Delhi High Court
Altius Sports & Leisure Pvt Ltd & ... vs Npcc Limited on 29 January, 2021
$~6.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 29.01.2021
% W.P.(C) 5716/2020
ALTIUS SPORTS & LEISURE PVT LTD & ANR...... Petitioners
Through: Mr. Vineet Malhotra, Advocate.
versus
NPCC LIMITED ..... Respondent
Through: Mr. Paritosh Budhiraja, Advocate.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MS. JUSTICE REKHA PALLI
VIPIN SANGHI, J. (ORAL)
CM APPL. 27101/2020
1. For the reasons stated in the application, the same is allowed. The
counter-affidavit is taken on record.
2. The application stands disposed of.
W.P.(C) 5716/2020 and CM APPL. 20665/2020
3. We have heard Mr. Malhotra, learned counsel for the petitioners and
Mr. Budhiraja, learned counsel for the respondent/ NPCC Limited.
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:01.02.2021 20:23
4. The petitioners have preferred the present writ petition to seek
quashing of Corrigendum No.2 bearing Reference No. NPCC/NZO-YSS-
AIBS/20-21/Corr-2 dated 24.08.2020, to the tender issued on 11.08.2020 for
lying of Synthetic Turf and Athletic Track in Srinagar, J&K. This
corrigendum, the petitioners claim, has been wrongly, illegally, malafidely
and fraudulently issued by the respondent.
5. The petitioners state that they are engaged in the business of
providing sports infrastructure and primarily in supplying and installing
artificial turf and synthetic athletic tracks. It is claimed that since the year
2010, the petitioners have installed more than 10 Lakhs sq.ft. artificial sports
flooring in India and SAARC Region. They claim to have installed various
FIH certified Hockey Fields, IAAF certified Synthetic Running Tracks,
FIFA certified Football Fields, Hockey Fields, etc. for private companies
and also for Government organizations such as PWD, CPWD, various State
Governments, such as Government of State of Punjab, State of Kerala, State
of Jharkhand and other States. In para 5 of the petition, the petitioners have
enlisted some of the installations made by them.
6. On 11.08.2020, the respondent/ NPCC issued a Notice Inviting
Tender (NIT) for Laying of Synthetic Turf and Athletic Track as per the
International Association of Athletics Federation (IAAF) and Federation
International de Football Association (FIFA) Standards at Bakshi Stadium,
Srinagar (J&K). The bids were required to be submitted by 5.00 pm on
17.08.2020. It is the petitioners‟ case that they submitted their bid in
response to the said tender at about 04:30 p.m on 17.08.2020, i.e. before the
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:01.02.2021 20:23
close of the time for submission of the bid. However, the respondent on the
same date, i.e., 17.08.2020, issued a corrigendum being Corrigendum No.1
extending the last date for submission of tender to 24.08.2020.
7. The petitioners further state that after the issuance of the NIT, some of
the bidders had made suggestions with regard to the terms & conditions of
the tender and had raised queries, including a query in relation to the
definition of the term „similar works‟. We may note that the definition of
„similar works‟ has relevance to the past experience of the bidder, and we
shall be referring to it a little later.
8. The petitioners state that the respondent - after considering the
queries and suggestions, on 21.08.2020 refused to change the definition of
the expression „similar works‟ as stipulated in the tender. However, on
24.08.2020, the respondent suddenly issued fresh Corrigendum No.2 -
which is impugned before us, wherein the definition of the expression
„similar works‟ was changed by the respondent. It is the petitioners‟ case
that this change was deliberately effected with a view to oust the petitioners
and limit the competition between a favoured few. Consequently, the
petitioners have assailed the said Corrigendum No.2 before us.
9. The NIT, as initially issued, set down the pre-qualification criteria,
wherein the experience criteria was prescribed as follows:
"2. Experience: Bidder should have the experience of
completion of similar works during last 7 years ending
last day of month previous to the one in which tenders
are invited should be either of the following:
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By:BHUPINDER SINGH
ROHELLA
Signing Date:01.02.2021 20:23
(a) Three similar completed works each costing not less
than the amount equal to 40% of the estimated cost,
Certificate should be attached.
Or
(b) Two similar completed works each costing not less
than the amount equal to 60% of the estimated cost,
Certificate should be attached.
Or
( c) One similar completed work costing not less than the
amount equal to 80% of the estimated cost. Certificate
should be attached."
10. The expression „similar works‟ used in the experience criteria was
then defined as follows:
"3. Similar works mean: I) "Similar work" refers to a work
Involving laying of IAAF class-II certified synthetic
Athletic Track and FIFA approved Synthetic Football
Turf as per International Standards and its allied civil
works.
Or
ii) Completion Certificate of any International Standard
Ground."
11. Vide Corrigendum No.2 issued on 24.08.2020, the expression „similar
works‟ was re-defined to read as under:
"Similar works mean: "Similar work" refers to a work
involving Laying of IAAF class -II certified synthetic Athletic
Track and FIFA approved Synthetic Football Turf as per
international standards and its allied civil works in India from
Central / State Govt. Departments / Central PSUs/ State PSU/
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Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:01.02.2021 20:23
Central Autonomous bodies/ State Autonomous bodies/ City
Development Authority/ Municipal Corporation of City formed
under any act by Central/State Government and published in
Central/State Gazette/ Public Limited Companies Listed in
Stock Exchange duly supported with TDS Certificate in
evidence of the value of work. Submission of documentary
Evidence of Public Limited Company Listed in Stock Exchange
is the responsibility of bidder. The value of executed works
shall be brought to current costing level by enhancing the
actual value of work at simple rote of 5% per annum,
calculated from the date of completion to last date of receipt of
applications for tenders. Certificate should be attached from
Officer not less than the Rank of Executive Engineer.
and
ii) Completion certificate of any International standard ground
In India."
12. The last date of submission was also extended to 27.08.2020.
13. The case of the petitioners is that though they were earlier qualified to
bid for the tender inasmuch, as, they were meeting the alternative criteria as
per the definition of „similar works‟ - in that they had a completion
certificate of any „international standard ground‟, however, after the
amendment vide Corrigendum No.2, the bidders were required to satisfy
both the criteria set-out in the definition of „similar works‟, and as the
petitioners did not meet the first criteria, they have been ousted.
14. Mr. Malhotra states that there was no justification for the respondent
to change the definition of the expression „similar works‟, particularly when
the respondent had itself considered the queries and suggestions of the
prospective bidders and had taken a decision to reject the plea of the
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Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:01.02.2021 20:23
prospective bidders to amend the definition of the expression „similar
works‟. In this regard, he has drawn our attention to the „Reply to pre-bid
queries‟ issued by the respondent and, in particular, to query at serial No.12,
which reads as follows:
"12 Similar "Similar work" Construction of The bid
Works refers to a work IAAF Class-II provisions
Mean involving laying Certified shall
of IAAF Class- Synthetic prevail.
II certified Athletic Track
synthetic and FIFA
Athletic Track approved
and FIFA Synthetic
approved Football Field
Synthetic is a different
Football Turf as than the
per construction of
International any
Standards and International
its allied civil Standard
works. Ground work.
Sir,
Or construction of
IAAF Class-II
ii) Completion
Certified
Certificate of
Synthetic
any
Athletic Track
International
and FIFA
Standard
approved
Ground.
Synthetic
Football Field
is highly
specialized and
technical work
and cannot
compare with
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Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:01.02.2021 20:23
any other
International
ground work i.e.
Tennis, Hockey,
Rugby Squash
Court, Cricket
ground etc. The
bidders who do
not have any
similar kind of
work experience
cannot
construct
International
Standard
synthetic track
and football
ground without
any past
experience and
specialized
equipments.
Hence we
request you to
kindly allow
only those
bidders who
have executed
FIFA Certified
Football and
IAAF Certified
Synthetic track
Field work for
this tender and
remove the para
i.e.
"Completion
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By:BHUPINDER SINGH
ROHELLA
Signing Date:01.02.2021 20:23
Certificate of
any
International
Standard
Ground" from
this tender."
15. The petition is opposed by the respondent by filing a detailed counter
affidavit wherein it has been urged that till the initial date of submission of
the tender, i.e., 17.08.2020 up to 05:00 p.m., only a single bid had been
received - presumably of the petitioners. Due to this reason, the last date for
submission was extended to 24.08.2020. At that stage, the respondent also
realized that neither did the definition of the expression „similar works‟
adhere to the standard conditions which the respondent Corporation had laid
down in its earlier tenders, nor had it require the bidders to mention the
name of the issuing authority of the experience certificate. In this regard, the
averments made by the respondent in paragraphs 3 and 4 of its counter-
affidavit are relevant, and the same read as follows:
"3. That as already submitted above, initially, the last date of
submission of the tender was 17.082020 upto 17:00 hrs.
However till that date i.e. 17.08.2020 only single bid was
received. Due to the said reason the last date of submission
was extended upto 24.08.2020 at 17:00 hrs. Thereafter, it was
observed that the meaning of 'similar works' mentioned in the
NIT was not as per the standard conditions which the
Respondent Corporation has been earlier stipulating in other
tenders and also the experience certificate issuing authority
was also not specified therein. It is submitted that as per the
initial criteria the prospect bidders were not compulsorily
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:01.02.2021 20:23
required to submit any proof/completion certificate of having
successfully executed and completed any such similar work of
the prescribed international standards. It is submitted that the
said pre-revised meaning of 'similar works' was vague and
ambiguous and was thus capable of misrepresentation at the
end of the prospective bidders and could have led to a
situation where it could have possibly incapacitated the
Respondent Corporation to verify the authenticity of actual
execution of a similar work. Since the project in question is
highly specialized in nature and particularly when the same
has to be executed in peculiar conditions and circumstances
prevailing in India, therefore it was deemed appropriate that
the proposed bidders should have actually executed similar
work in India and accordingly by way of the amendment it
has been made compulsory for the proposed bidders to provide
completion certificate of having executed similar work in
India so that in case of need, the Respondent Corporation is
able to verify and confirm that the tenderer has actually
executed similar work.
It is in these circumstances it was considered it to be imperative
to make it a precondition for the proposed bidders that such
similar work of the prescribed standards should have been
successfully completed by them in India.
Accordingly, the meaning of „similar works‟ was revised vide
corrigendum bearing reference No. NPCC/NZO-YSS-ATBS/20-
21/Corr-2 dt. 24.08.2020 and last date for submission of the
tender was extended upto 27.08.2020. The comparative of the
Pre and Post revised meaning of „Similar Works‟ is given
hereunder for ready reference of this Hon‟ble Court:
Pre-Revised Post-Revised
Similar works mean: Similar works mean:
i) "Similar work" refers to a "Similar work" refers to a
work involving Laying of work involving Laying of
IAAF class-II certified IAAF class-II certified
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Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:01.02.2021 20:23
synthetic Athletic Track and synthetic Athletic Track and
FIFA approved Synthetic FIFA approved Synthetic
Football Turf as per Football Turf as per
International standards and International standards and
its allied civil works. its allied civil works in India
from Central / State Govt.
Or Departments / Central PSUs/
State PSU/ Central
ii) Completion Certificate of
Autonomous bodies/ State
any International standard
Autonomous bodies/ City
ground.
Development Authority/
Municipal Corporation of
City formed under any act by
Central/State Government
and published in
Central/State Gazette/ Public
Limited Companies Listed in
Stock Exchange duly
supported with TDS
Certificate in evidence of the
value of work. Submission of
documentary Evidence of
Public Limited Company
Listed in Stock Exchange is
the responsibility of bidder.
The value of executed works
shall be brought to current
costing level by enhancing
the actual value of work at
simple rate of 5% per annum,
calculated from the date of
completion to last date of
receipt of applications for
tenders. Certificate should be
attached from Officer not less
than the Rank of Executive
Engineer.
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:01.02.2021 20:23
And
ii) Completion certificate of
any International standard
ground in India.
4. That it is submitted that the Respondent Corporation as a
matter of standard practice has been laying similar pre-
qualification criteria while issuing other tenders."
16. In support of its plea that the respondent had been incorporating
comparable/ similar definition of the expression „similar works‟ in its other
construction contracts, the respondent has placed on record two of their
previous NITs. The first such NIT is dated 24.06.2017, which invited bids
for "Integrated Development of Tourist Facilities at Mantalai in the State of
J&K" under Swadesh Darshan Scheme, wherein the expression „similar
works‟ was defined in the following manner:
"Similar works mean: Building works consisting of Tourism
Projects/ Residential buildings/ Institutional Buildings/Office
Buildings/ Industrial Buildings. Contractor should have
experience in Design Concept Basis or ongoing any work on
Design Concept basis of the estimated value of work with any
Govt. Dept./ PSU‟s/Autonomous bodies/City development
authorities/Municipal corporation of city and Pvt Companies
duly supported with TDS certificate in evidence of the value of
work done. Submission of documents evidence is the
responsibility of the bidder. Completion / experience certificate
needs to be enclosed."
17. The second NIT that the respondent has placed on record had been
floated for construction of Industrial Biotech Park (IBP) for Council of
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Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:01.02.2021 20:23
Scientific and Industrial Research - Indian Institute of Integrative Medicine
(CSIR-IIIM) at Handwara, Kupwara, Kashmir, J&K. In this tender as well,
the term „similar works‟ has been defined in the following manner:
"3. Similar works mean: Civil work comprising of RCC frame
structures G+2 level Residential buildings/Institutional
Buildings/Industrial Buildings including services like
Electrification, sanitary & Water Supply, Drainage, Road
works, Fire fighting, HVAC & Site development etc. from
Central / State Govt. Departments / Central PSUs/ State PSU/
Central Autonomous bodies/ State Autonomous bodies/ City
Development Authority/Municipal Corporation of City formed
under any act by Central/State Government and published in
Central/State Gazette/ Public Limited Companies Listed in
Stock Exchange duly supported with TDS Certificate in
evidence of the value of work. Submission of documentary
Evidence of Public Limited Company Listed in Stock Exchange
is the responsibility of bidder. The value of executed works
shall be brought to current costing level by enhancing the
actual value of work at simple rate of 7% per annum,
calculated from the date of completion to last date of receipt of
applications for tenders. Certificate should be attached."
18. Mr. Budhiraja contends that the petitioners‟ submission that the
change in the definition of the expression „similar works‟ was effected to
oust them and favour other contracters, has no merit. He submits that
Corrigendum No.2 was issued by the respondent even before opening the
petitioners‟ Technical Bid. The respondent was, therefore, not aware at that
stage whether the petitioners would meet the requirements of the amended
definition of the expression „similar works‟, or not. He therefore contends
that there is no basis for the petitioners to claim that Corrigendum 2 was
issued, and the definition of „similar works‟ was amended, solely with the
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By:BHUPINDER SINGH
ROHELLA
Signing Date:01.02.2021 20:23
view to oust the petitioners and to limit the competition within other bidders
who submitted their bids after the date was extended from 17.08.2020 to
24.08.2020, and thereafter to 27.08.2020.
19. Mr. Malhotra in his rejoinder submits that since this is the first time
that the respondent has invited the tender for lying of the synthetic turf and
athletic track, it is evident that the nature of the work under the tender in
question is completely different from the aforesaid two NITs. He therefore
states that there was no justification for the respondent to lift the definition
of „similar works‟ from the earlier tenders, which pertained to works of an
entirely different nature, and incorporate it in the tender in question.
20. Having heard learned counsels on both sides and perused the record,
we are unable to find any merit in the present petition.
21. It is trite law that till a tender is opened and accepted, it is always
open to the party inviting tenders to cancel the same, since the NIT is only
an invitation to offer and nothing more. The petitioners cannot have a
grievance with regard to either the extension of the last date for submission
of the bids, or for amendment of the tender conditions as it is entirely the
prerogative of the authority inviting the bids to determine as to what terms &
conditions ought to be laid down. No doubt, no public authority can act
arbitrarily or whimsically, and there should be a reasonable basis for its
actions. However, once the authority is able to demonstrate a reasonable
basis for its actions, it is not for the Court in exercise of its discretionary
jurisdiction under Article 226 of the Constitution of India, to delve into the
issue as to what should be the eligibility criteria laid down in the tender/
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By:BHUPINDER SINGH
ROHELLA
Signing Date:01.02.2021 20:23
NIT, or to direct that the same should be stipulated in a particular manner.
22. A perusal of the counter-affidavit as well as the two earlier tenders
placed on record shows that there is a basis for the respondent to define the
expression „similar works‟ in the manner as sought to be done by bringing
about the amendment vide Corrigendum No.2. We also find merit in the
submission of Mr. Budhiraja, that since the petitioners‟ Technical Bid had
not been opened when the corrigendum was issued, there was no way for the
respondent to know, or imagine, that the petitioners would not meet the
amended definition of „similar works‟. The respondent having realized that
the expression „similar works‟ had not been defined in an appropriate
manner in the initial NIT, which definition left several aspects unanswered,
in our view, they were completely justified in amending the said definition
in the manner they saw fit. In fact, since the tender in question is for
construction of IAAF Class II Synthetic Turf and Athletic Track, the
amendment introduced by the impugned corrigendum reinforces the
requirement of past experience in carrying out similar works. In any event, it
is not as if the amended definition is such that no bidder is capable of
meeting it as, even according to the petitioners, there are four bidders who
meet this definition, as amended. Merely because the petitioners are unable
to meet the criteria stipulated in the amended definition, is not a ground for
us to quash the Corrigendum No.2, vide which the amendment was brought
in.
23. For the aforesaid reasons, we find no merit in this petition, which is
accordingly dismissed, leaving the parties to bear their respective costs.
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:01.02.2021 20:23
24. The interim orders stand vacated. It will be open to the respondent to
proceed with the tender process in question.
VIPIN SANGHI, J
REKHA PALLI, J
JANUARY 29, 2021
B.S. Rohella
Signature Not Verified
Digitally Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:01.02.2021 20:23
