Delhi High Court
Meritech Software Pvt. Ltd. vs Bharat Sanchar Nigam Ltd. on 28 March, 2024
Author: Manmeet Pritam Singh Arora
Bench: Manmeet Pritam Singh Arora
$~62
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4568/2024 & CM APPLs. 18725/2024, 18727/2024
MERITECH SOFTWARE PVT. LTD. ..... Petitioner
Through: Ms. Malvika Trivedi, Sr. Advocate
with Mr. Nishant Rao, Mr.
Abhimanyu Garg, Ms. Preety Makkar
and Mr. Abhinav Garg, Advocates
versus
BHARAT SANCHAR NIGAM LTD. ..... Respondent
Through: Mr. Dinesh Agnani, Sr. Advocate
with Ms. Leena Tuteja (Through VC)
with Ms. Ishita Kadyan, Advocates
for BSNL
% Date of Decision: 28th March, 2024
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
JUDGMENT
MANMOHAN, ACJ : (ORAL)
CM APPL. 18726/2024 (for exemption)
Allowed, subject to all just exceptions.
Accordingly, the present application stands disposed of.
W.P.(C) 4568/2024 & CM APPLs. 18725/2024, 18727/2024
1. Present writ petition has been filed challenging the
letter/communication dated 19th March, 2024 whereby the bid of the
Petitioner was disqualified. The petitioner also prays for a direction to the
Respondent to consider the bid of the Petitioner as techno-commercially
responsive and to open the bid of the Petitioner and consider the same for
award of the contract.
2. Learned Senior Counsel for the Petitioner states that the tender dated
17th October, 2023 was floated by the Respondent for supply, installation,
testing, commissioning and annual maintenance of RF Tools and Testers.
She states that the bid of the Petitioner has been wrongly rejected under
Clause 4.1.7 and the Respondent failed to consider that Clause 4.1.7 of the
Tender Document is not applicable to the Petitioner. She further states that
Clause 4.1.7 is only applicable to "bidders who shares a land border with
India", whereas Petitioner is an Indian manufacturer (100% Indian owned
company with Indian IPR). According to her, Petitioner is the only OEM of
Drive Test Tool/Post Processing Tool as required under Clause 4.1.2 of the
Tender Document and does not require any authorization from any vendor
as mentioned in the said clause.
3. She submits that the impugned rejection order is a non-speaking
communication and does not provide any reason as to how it has deemed the
Petitioner as a "bidder who shares a land border with India".
4. She states that the Respondent has wrongly linked Clause 4.1.7 and
Query No. 4 to infer that Petitioner is an "agent" of Lenovo and OnePlus,
since the bid quoted Lenovo-make Servers and Laptop, and OnePlus-make
Mobile Handsets.
5. She states that the Petitioner cannot construed to be an agent of
Lenovo or OnePlus for various reasons. Firstly, Petitioner had bid for
servers and laptops manufactured by Lenovo India Pvt. Ltd. Also, the
OnePlus mobile handsets proposed are made in India. Secondly, without
prejudice, Petitioner had only bid for procurement of hardware elements
from Lenovo and OnePlus, which are not covered in the definition of
finished products and only serve as raw materials for tools to be
manufactured by Petitioner. She lastly states that the Petitioner even
undertook to offer alternatives like Dell and Samsung without modifying the
proposed bid price.
6. Issue notice. Ms. Leena Tuteja, Advocate for BSNL accepts notice.
7. Learned senior counsel for the Respondent states that the decision to
disqualify the Petitioner is in consonance with the facts of the case and
legally tenable. He, however, candidly admits that the reasoning in the
impugned order is cryptic. He states that the Respondent is willing to treat
the present writ petition as a representation and decide the same by way of a
speaking order.
8. Learned senior counsel for the Petitioner is satisfied with the offer
made by the learned senior counsel for the Respondent.
9. Consequently, the present writ petition is disposed of with a direction
to the Respondent to treat the present writ petition as a representation and to
decide the same by way of a reasoned order in accordance with law within
ten days.
10. In the event, the Petitioner is aggrieved by the decision taken by the
Respondent, the Petitioner shall be at liberty to file appropriate proceedings
in accordance with law. The rights and contentions of the parties are left
open.
ACTING CHIEF JUSTICE
MANMEET PRITAM SINGH ARORA, J
MARCH 28, 2024/rhc
