorate of Education, GNCT of Delhi vide GeM Contract no. GEMC-511687785310312 dated 09/02/21 with work commencing on 15/03/21 and work completion date as 31/05/24 and total payment received up to last bill paid is Rs.108,71,28,031/- with penalties imposed is Rs.7,11,659/-. GeM order copy is also submitted which shows the name of work as Hiring of Sanitization service, and mentions vacuum cleaner, vacuum pump & pressure pump. Details of extension letters are also attached.

However, detailed work order copy with details of work was not attached.

b) To get clarity, the work was cross checked on GeM portal and scope of work & list of machinery & material was downloaded. The same shows that work is of mechanised housekeeping with list of machines includes high pressure jet cleaner and single disc scrubber. Further, the scope of the

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work mentions mechanised cleaning using scrubber machines, vacuum cleaners, high pressure jet machines.

c) Also, the credential of the Certificate has been verified from the issuing authority Section Officer (CTB), Directorate of Education, Govt. of NCT of Delhi, which vide their Letter dated 18.09.2024 confirmed the same."

20. Thus, the major difference between credentials of the

Petitioner and Respondent No.4 is that the credential

submitted by the Petitioner is for a combined work with

similar nature of work, whereas in the Petitioner's case

mechanised cleaning is part of the completed composite work.

The Railways as per the tender condition expected that the

tenderer should have submitted the value of similar work in

the composite work, so that the tendering authority would

have evaluated his credential. The Petitioner failed to do so

while submitting the bid and did not do so even after an

opportunity was given which resulted in rejection of their bid,

whereas Respondent No.4 submitted the certificate for the