Punjab Communications Ltd. (A ... vs Union Of India (Uoi)
1998 Latest Caselaw 971 Del

JUDGMENT

K. Ramamoorthy, J.

1. The petitioner participated in the tender floated by the second respondent, the notice invited tender was issued on 19.11.1996. On 10.12.1996, the petitioner submitted his bid. The tender evaluation report in para 7.3 the Committee was constituted about the lapse on the part of the petitioner while bidding at the earlier tender. Copy of para 7.3 reads as under:

Para 7.3

An advance purchase order was placed on M/s PCL Ltd. vide No.33-801/94-MMC(PCL) dt. 20/23.2.95 for getting their offered equipments (against DoT Tender No. 33-801/93-MMC in 1994) validated by the Department within 3 period of total seven months. They could get their equipment validated in August 96 after along period of about seventeen months. A firm purchase order was then placed on M/s PC.L vide No. CT/PO/027/96-97 dated 26.8.96 for supply of 75 nos. of MCPC-VSAT's. 5 Nos of Hub Station equipments. The Maintenance spares etc. The delivery of all ordered equipment is to be completed within 6 months from the date of issue of P.S. (i.e. by 25th Feb. 1997). M/s PCL have offered only 5 MCPC-VSAT's and 1 Hub Station equipments on 19th Dec. 1996 after almost 4 months (Annexure -IIA). These numbers are very small compared to ordered quantity. All these equipments are required for commissioning at respective sites to achieve this year's target (1955-97). Due to delay in offering a good number of VSATs and Hub Stations equipments to Quality Assurance Wing of DoT, ADG (SAT-I) was deputed to M/s PCL's premises at Mohali, Chandigarh for making assessment of inventory in the plant, assembly and production, testing etc.

As per the report of ADG (SAT-I) attached at Annexure-IIB. It is felt that only 5 VSATs and 1 Hub Station equipments may be available for commissioning by 31st March 1997. The Committee noted that the supply of even single MCPC-VSAT has not commenced and only two months are left for supply of 75 MCPC-VSAT's & 5 Hub Station equipments. Thus, the committee observed that the non-supply of all 75 MCPC-VSAT's and 5 Hub Station equipments within the stipulated delivery period will result in shortfall of annual target of the Department.

In this context, the Committee also noted that M/s PCL were LI during last two tenders. In first tender (N6.33-635/92-MMC) opened on

3.9.1992, M/s PCL could not get their equipment validated and supplied in spite of being L-I. In second tender (No.33-801/93-MMC) M/s PCL again got an APO in February 1995 being the L-I, but could get the equipment validated very late i.e. in August 96 only. Till date, there is neither any supply nor any chance of full supply within delivery schedule as already discussed in preceding paragraphs. This dismal supply record of M/s PCL has made Department's programme suffer serious set-back in satellite based rural telecommunication services. This was viewed seriously by the Committee as a major deficiency on the part of M/s PCL.

2. In its recommendation the Committee had stated:

The following recommendations are made by Tender Evaluation Committee for the consideration of Telecom Commission:

The committee recommends unit basic prices given under para 2 for the procurement of MCPC-VSAT, Hub Station Equipment & 3 are Maintenance Spares. In case the above prices are not acceptable to M/s ITI Limited & M/s ISL Limited, Bangalore then Committee recommends for Global Bidding in view of high cost noted by all the three bidders. Excise duty, Sales Tax & Insurance & Freight charges will be admitted to maximum 15%, 4% & 1% respectively.

The Committee recommends that the purchase order should be placed on M/s ITI Ltd. Bangalore for 50% of tendered quantity and % on M/s ISL Ltd.

In view of the unsatisfactory supply record of M/s PCL in first two tenders as discussed in para No. 7.3, the committee recommends that M/s PCL should be considered only for 15% of tendered quantity subject to the condition that the APO for this, quantity shall be placed on them only after they supply all the equipments as per Purchase Order No.33-8-801/94-MMC/PCL/469 dt. 6th August, 1996 within the specified delivery schedule. If they all to adhere the delivery schedule of purchase order then the above quantity should be divided between remaining two bidders. This is as per the Clause No.8 of Section IV(Special Conditions & Contract) of Tender Bid Document.

The model number of various sub-system of MCPC-VSAT's and Hub Station equipments for which type approval certificate has been issued by Telecommunication Engineering Centre, New Delhi, for M/s ITI Ltd., Bangalore and M/s PCL Ltd., Chandigarh shall be obtained from Telecom. Engineering Centre, New Delhi and shall be indicated in respective purchase order. In case of ISL, the approved model No. of M/s ITI Ltd. shall be indicated in the purchase order.

All the three bidders have complied delivery schedule as per Clause No.7 of Section IV (Special Conditions of Contract) of old document. Same delivery schedule shall be indicated in the purchase order.

Unqualified & Unconditional compliance to all the commercial conditions included in Section II, III & IV of the bid document shall be obtained from all the three bidders before issue of any purchaser order.

3. The petitioner has challenged the decision taken by the second respondent on the basis of the conclusion of the tender Evaluation Committee as being unreasonable and in the earlier tender the petitioner had acted in accordance with law and it was the DoT was guilty of delay.

4. The second respondent had stated that while evaluating the tenders submitted by all the parties, the second respondent had acted in accordance with law and the petitioner has not made out any case for interference under Article 226. When the Tender Evaluation Committee had acted on the basis of the material available on record it is not open to the petitioner to invite this court's attention to go into the question of fact and decide about the validity of the order passed by the second respondent with reference to earlier tenders.

5. I heard the learned Sr.counsel for the petitioner Dr. A.M. Singhvi and Mr. Maninder Singh, learned counsel for respondents 1 to 3 and Mr.Manoj Arora for respondents 4 and 5.

6. The learned Senior counsel for the petitioner Dr. Singhvi submitted that a perusal of the record would show that the DoT had acted contrary to the provisions of the tender document to the earlier tender and the petitioner had acted in accordance with the terms of the contract executed by 30./09.1997. The DoT had taken a very unreasonable stand in deciding the grant of contract only upto the extent of 15%.

7. Mr. Maninder Singh, the learned counsel for respondents 1 and 2 submitted that after the tenders were considered, there was a counter offer by the DoT on the basis of which Respondent Nos 4 and 5 gave their offers and ultimately the Tender Evaluation Committee had granted the tender. According to Mr. Maninder Singh the Tender Evaluation Committee had referred to all the facts and the petitioner is trying to establish that there is no fault on its part. The questions raised by the petitioner are the question of facts and the authority of the Tender Evaluation Committee to scan the offer made by the party cannot at all be challenged by the petitioner.

8. I heard the learned counsel for the parties at length. In the light of the parameters laid down by the Supreme Court with reference to the scope of judicial review in matters like the one before me, I refrain myself to go into the question of fact and the petitioner has not made out any case for interfere with the decision taken by the second respondent.

9. Accordingly, the writ petition is dismissed. There shall be no order as to costs.