Delhi High Court
Jagson International Ltd vs Oil & Natural Gas Corporation Ltd on 13 July, 2015
Author: Badar Durrez Ahmed
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 13.07.2015
+ W.P.(C) 6546/2015
JAGSON INTERNATIONAL LTD .... Petitioner
versus
OIL & NATURAL GAS CORPORATION LTD ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr Ajit Sinha, Sr Advocate with Mr Sanjay
Grover and Mr Shivlal Singh
For the Respondent : Mr Tushar Mehta, ASG with Mr Biju P.
Raman, Mr Rajat Nair and Mr Sasi Prabhu
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
CM 11916-11917/2015
Allowed subject to all just exceptions.
WP(C) 6546/2015 & CM 11915/2015
1. The petitioner challenges Clause 4.1 of the Bid Evaluation Criteria of the
subject tender. The respondent (ONGC) had issued an invitation to bid on
24.04.2015 for charter hire of offshore rigs, as detailed in the said notice inviting
tender. The petitioner had earlier been issued a letter of award in respect of its
drilling unit. However, that drilling unit never became functional. There is a
letter on record (Annexure-K to the writ petition) dated 07.05.2014 cancelling the
earlier letter of award. It is specifically stated there in paragraphs 3.0, 4.0, and 5.0
as under:-
"3.0 You failed to mobilise the Drilling Unit in terms of the LOA
and requested for extension of time on several occasions. ONGC
extended the mobilisation period for the Drilling Unit with levy of
liquidated damages, the latest extension being upto 07.05.2014.
4.0 Despite several extensions in mobilisation period for the
Drilling Unit, you have not mobilised & deployed the Drilling Unit
so as to commence the operations till date. Instead of mobilising the
Drilling Unit, you have once again vide your letter dated 23.04.2014
requested for an extension of time till 31.10.2014 for mobilisation of
the Drilling Unit.
5.0 Please note that ONGC will not be able to give you any more
extension for mobilisation of the Drilling Unit. In case you fail to
mobilise & deploy the Drilling Unit so as to commence the
operations by 24:00 hours on 07.05.2014 in terms of Clause 3.0 of
the LOA, the LOA / Contract shall stand terminated with immediate
effect. You shall be liable for all the consequences of such
termination/ breach of the terms and conditions of the LOA /
Contract, including adjustment / recovery of inspection charges
incurred by ONGC from amounts payable to you under any other
contract with ONGC."
It is clear from the above, as has been pointed out by Mr Tushar Mehta, the
learned ASG appearing on behalf of the ONGC, that the petitioner could not
mobilise the drilling unit.
2. Clause 4.1 referred to above, which is the subject matter of challenge, reads
as under:-
"4.1 The bidders should offer drilling rig(s) suitable for drilling
wells for the water depth and environmental criteria mentioned in
the bid document. The bidders, should offer only Serviceable
Drilling Units and idling period of the Drilling Unit should not be
more than 3years on the date of submissions of bids i.e., the drilling
rig should have carried out operations on at least one well during last
3 years on the date of opening of unpriced bids.
The bidders shall submit documentary evidence towards operation
of the drilling unit alongwith unpriced bid. The complete details of
the last operator, the last contract taken up and the period during
which the drilling unit was last in operation shall be indicated.
The bidders shall also furnish certificate from any one of the third
parly inspection agencies like LRDIS, Oil Field Audit Services Inc.,
DNVGL NDA or ABS alongwith the un-priced bid bringing out
clearly the condition and status of the drilling unit and equipments
on board the drilling unit. However, the above mentioned conditions
are not applicable for bidders offering rigs under construction."
(Underlining added)
3. Actually, the challenge to Clause 4.1 is only with regard to the portion after
'i.e'. In other words, there is no challenge to the portion prior to the expression
'i.e'. The portion which has been added in the subject tender which was not there
earlier is only explanatory and clarificatory of the earlier condition that bidders
should offer only Serviceable Drilling Units and idling period of the Drilling Unit
should not be more than three years on the date of submissions of bids. It has
been clarified by the additional portion that the drilling rig should have carried out
operations on at least one well during last 3 years on the date of opening of
unpriced bids. In the present case, the drilling rig / unit of the petitioner was
supposed to be deployed pursuant to the letter of award given earlier by the
respondent. That, as we have seen from the letter dated 07.05.2014 could not be
deployed / mobilized by the petitioner despite repeated opportunities having been
given by the respondent. It is, therefore, clear that the petitioner's drilling unit
remained idle for more than three years prior to the date of submission of the bids.
Even if we do not look at the clarificatory portion of Clause 4.1, the petitioner
would have no case. This is particularly so because the cancellation / termination
letter dated 07.05.2014, placing the blame on the petitioner that it failed to
mobilize the drilling unit in terms of the LOA, has not been challenged by the
petitioner before any forum.
4. The learned counsel for the petitioner seeks to draw our attention to pages
77, 78 and 82 of the paper book to indicate that the drilling unit was ready and that
there was a default on the part of the respondents. Be that as it may, the final seal
to the matter was furnished by the termination letter dated 07.05.2014, to which
there is no challenge.
5. In view of the foregoing, there is no merit in the writ petition. The same is
dismissed.
Dasti.
BADAR DURREZ AHMED, J
JULY 14, 2015 SANJEEV SACHDEVA, J
SR
