Delhi High Court
Indian Railways Onboard Catering ... vs Union Of India And Anr. on 16 September, 2019
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 16.09.2019
+ W.P.(C) 9309/2019 & CM APPL. No. 38399/2019
INDIAN RAILWAYS ONBOARD CATERING CONTRACTORS
ASSOCIATION ..... Petitioner
Through: Mr. Ninad Laud, Adv.
versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Mr. Jagjit Singh & Mr. Preet Singh,
Advs. for Railways.
Mr. Nikhil Majithia, Adv. for IRCTC.
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
JUDGMENT
G.S.SISTANI, J. (ORAL)
A notice inviting E-Tender issued by respondent No. 1 herein has
been impugned by the petitioner primarily on two grounds that :
(i) The same is contrary to the General Conditions of Contract (GCC)
for Services issued by the Ministry of Railways requiring a turnover of not
less than 1.5 times the advertised Bid Value during the last three previous
financial years whereas the impugned document requires a minimum
average turnover of Rs.10 crores in the last five years.
(ii) The Standard Bid Document (SBD) issued by the Ministry of
Railways allows a consortium/JV to bid whereas the impugned document
does not allow for the same.
2. At the outset, it is noted that the petitioner has not participated in the
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bid. It is claimed that the petitioner made a representation to respondent
No.2 on 09.08.2019 but no reply has been received in response to the same.
A preliminary objection has been raised by counsel for the respondent with
regard to the maintainability of this writ petition submitting that since the
petitioner has not even participated in the bid it has no locus to challenge the
same.
3. At present, it is not necessary to go into the issue of locus standi of
the petitioner since, with the consent of the parties, we are deciding the writ
petition at the admission stage itself without adverting to the question of
maintainability.
4. Both the issues which have been raised by the petitioner have been
answered by counsel for the respondents in the form of an affidavit filed by
respondent No. 2 and the statement made in court to the effect that the
General Conditions of Contract for Services do not apply to 'catering
tenders' and also that tenders pertaining to catering are governed by the
Catering Policy, copy whereof has been placed on record alongwith the
affidavit. A similar stand is taken by respondent No. 1. Additionally, Mr.
Jagjit Singh, learned Senior Standing Counsel for the Railways submits that
where the contract is to be governed by the General Conditions of Contract,
a specific stipulation is made therein ; however no such stipulation has been
made in the current tender.
5. Although the petitioner did not participate in the pre-bid meeting, it is
contended by Mr. Ninad Laud, learned counsel appearing for the petitioner
that the said E-tender is contrary to the SBD for Rajdhani or Shatabdi trains
issued by the Ministry of Railways. The SBD comprises the eligibility and
evaluation criteria of bidders and is contrary to the E-tender inasmuch as,
WP(C) 9309/2019 page 2 of 5
according to the SBD, the bidder could either be an individual or a company
registered under the Companies Act, 1956 or a partnership firm registered
under the Partnership Act, 1932 or a group of entities i.e. consortium
coming together to render desired services in relation to the license as per
the GCC. However, vide the impugned E-tender, respondent No. 2/IRCTC
has excluded consortium/joint venture entities from participating in the
tender and hence, the petitioner contends, the impugned tender is in
violation of the GCCs.
6. Mr. Majithia, learned counsel for respondent No. 2, who appears on
advance copy submits that the present writ petition is misconceived and is a
gross abuse of the process of the court and that the petitioner has not even
participated in the pre-bid meeting. In support of his submissions, reliance
has been placed on paras 2.2, 2.2.1 and 2.2.1.1 of the GCC which are
reproduced as under :
"2.2 Qualification Criteria
2.2.1 Eligible Applicant
2.2.1.1 The Bids for this contract will be considered only
from those Bidders [proprietorship firms, partnership firms,
companies, corporations, consortia or joint ventures (JV
hereinafter) etc.] who meet requisite eligibility criteria. In
the case of a JV or Consortium, all members of the Group
shall be jointly and severally liable for the performance of
whole contract."
This court has also had the occasion of deciding the matter of a
tenderer for a catering contract of the Railways, on a similar set of facts, to
which the same GCCs apply, in which case our attention was also drawn to
para 17.5 of the Bid Form (Second Sheet) annexed to the GCC which,
WP(C) 9309/2019 page 3 of 5
though not filed on record in the present proceedings, is extremely material
and germane to the matter at hand. Para 17.5 aforesaid reads as under:
"17.5 A Bid from JV/Consortium/Partnership Firm etc. shall
be considered only where permissible as per the Bid/ Tender
conditions"
7. It is further submitted that a composite reading of the above makes it
abundantly clear that a bid from a joint venture/consortium/partnership firm
etc. is to be considered only where permissible as per the bid/tender
conditions ; and in the impugned tender respondent No. 2 has excluded such
entities from participating. In view thereof, the submission made by counsel
for the petitioner is without any merit.
8. Additionally, counsel for respondent No.2 submits that the GCCs are
not applicable to the present tender for the reason that tenders for catering
services in trains are governed by the Catering Policy of the Railways,
issued by the Ministry of Railways from time-to-time.
9. As far as objection with regard to absence of advertised bid-value is
concerned, counsel for the respondents submits that Clause (9) of Annexure
'D' of the tender documents reflects that the minimum guaranteed
Concession Fee per annum per train (excluding taxes) has to be Rs.2 crores
and any offer less than the amount of Rs.2 crores shall be rejected ; which
therefore sets-down the advertised bid-value for purposes of testing the
bidder's turnover.
10. We have heard learned counsel for the parties.
11. Having regard to condition No. 17.5 aforementioned, in our view, the
submission of learned counsel for the petitioner with regard to the impugned
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E-tender is mis-conceived inasmuch as condition No. 17.5 does specifically
lay-down that a bid by a joint venture/ consortium/partnership firm etc. shall
be considered only where permissible as per the bid/tender conditions ; and
on perusal of the tender conditions shows that in this case participation by
such entities has not been made permissible under the tender conditions.
This argument made on behalf of the petitioner is therefore without any
force and is liable to be rejected.
12. The second ground raised is also without any merit in view of Clause
(9) of the tender documents as discussed above and which in our view,
would squarely answer the required turnover of the bidder.
13. The above discussion notwithstanding, additionally, we take on
record the submission of counsel for the respondent that the GCCs would in
any case not apply to any 'catering' tenders ; and we accept that statement to
the extent that it would be applied uniformly to all catering contracts and the
respondents would not take a different view in other matters. We see no
reason to disbelieve the statement made by counsel for the respondent on
this aspect, recording further that this statement is made on instructions.
14. For the aforesaid reasons, we find no merit in the writ petition. The
writ petition and applications are accordingly dismissed.
G.S.SISTANI, J.
ANUP JAIRAM BHAMBHANI, J.
SEPTEMBER 16, 2019/uj
WP(C) 9309/2019 page 5 of 5
