Delhi High Court
Kanwar Singh Yadav vs Union Of India & Ors on 30 January, 2018
$~39
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) 722/2018, CM APPL.3075-3076/2018
KANWAR SINGH YADAV ..... Petitioner
Through: Mr. Raman Kapur, Sr. Advocate with
Mr. Joydeep Sarma, Advocate.
versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. Bhagwan Swarup Shukla, CGSC for
Resp-1with Mr. Suraj Kumar and Mr. Kamaldeep,
Advocates along with Mr. Prashant, deptartmental
representative, DFF
Mr. N.K. Agarwal, Advocate for R-2.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE A. K. CHAWLA
ORDER
% 30.01.2018
1. Counter affidavit is taken on record.
2. The petitioner complains that the rejection of its bid (made in
response to the Notice Inviting Tender - NIT - for catering and
canteen services at the Siri Fort Cultural Complex) was arbitrary and
unjustified. The short ground urged is that the rejection of its bid was
on the ground that the experience certificate furnished by it in
response to the NIT merely referred to its past experience in "running
and managing the canteen/cafe" in Jai Prakash Narayan Apex Trauma
Centre, AIIMS, New Delhi w.e.f. 14.07.2014 till date. The firm is
capable of providing canteen services to more than 500-1000 persons
at a time. The eligibility criteria spelt out by the public agency,
Directorate of Film Festival reads as follows: -
"5. Certificate from the office where the canteen & catering
facility is being provided satisfactorily by the tenderer, issued
by an authorized person for the last two of Govt. Semi Govt. or
PSU.
The contractor/Agencies should have at least minimum two
years experience during preceding last four year for running
catering & canteen services of Govt., Semi Government or PSU
for providing services to 500-1000 persons at a time."
3. The petitioner's experience certificate which was part of its bid
issued by the Trauma Centre (of the AIIMS) was dated 07.10.2017.
The respondent/authority - in its counter affidavit - urges that the
rejection was justified having regard to the express terms in the
eligibility condition which required past experience of two years in
catering services as well. It is submitted that the petitioner's effort to
have the corrected certificate brought on record and considered would
not be in order and the respondents cannot be faulted in rejecting the
tender.
4. Counsel for the highest tenderer which has been impleaded as
second respondent i.e. Eswara Kamdhenu Restaurant Pvt. Ltd.
submitted that permitting consideration of the petitioner's bid would
lead to prejudice. It was submitted that even the certificate provided
and sought to be brought on record does not say that the petitioner
had experience in catering services but rather that it merely states that
it is "capable of providing canteen and catering services to more than
1000 persons at a time". It is submitted that if even today, assuming
though not admitting, the revised certificate can be taken on record,
the question of considering the petitioner eligible does not arise.
5. In this case, the petitioner had produced its original certificate
on 07.10.2017. It indicated the petitioner's ability of providing
canteen services to more than 500-1000 persons at a time. The object
of the tender is for the running of the catering and running of canteen
services at Siri Fort Cultural Complex, New Delhi for the audience at
Siri Fort as well as for the office of Directorate of Film Festivals.
6. Broadly, therefore, the tender (dated 18.11.2017) held out the
need for services at fixed places, i.e., Siri Fort Cultural Complex and
the office of Directorate of Film Festival. Given this requirement, the
catering is not the predominant or the primary activity which the
bidders were expected to engage in. Undoubtedly, they are expected
to have that capability. As far as the second respondent's objection
that the certificate does not expressly say that the petitioner had
provided catering facility, this Court is of the opinion that no
conclusion on this ought to be given and the matter should be left to
the first respondent to decide on this aspect. However, the Court is of
the opinion that the omission of the expression "catering" by the
Trauma Centre when it furnished the certificate originally on
07.10.2017 ought not to have been construed in a hyper technical
manner so as to exclude the petitioner's bid. Public interest demands
that the bids should be fairly interpreted and not rejected on narrow
technical considerations - as long as the purpose for which the bid is
issued is fulfilled. Undoubtedly, past experience is an essential
condition. However, the omission of a previous contracting agency to
certify one or other attribute cannot visit any one bidder with the
adverse consequences of its bid's rejection at the threshold as
technically non-complaint.
7. The Court is also of the opinion that though financial bids have
been opened, it would be appropriate that the respondents take
suitable action towards ensuring that in the event the petitioner's
certificate is found to be acceptable, its financial bid is also opened.
A direction to that effect is furnished; the Directorate of Film Festival
shall ensure that the necessary technical assistance is obtained and the
financial bids are appropriately sourced from the server etc. The
process shall be completed within two weeks.
8. The writ petition is partly allowed in the above terms. There
shall be no order as to costs.
S. RAVINDRA BHAT, J
A. K. CHAWLA, J
JANUARY 30, 2018
/vikas/
