Design Dialogues India Pvt. Ltd. vs N.D.M.C.
2009 Latest Caselaw 2522 Del

              THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment delivered on: 08.07.2009

+      W.P.(C) 9884/2009

DESIGN DIALOGUES INDIA PVT. LTD.                                   ..... Petitioner


                                   - Versus -

N.D.M.C.                                                          ..... Respondent

Advocates who appeared in this case:-

For the Petitioner : Mr. Rajeeve Mehra, Sr. Advocate with Mr. S.S. Sastry, Advocate and Mr.Rishi Manchanda, Advocate.

For the Respondent : Ms. Madhu Tewatia, Advocate with Ms. Sidhi Arora, Advocate.

CORAM:-

HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MS. JUSTICE VEENA BIRBAL

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

BADAR DURREZ AHMED, J (oral)

CM No. 8129/2009 in W.P.(C) No 9884/2009

Allowed, subject to just exceptions.

W.P.(C) No 9884/2009 & CM No. 8128/2009

This writ petition is concerned with the e-Procurement Tender Notice

No. 10065 (this number has been provided by the counsel for the respondent

although it does not appear in the documents filed by the petitioner)

pertaining to installation of road signages in the NDMC area. The petitioner

was initially aggrieved by Clauses 3, 4, 7(a), 15 and 22 of the eligibility

criteria prescribed in respect of the said tender. However, in the course of

arguments, the learned counsel for the petitioner has focused mainly

on Clauses 4 and 7(a) and incidentally on 7(b) of the said eligibility criteria.

The relevant clauses read as under:-

"4. The Bidder should registered with Excise Department and should enclose Excise Registration Certificate Number along with the Technical Bid."

XXXX XXXX XXXX XXXX XXX "7.(a) A current dated authorization certificate issued by the Micro prismatic type IX Retro reflective sheeting manufacturer stating that the contractor is authorized converter. The certificate should be in original and issued by the retro reflective sheeting manufacture or its subsidiary in India. Certificate issued by distributor dealer/power of attorney holder shall be invalid.

(b) A seven year pre qualification warranty, in original, issued by the retro reflective sheeting manufacturer or its subsidiary in India. The warranty shall be for Micro prismatic retro reflective sheeting confirming to ASTM D-4956-07 Type IX sheeting and MORTH performance parameters. The warranty should be in original and jointly signed by the authorized converter."

With regard to Clause 4, the learned counsel submitted that this

condition of being registered with the Excise Department is not at all

germane to the tender in question inasmuch as the NDMC is the final

consumer and would not benefit in any way by the requirement of Excise

Registration from its supplier. The learned counsel for the respondent

submits that the requirement of Excise Department Registration is not

unreasonable. According to her, this requirement has been inserted to ensure

that it is only those persons who have the wherewithal to cater to the

requirements of the tender that should participate in the tender. According

to her, the parties which are not registered with the Excise Department

would be too small to carry out the magnitude of the work involved. The

learned counsel for the respondent also submits that since fabrication is

involved and a new product comes into being, the question of manufacture

would also arise and for this purpose the Excise Department Registration

would be necessary.

With regard to Clause 7(a) of the said eligibility criteria, the learned

counsel for the petitioner submitted that there are only two manufacturers of

Micro prismatic type IX Retro reflective sheeting. They are "3M" and

"Avery Dennison". Both these manufacturers are located abroad. He

submits that in any event, any party who responds to the tender in question

would be sourcing the material from either of the two manufacturers.

Therefore, the condition of requiring the bidder to be an authorized

converter is wholly unconnected with the object that is sought to be

achieved. According to him, the object that is sought to be achieved is that

Micro prismatic type IX Retro reflective sheeting be used. In so far as the

certificate of quality is concerned, the learned counsel for the petitioner

submitted that even though the petitioner is not an authorized converter, it

would, undoubtedly, be necessary to get that certificate from the

manufacturer, i.e. either "3M" or "Avery Dennison". It was also his

contention that the challenge to this Clause is also on the ground that it

narrows down the field of potential bidders and therefore would tend to be

detrimental to the respondents in the sense that a lower bid price would not

be available to them. It is for these reasons that he submits that the said

Clause is unreasonable and arbitrary and therefore should be deleted from

the eligibility criteria. Incidentally, he also challenged Clause 7(b) of the

eligibility criteria but, only to the limited extent that the expression

"authorized converter" is used therein. Insofar as the other stipulations with

regard to pre-qualification warranty are concerned, he, however, had no

grievance.

The learned counsel appearing on behalf of the respondent submitted

that Clause 7(a) which stipulated the requirement of the bidder being an

authorized converter of the sheet manufacturer is not at all unreasonable.

She submitted that these road signages are required to be completed within a

period of 10 months and require specialized handling and is a highly

technical job. She submitted that there is no doubt that there are only two

manufacturers of Micro prismatic type IX Retro reflective sheeting and that

they are "3M" and "Avery Dennison". She, however, submitted that both

these manufacturers have supplied lists of their authorized converters.

According to her, there are a total of 49 authorized converters. She stated

that she would be filing an affidavit to this effect in the course of the day.

She also clarified on instructions from Mr. K.L. Suri, Executive Engineer,

Roads-II (Civil), N.D.M.C. who is present in court, that the requirement of

the bidder being an authorized converter is in relation to Micro prismatic

Retro reflective sheeting not necessarily restricted to „Type IX‟. Although,

the product that has to be supplied and used is Micro prismatic type IX Retro

reflective sheeting of the specifications indicated in Clause 7(b) itself. Thus,

according to the learned counsel for the respondent, there is nothing

unreasonable or arbitrary about Clause 7(a) inasmuch as there are a large

number of authorized converters who would all be entitled to participate in

the said tender.

Having heard the counsel for the parties, we are of the view that

insofar as Clause 4 is concerned, the reasoning adopted by the learned

counsel for the respondent is clear and acceptable. There is nothing

unreasonable or arbitrary about the insistence on registration with the Excise

Department. The work itself is estimated at about Rs. 3,29,66,350/- and

therefore the need of the contractor having substantial infra-structure. This

is also coupled with the fact that there is the issue of whether the activity

itself amounts to manufacture and therefore registration with the Excise

Department would, in any event, be necessary.

With regard to Clause 7(a) of the eligibility criteria, we find that the

requirement of the bidder being an authorized converter is also neither

unreasonable nor arbitrary. There are certain stipulations or conditions which

are necessary before a person is designated by the manufacturer as an

authorized converter. Those stipulations include experience in fabricating sign

boards for making road signs, apart from a few other conditions. It is clear that

the requirement of setting up these road signages is of a technical nature and

requires specialized handling. The condition of requiring an authorized

converter to submit the bid is a step in the direction of selecting the best. This

not only ensures quality but also reliability and the capability of the bidder for

completing the work on time. We are, therefore, of the view that there is

nothing unreasonable or arbitrary about Clause 7(a) of the eligibility criteria.

Consequently, the incidental objection to Clause 7(b) which uses the expression

"authorized converter" would also not stand in the way.

For these reasons, we are not inclined to entertain this writ petition and

the same alongwith CM No. 8128/2009 stand dismissed.

BADAR DURREZ AHMED,J

VEENA BIRBAL, J JULY 08, 2009 kks