Delhi High Court
Jyoti Samajik Sewa Sanstha And ... vs Govt Of Nct Of Delhi And Anr. on 18 July, 2018
$~57
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) No. 7352/2018
Date of decision: 18th July, 2018
JYOTI SAMAJIK SEWA SANSTHA AND ORS. ..... Petitioners
Through: Mr. Tanmaya Mehta & Mr. Vishnu
Prabhakar Singh, Advocates.
versus
GOVT OF NCT OF DELHI AND ANR. ..... Respondents
Through: Mr. Rishikesh Kumar, ASC & Mr. Prem
Sagar Pal, Advocate for GNCTD.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J. (ORAL):
This writ petition impugns terms of "notice inviting tender" vide NIT
No.41/EE,C-7/DUSIB/2018-19 published on 25th June, 2018.
2. Similar issue and contentions were raised and rejected in Writ Petition
(C) No. 5909/2018, Shakti Jan Sudhar Samiti and Others versus Govt. of
NCT of Delhi and Others, wherein the new and amended eligibility criteria
fixed vide NIT dated 14th /15th May, 2018, viz., the earlier NITs was
challenged. After detailed and elaborate consideration, the writ petition was
dismissed primarily recording the following reasons:-
"7. It is evident from the above discussion that the
challenge in this petition is with respect to the
conditions in the NIT. Undoubtedly, the NIT has
increased the financial threshold with respect to
WP(C) No. 7352/2018 Page 1 of 5
the eligibility (the minimum turnover prescribed
is equivalent to 200% of the estimated cost).
Likewise, with respect to similar works, a
percentage of the works, advertised has been
prescribed both in terms of 3 years, 2 years or the
past year. Per se this cannot be considered as
arbitrary or discriminatory since it is settled law
that the drafting of tender conditions cannot be
ordinarily judicially reviewable unless it is
patently unreasonable or arbitrary. The reason
given by DUSIB for increasing the threshold, in
the present case, is the radical change it has
proposed vis-a-vis the cleaning of toilets being a
public facility. Apart from the fact that the
number of facilities and seats have been
increased, the DUSIB has also directed use of
mechanized technology for cleaning purposes.
Furthermore, it has for the first time prescribed a
standard with respect to the number of personnel
who have to be employed by the contractor.
Given all these comparables, the prescription of a
high financial threshold or an equally
commensurate similar work (in terms of average
turnover) in the opinion of the Court is not in any
manner unfair. As far as the objection with
respect to non-compliance with CVC guidelines
goes, the Court is of the opinion that the manual
itself indicates that the CVC meant an illustrative
guideline and not conclusive or determinative in
all aspects. In the present case, the procurement is
for services which are not of a commercial
character but rather, for the welfare of the people
of Delhi. Given these facts, the drafting of
eligibility conditions which may tend to minimise
the petitioner's chances to bid successfully,
cannot automatically result in arbitrariness.
3. The aforesaid reasoning will be equally applicable to the assertions
and contentions raised by the petitioners.
WP(C) No. 7352/2018 Page 2 of 5
4. The first contention raised by the petitioners is that the experience
requirement, i.e., the bidders should have completed three similar works
each costing not less than 40% of the estimated cost put to tender or two
similar works each not costing less than 60% of the estimated cost put to
tender or one similar work of aggregate cost not less than the amount equal
to 80% of the estimated cost put to tender, is onerous and would favour only
big players and would exclude non-governmental organizations like the
petitioners. The aforesaid conditions refer to the requirement that the bidder
should satisfy one of the three criteria of having successfully completed the
work(s) during last seven years. Estimated cost of work in the NIT is
Rs.15.11 crores. We do not think that the aforesaid criteria and given the
length or time of seven years can be treated as parlously unreasonable,
preposterous or arbitrary so as to attract correction by judicial review on the
ground that it violates Article 14 of the Constitution. Similar clause, if not
more stringent in the NIT dated 14th /15th May, 2018 as recorded in
paragraph 2 of the judgment in Shakti Jan Sudhar Samiti and Others
(supra) was upheld. Eligibility conditions being similar, the challenge
should be rejected following the ratio in Shakti Jan Sudhar Samiti and
Others (supra).
5. The second contention is that though the NIT in question permits
aggregation and consortium to submit bids, it unreasonably stipulates that
number of consortium members shall not exceed three. We do not
perceive and believe that the aforesaid term by any stretch is patently
unreasonable and arbitrary so as to violate and fringe Article 14. Three is a
reasonable number. Larger aggregations may have their own issues and
problems, which can be foreseen. In any case, aggregation and consortium
number(s) would fall squarely within the realm of policy. Reference was
WP(C) No. 7352/2018 Page 3 of 5
made by the petitioners to paragraph 5 of the decision in Shakti Jan Sudhar
Samiti and Others (supra), wherein it is recorded that experience of the lead
partner/participant would be taken into account for the purpose of
determining financial turnover as well as execution of similar works and
consortium members could be one or more. We do not think the terms and
conditions of the NIT restricting the consortium members to three would
violate the judgment or the reasoning given in Shakti Jan Sudhar Samiti
and Others (supra). NIT under challenge permits counting of experience of
all consortium members, subject to fulfillment of certain conditions.
6. The third contention raised by the petitioners is that the NIT is for
57480 WCs. Estimate of cost of the work is Rs.15.11 cores. Cost per WC
would be about Rs.2,600/- per month. NIT states that Goods and Service
Tax would be reimbursable. Our attention was drawn to letter dated 28th
February, 2018 by which competent authority had accepted the
quotation/negotiated rate of Rs. 1299/- per WC per month.
7. The aforesaid contention overlooks the fact that the estimated cost is a
tentative cost. Bidders would have to give bids lower than the said amount.
Person giving the lowest bid would be entitled to award of work.
Obviously, respondents have the facts and figures with regard to cost and the
lowest bids in earlier NITs. They would keep all aspects including earlier
bid in mind while accepting and awarding tender. As per the NIT, tenders
were to be opened on 10th July, 2018. Present writ petition was filed on 13th
July, 2018.
WP(C) No. 7352/2018 Page 4 of 5
8. Recording the aforesaid, we dismiss the present writ petition, without
any order as to costs.
SANJIV KHANNA, J.
CHANDER SHEKHAR, J.
JULY 18, 2018
VKR/MR
