Delhi High Court

Sarvesh Security Services Pvt. ... vs Govt. Of Nct Of Delhi & Anr. on 28 July, 2014

Author: Siddharth Mridul

         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Judgment reserved on: 16.05.2014
                                           Judgment delivered on: 28.07.2014

W.P.(C) 7610/2013


SARVESH SECURITY SERVICES PVT. LTD                              ..... Petitioner



                            versus



GOVT. OF NCT OF DELHI & ANR.                                    ..... Respondents
Advocates who appeared in this case:
For the Petitioner  : Mr Suresh Singh, Advocate
For the Respondents : Ms Zubeda Begum, Advocate with Ms Sana Ansari, Advocate



CORAM:
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL


SIDDHARTH MRIDUL, J.

1. The present writ petition has been filed by Sarvesh Security Services

Pvt. Ltd. (herein referred as „petitioner‟) seeking a direction in the nature of

mandamus thereby directing the Government of NCT of Delhi (herein

referred to as „respondent No.1‟) and Medical Superintendent, Aruna Asaf

Ali Government Hospital (herein referred as „respondent No.2‟) to award the

tender for security services to the petitioner company on the basis of the rate

submitted by the petitioner instead of the rate which has been accepted by

the Respondent.

2. Brief facts relevant to the present adjudication are enunciated

hereinafter:-

3. On 20.06.2013, respondent No.2 floated a tender for providing

security services wherein adjacent to the names of the hospitals, the number

or quantity was mentioned as 1. The petitioner believed that the rate for only

one Security Guard was required and participated in the tender process

accordingly, whereas the respondent intended the rate to be for employment

of security guards for the entire hospital.

4. Thereafter, on 01.10.2013 the petitioner company intimated the

respondent that as per the format of the price bid, the rates for one Security

Guard was mentioned.

5. Subsequently, on 29.10.2013 the respondent issued an offer letter to

the petitioner mentioning the total rate of `9264.99 for employment of

security guards for the entire hospital as a unit rather than for one Security

Guard.

6. On subsequent dates also the petitioner company intimated the

respondent that as per the online format of the price bid the rate filled was

for one Security Guard.

7. The respondent responded by reiterating that the bid quotation was

considered on the basis of a hospital being an individual unit. It was further

stated by the respondent that the earnest money deposited by the petitioner

company i.e. `6,50,000 would be forfeited in case of non-execution of the

agreement.

8. The petitioner company vide letter dated 26.11.2013 stated that in

view of the pending disputes between the parties, an impartial arbitrator may

be appointed. The respondent in reply vide letter dated 28.11.2013 rejected

the request of arbitration as no contract had come into existence between the

parties.

9. Learned counsel for the petitioner states that vide letter dated

01.10.2013, it was duly clarified by the petitioner that the rates submitted

were on the basis of per Security Guard. The respondent ignored the letter as

well as the online format of the price bid, and, issued a letter of offer dated

29.10.2013 stipulating to provide Security Guards for the entire Hospital for

a total sum of `9254.99. By such arbitrary act of the respondent, the

effective rate offered per Security Guard was `237.56 per month, which is

against the stipulation of minimum wages of `7722.00, per Security Guard.

10. It is contended that as the respondent modified/altered the tender vide

letter of offer dated 29.10.2013, the petitioner was refrained from executing

the agreement wherein the respondent had deliberately made departure from

per Security Guard rate.

11. It is the grievance of the petitioner that in case the respondent thought

that the bid was unresponsive, the respondent could have merely rejected the

tender rather than forfeiting the earnest money of `6,50,000/- deposited by

the petitioner.

12. It is further contended by the learned counsel for the petitioner that the

respondent has floated a fresh tender for Security Guards dated 18.12.2013,

wherein it has been advised in the Minutes of the Meeting dated 23.12.2013

that the monthly amount shall be for the entire Security Services for each

Hospital. No such advice was provided by the respondent in the tender in

question.

13. Learned counsel for the respondent argues that the present petition as

framed is not maintainable as the petitioner participated in the tender process

with full knowledge of the contents of the tender documents where adjacent

to the names of the hospitals "1" was mentioned, which meant "1" hospital

to be taken as 1 unit.

14. It was further argued that the petitioner was declared the successful

bidder L1 by quoting the lowest price of `46,324.95 for five hospitals per

month and was recommended for providing security services to the five

hospitals by the competent authority. Therefore, the petitioner is estopped

from challenging the terms of the tender after having participated in the

tender without demur on any ground whatsoever.

15. It is further argued that the petitioner had access to all the terms of the

NIT as it was uploaded and was available on the website from 20.06.2013

onwards. An opportunity was given to each of the bidders if they desired to

participate in the pre-bid session which was held on 28.06.2013 and seek any

clarification or remove any doubts. The last date of the submission of the

tender was on 19.07.2013. The pre-qualification bid was opened as per

schedule. The answering respondents received five bid‟s/EMD physically in

tender box.

16. It is further stated that the terms of section 2 clause 13.1 of the tender

documents do not permit modifications or communication with the

department after the submission of the tender documents.

17. It is argued that the petitioner was required to perform its contractual

obligation within the stipulated time of four weeks from 29.10.2013 as per

the letter of offer acknowledged by them, in terms of section 2, clause 17.2

of the tender document failing which any action as deemed fit could be

initiated as per terms and conditions of the tender documents. EMD could be

forfeited as per the terms and conditions of the tender document under

section 2 clause 7.6.

18. Accordingly, the respondent has forfeited the EMD FDR No.2612869

dated 16.07.2013 for `6,50,000/- issued by IDBI Bank, Vaishali Ghaziabad

(U.P.) vide letter dated 03.12.2013 and the petitioner has also been intimated

that fresh e-tender for the security services is being initiated, schedule

prepared and is already uploaded.

19. Reliance was placed upon Air India Limited v. Cochin International

Airport Limited : 2000 (2) SCC 617 by the respondent, wherein it was

observed that the State can choose its own method to arrive at a decision. It

can fix its own terms of invitation to tender and that is not open to judicial

scrutiny.

20. We have heard both sides. Tragically, the instant petition is a

consequence of heightened misunderstanding between the parties. The

respondent having invited cluster bidding to hire services in providing

security was expecting prospective bidders to quote the price as a collective

whole for the five mentioned hospitals. Per contra, the petitioner quoted

price on per head basis consequently, quoting the lowest bid. Annexure A

filed by the respondent evinces the bid quotations by 5 bidders. Four of these

have quoted between `3-6 lakhs and the petitioners bid is `9264.99. At the

very least there is a complete absence of consensus ad idem between the

parties. The quote considered by the respondent if accepted would be less

than the prescribed minimum wages and statutory dues. In that sense the bid

can be said to have been completely unresponsive. The bid of the petitioner

as understood by the respondent cannot therefore, be enforced.

21. The petitioner has prayed in the following terms:

a) Issue a writ of mandamus or any other appropriate writ, order or direction thereby directing the respondents to award the contract of Security Services to the Petitioner Company on the basis of per security guard rates;