M/S Keepwell Security Services vs Department Of Women And Child ...
2022 Latest Caselaw 1033 Del

                  $~6
                  *        IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                     Date of Decision: 12.04.2022
                  +        W.P.(C) 1348/2022 & CM APPL. 3904/2022
                           M/S KEEPWELL SECURITY SERVICES              ..... Petitioner
                                            Through: Mr. Rajeev Saxena, Mr. Sumit
                                                     K. Batra, Mr. Shrey Chathly,
                                                     Mr. Manish Khurana and Mr.
                                                     Kshitij Chhabra, Adv.

                                        versus
                           DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT
                           CARETAKING BRANCH & ANR.
                                                                ..... Respondent

Through: Mr. Ramesh Singh, Sr. Adv.

with Mr. Anuj Aggarwal, ASC with Mr. Sanyam Suri and Ms. Ayushi Bansal, Advs. for R-

1/GNCTD.

Mr. Shailendra Sharma, Adv.

for R-2.

CORAM:

HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE NAVIN CHAWLA VIPIN SANGHI, ACJ (ORAL)

1. The present petition has been filed by the petitioner praying that the bid document bearing No. GEM/2021/B/1253716 dated 25.06.2021 be declared as null and void as having expired by efflux of time, on the ground that the maximum prescribed period of the bid document, including the period by which it could be extended, has expired on 22.12.2021. The petitioner further challenges the declaration of Competent Services; MS Support Services Pvt. Ltd.; and JMD Services Pvt. Ltd. as having qualified in the tender, on the

Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:13.04.2022

ground that they were declared qualified only after the expiry of the validity period of the bid document and were selectively chosen to rectify the deficiencies in their bid.

2. The respondent no. 1 had floated the abovementioned tender dated 25.06.2021 for hiring of sanitation services. The bid document provided the "Bid End Date/Time" as "12.07.2021 20:00:00". It further provided the "Bid Life Cycle (From Publish Date)" as "90 days", and "Bid Offer Validity (From End Date)" as "30 days". The learned counsel for the petitioner, placing reliance on "Manual for Procurement of Works 2019" published by the Government of India, Ministry of Finance, Department of Expenditure, contends that in terms of the said Manual, the Bid Life Cycle is the period within which a buyer has to complete the entire life cycle, that is, technical evaluation, financial evaluation and order creation under the Bid process. He submits that in the present case, the Bid Life Cycle, as noted hereinabove, was 90 days. He further submits that in terms of the Manual referred hereinabove, the maximum period for the Bid Life Cycle is 180 days and, that too, only in exceptional cases. He submits that in the present case, the 180 days period from the date of the bid document had already expired and therefore, the tender should have been considered as closed, and no longer valid.

3. The learned counsel for the petitioner further submits that the respondent no. 1 selectively invited only five bidders, whose bid had not been found responsive, to submit further documents and clarification, and thereafter, declared three of them as technically responsive to participate further in the bid. He submits that such

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selective method is totally arbitrary, thereby rendering the entire bid process illegal. He submits that the petitioner had, on coming to know of the above illegality, made a detailed representation dated 11.01.2022 claiming that similar benefit be granted to the petitioner, however, there was no response from the respondent no. 1.

4. On the other hand, the learned senior counsel for the respondent no. 1 submits that in terms of the bid document, the life cycle extension could be upto 730 days after obtaining approval from the Competent Authority. He submits the validity of the Bid was, therefore, validly extended after obtaining approval of the Competent Authority.

5. He further submits that the result of the technical evaluation was declared by the respondent no. 1 on 24.12.2021. In terms of the bid document itself, 7 days' time was granted to each bidder for submitting representation/clarification, if any. While representation/clarification was received from five bidders, out of which, for three the same were accepted and they were later declared eligible; the representation from the petitioner was received only after the expiry of 7 days. He further submits that even otherwise, the petitioner has no locus to challenge the process inasmuch, as, on the face of the record, the petitioner was not even eligible to participate in the bid. He submits that the bid document required three years past experience. As noted, the bid was floated on 25.06.2021. The petitioner was registered as a partnership firm only on 20.12.2020. Therefore, the petitioner did not have the requisite experience to participate in the bid.

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6. He submits that, in fact, the present petition is motivated inasmuch, as, the same is supported by the affidavit of Mr. Prayag Vats, who claims himself to be a Partner/authorised representative of the petitioner. Mr.Prayag Vats has also been claimed by M/s Eagle Eye Security & Housekeeping Service, the existing contractor as also the successful bidder in the bid process, as its "GEM Operator". M/s Eagle Eye Security & Housekeeping Service presently provides sanitation services to the respondent no. 1 at the rate of Rs. 65 lakh approximately per month, while in the new tender it has quoted the rate of Rs. 37-38 lakh (inclusive of GST) and has been found to be the L1 bidder. By obtaining an order of stay restraining the respondent no. 1 from issuing the tender to M/s Eagle Eye Security & Housekeeping Service, M/s Eagle Eye Security & Housekeeping Service, therefore, has been able to make unjustified gains during the period of stay granted by this Court vide its order dated 21.01.2022. He submits that the present petition has therefore, been filed with mala fide intent.

7. The learned counsel for the petitioner denies involvement of Mr.Prayag Vats with M/s Eagle Eye Security & Housekeeping Service. On the lack of experience and therefore, lack of locus, he submits that in case the Bid was cancelled, the petitioner could have participated in the new Bid and therefore, has been prejudiced by the non-cancellation of the Bid in question.

8. We have considered the submissions made by the learned counsels for the parties. Admittedly, the bid document required the bidder to have three years experience of similar services, with the bidder having successfully executed/completed at least one single

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order of 80% of the Estimated Bid Value, or 2 orders each of 50% of the Estimated Bid Value, or 3 order each of 40% of the Estimated Bid Value for similar services in last three years to any Central/State Government Organization/PSU/Public Listed Company. It is not denied by the petitioner that it came into existence only on 20.12.2020, the date of its registration. It, therefore, did not have the requisite three years experience to participate in the bid. In this view, its locus to challenge the bid process itself is doubtful, and cannot be accepted. It is clearly playing the role of a spoiler in the bid process.

9. As far as the submission of the learned counsels for the petitioner that the bid validity had ended, as pointed out by the learned senior counsel for the respondent no. 1, as well as by Government e- Market Place (GEM)/respondent no. 2 in its counter affidavit, the respondent no. 1 had an option to extend the validity of the bid up to 730 days, which it validly exercised. We therefore, find no merit in the challenge of the petitioner on this score.

10. Equally, the submission of the petitioner that five bidders were granted some arbitrary benefits, also cannot be accepted. The bid document itself stated that 7 day period was allowed for technical clarification during technical evaluation. The respondent no. 1 has asserted that it had received representations from five bidders within the 7 day period, out of which three were found justified, and therefore, were declared technically qualified. In any case, the same loses all significance as M/s Eagle Eye Security & Housekeeping Service was found to be L1 in the final bid, and it had earlier also been declared qualified and did not receive any benefit of time extension

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from the respondent no. 1. The said objection of the petitioner, therefore, is only academic in nature.

11. As far as the submission of Mr. Singh, the learned senior counsel for respondent no. 1, regarding the present petition being filed mala fide and with an intention to benefit M/s Eagle Eye Security & Housekeeping Service, we have taken cognizance of the said submission and passed a separate order thereon.

12. In view of the above, we find no merit in the present petition. The same is dismissed with costs.

VIPIN SANGHI, ACJ

NAVIN CHAWLA, J APRIL 12, 2022/rv/U.

Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:13.04.2022