Delhi High Court
Good Year Security Services R. vs Union Of India And Ors. on 8 October, 2024
Author: Tushar Rao Gedela
Bench: Tushar Rao Gedela
$~57
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 14209/2024 & C.M. Nos. 59423-59424/2024
GOOD YEAR SECURITY SERVICES (R) .....Petitioner
Through: Mr. Abhay Kumar with Mr. Shagun
Ruhil, Mr. Gaurav Tirupati and Mr.
Karan Chopra, Advocates.
versus
UNION OF INDIA & ORS. .....Respondents
Through: Mr. Vikram Jetly, CGSC with Ms.
Shreya Jetly, Advocates for R-1 and
Mr. Taqvi, GP.
Mr. Sugam Kumar Jha, Mr.
Sureedass K.P. and Mr. Raghav
Tandon, Advocates for R-2.
% Date of Decision: 8th October, 2024
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
MANMOHAN, CJ : (ORAL)
1. Present writ petition has been filed seeking quashing of Tender No.
GEM/2024/B/5347639 dated 31st August, 2024 alongwith its Evaluation
Criteria and Request for Proposal (for short 'RFP') dated 31st August,
2024.
2. The petitioner had approached this Court in an earlier writ petition
bearing W.P.(C)12890/2024 with the same prayer challenging the Tender
No. GEM/2024/B/5347639 dated 31st August, 2024 alongwith its
Evaluation Criteria and RFP dated 31st August, 2024. This Court had vide
order dated 13th September, 2024 directed the respondent no. 2/Sports
Authority of India (for short 'SAI') that the representation dated 6th
September, 2024 of the petitioner be disposed of within two working days.
The respondent no.2/SAI has accordingly disposed of the said
representation by the rejection order dated 18th September, 2024. Not being
satisfied, the petitioner has preferred the present writ petition.
3. Mr. Abhay Kumar, learned counsel appearing for the petitioner has
reiterated the arguments addressed by him on the previous occasion while
this Court was hearing W.P.(C) 12890/2024. He states that though the
respondent no.2/SAI has disposed of its representation, yet the rejection
order is bereft of any rationale. He states that the same is vague and has not
really considered any of the objections raised in the representation.
4. He states that the petitioner is capable of supplying manpower in
accordance with Clause 3.17 of the Terms of Reference (for short 'TOR')
and thus, the assumption that it cannot supply such manpower is
unfounded. He states that the Marking Scheme is also skewed. As an
example, he refers to SI. No. 4 of the evaluation criteria of the TOR to
submit that though the requirement of security personnel is 212 and may go
upto 50% more, that is, around 315-320, lowest marks of 5 are awarded to
the bidder having 350-500 security personnel. He states that this is not even
the condition of the TOR itself. He states that this eligibility condition is
even beyond the scope of the TOR. In any case, he states that the petitioner
is capable of supplying even 350 security personnel as and when required.
5. Learned counsel for the petitioner also states that the subject tender
has an estimated cost of Rs.20,65,26,638.02/- with contract duration of two
years and a total requirement of 212 security personnel (196 Unarmed
Security Guards, 6 Armed Security Guards and 10 Security Supervisors).
He states that an average annual turnover requirement of Rs.31,00,00,000/-
has been inserted in order to weed out small firms and companies, such as
the petitioner in the present case. He states that this eligibility condition
mandates that any agency participating in the subject tender should have an
average annual turnover of almost Rs.93 crores for a period of three (3)
years, meaning thereby that the requirement of average annual turnover for
past three years is almost five times the actual estimated cost of the subject
tender. According to him, this condition is onerous and has been inserted
with a view to eliminate bidders like the petitioner and ought to be struck
down as unjust and unfair.
6. He states that the Marking Scheme has been designed only to cater
the big contractors inasmuch as the various criteria adopted reflects
elimination of marginal and small players like the petitioner. According to
learned counsel for the petitioner, every component of the eligibility
criteria is measured arbitrarily to weed out smaller players. He states that
the Marking Scheme providing lower marks for least experienced, lower
marks for turnover of last three years and lowest marks for executed
projects of not less than Rs.8.27 crores during past five (5) years etc., is
wilfully designed to keep the petitioner and other smaller players out of the
game entirely. He states that even if the petitioner has requisite years of
experience or the manpower, yet on other components of eligibility criteria,
the petitioner shall stand to lose out. In other words, he states that any
which way, the smaller players would have no chance of fair competition.
He states that it is well settled that in contractual matters, larger
participation ensures competitive rates and level playing field to all. On the
above submissions, he prays that the writ petition be allowed.
7. Per contra, Mr. Sugam Kumar Jha, learned counsel for respondent
no.2/SAI states that around 86 bidders had bid for the TOR in question and
thus, there is no question of the terms being restrictive and keeping the
smaller bidders out. He states that the order rejecting the representation of
the petitioner is self explanatory and reiterates its contents.
8. This Court has considered the submission of the learned counsel for
the parties and examined the rejection order dated 18th September, 2024.
9. The law in respect of judicial intervention in interpretation of tender
conditions is no more res integra. In Balaji Ventures vs. Maharashtra
State Power Generation Company Ltd. & Anr., 2022 SCC OnLine SC
1967, the Supreme Court has succinctly held that the tender issuing
authority should always have the freedom to provide the eligibility criteria
and/or the terms and conditions of the bid unless it is found to be arbitrary,
mala fide and/or tailor made. It was further held that the bidder/tenderer
cannot be permitted to challenge the tender/bid conditions/clause which
might not suit him and/or be convenient to him. The Supreme Court in
Monte Carlo Limited vs. National Thermal Power Corporation Limited,
(2016) 15 SCC 272 held that the tender issuing authority is the best person
to understand and appreciate its requirements and interpret its documents
so long as there are no mala fides or arbitrariness. It was further observed
that the government must have freedom of contract and such action can be
tested by applying Wednesbury Principles and also examining whether it
suffers from arbitrariness, bias or mala fides. (See also Tata Cellular vs.
Union of India, (1994) 6 SCC 651, Airport Authority of India vs. Centre
for Aviation Policy, Safety & Research (CAPSR), 2022 SCC OnLine SC
1334 and M/s Rasoi Canteen & Caterer vs. Indian Institute of
Technology, Delhi, W.P(C) No. 10136/2024 decided on 24th July, 2024).
10. To appreciate the above principles laid down in the context of the
present case, it would be apposite to consider the reasons and rationale
contained in the rejection order dated 18th September, 2024. The same is
extracted hereunder:
"SPORTS AUTHORITY OF INDIA
(ES Division)
F NO: 01-02001/35/2024-HO - Legal Division Dt: 18.09.24
To
M/s Good Year Security Services
Office A-75, Upper Ground Floor,
Sector-8, near Sports Complex,
Dwarka, New Delhi - 110077
Email: [email protected]
Subject: Response to Representation Regarding
Tender for Security manpower Deployment
at 05 Stadia of Sports Authority of India, Delhi
Reference: 1. Your representation dated 06.09.2024,
2. Order dated 13.09.2024 passed by the
Hon'ble High Court of Delhi in W.P.(C)
12890/2024.
Sir/Madam,
This is in reference to your representation dated 06.09.2024, and the
Order dated 13.09.2024 passed by the Hon'ble High Court of Delhi
in W.P.(C) 12890/2024, which directed the Sports Authority of India
(SAI)to respond to your representation. After careful consideration
of the issues raised, we wish to clarify that SAI, as the author of the
Tender, has structured the document with full knowledge of the
operational requirements and the security challenges that the SAI
stadia must address. Each condition in the tender has been included
with a distinct purpose and rationale, such as the requirement for a
large number of security personnel, the turnover conditions, and
other evaluation criteria. In view of which the allegations made in
your representation appear to reflect a misunderstanding of the
operational needs and complexities associated with the tender.
Nevertheless, to address the issues raised, we have provided a
detailed explanation below.
Details Representation SAI's Detailed Reason
Details Response
Turnover It is claimed that The turnover Security is a
Requirement the turnover requirement of Rs. critical priority
requirement of 31 Crores has been for SAI. The
Rs. 31 Crores is carefully personnel are
excessive and calculated based responsible for
should be on the total safeguarding
reduced to reflect contract value of athletes, VIPs,
the estimated Rs. 206,526,638.02 dignitaries,
one-year cost of over two years. prime ministers,
Rs. 10.32 Crores. This ensures the international
selected agency delegations,
has the financial sports stars, and
capacity to manage celebrities. Any
both routine financial
operations and instability in the
scale up during any selected agency
unscheduled could result in
international or service
domestic events. As disruptions or
per Clause 3.17 of lapses, which
the TOR, the are
security Personnel unacceptable in
requirement can such high-stakes
increase by 40- environments.
50% during Along with the
international and SAI's, the
national events as national
per the Author's goodwill and
right to amend the reputation are
Scope of Work in also at stake,
any unplanned or and there can be
unscheduled no compromise
events. The agency on security
must have the during these
financial resources high-profile
to handle this events.
scale-up, salaries,
equipment, and
logistics.
Experience of The tender asks The experience Managing large
Managing for experience in requirement for numbers of
Personnel managing 350 managing 350 personnel is
personnel, while personnel is essential for
only 202 are justified as per ensuring
needed for routine Clause 3.17, which adequate
operations. This anticipates a 40- coverage during
is deemed 50% increase high-profile
excessive and during contingency events. Security
unjustified. requirements personnel are
including national responsible for
or international monitoring
events, the number sensitive areas,
of personnel controlling
required can access, and
increase protecting VIPs
substantially and
beyond this, often International
requiring delegations. The
deployment of failure to
double or triple the provide
usual workspace. adequate
SAI's stadia personnel could
frequently host result in serious
high-profile security
events, requiring breaches. Given
heightened security the stakes
including crowd involved
control, access protecting
management, VIP public figures
security, and and preserving
public safety. Only national pride--
agencies there is no room
experienced in for error. The
handling large requirement to
teams can have experience
this scale-up. personnel
ensures that the
agency can
handle both the
regular and
scaled-up
demands of such
events.
Marking The marking The marking The marking
System system does not system has been system is
comply with carefully designed necessary to
government to prioritize ensure that only
norms and should agencies that agencies
be revised posses the capacity capable of
accordingly. to handle large managing high
contracts and the security
unique security operations are
challenges of SAI selected. The
stadia. As per events hosted at
Clause 3, the SAI stadia
agency must attract
demonstrate the dignitaries,
ability to deploy international
personnel quickly athletes, sports
and efficiently. stars, and
Especially during government
emergencies. officials,
Clause 3.17 including prime
anticipates a 40- ministers and
50% increase in international
personnel during leaders. Given
major events. The the
marking system sensitive nature
awards points for of
financial stability, these events, the
operational selected agency
flexibility, past must
experience in demonstrate
managing large- exceptional
scale operations, capability in
ensuring that the managing
selected agency personnel,
demands. responding to
crises, and
protecting key
individuals. Any
lapses could
lead to national
and
international
embarrassment,
as well as
damage to SAI's
reputation.
Therefore, the
marking system
is designed to
prioritize highly
capable
agencies.
EPF and The EPF The EPF Ensuring
Bonus contribution is set calculations follow compliance with
calculations at Rs. 65 per day, the ESIC Statutory
whereas it should and EPF rules. regulations is
be Rs. 75 per day The EPF vital for
as per statutory contribution has maintaining the
requirements. been calculated legal integrity of
Personnel based on a 30-day the contract.
earning more month, consistent The selected
than Rs. 21,000 with government agency must
are not entitled to practices. Rule 2 demonstrate
bonuses. (1B) of the compliance with
Employees' State government
consistent norms to avoid
Insurance legal disputes or
(Central) Rules, grievances.
1950, clarifies the Given the
appropriate sensitive nature
method for of the work
calculating EPF environment and
contributions. The the high stakes
calculation is involved, any
correct and reflects irregularities in
industry standards. wage or benefit
calculations
could
disrupt security
operations and
lead to
disgruntlement
among
personnel,
potentially
compromising
security.
Cancellation The tender is The tender process The tender
of Tender biased toward has been process has been
certain bidders conducted transparent
and should be transparently andfair, with
cancelled to through the GeM multiple
ensure fairness. Portal, with 86 bidders
bidders participating.
participated. This SAI
demonstrates that prioritizes
the tender is selecting
neither restrictive agencies
nor biased. Clause that can meet
3.16 provides SAI the
with the authority stringent
to the agency's security
performance and requirements
take corrective necessary to
action, including protect its stadia
contract and its high-
termination, if profile events.
performance The
standards are not integrity of this
met. The tender process ensures
process is that the best
competitive and suited
designed to select agency is
the most capable selected based
agency based on on capability
merit. and
performance,
rather than bias
or favouritism.
SAI cannot
afford to
compromise on
security due to
inadequate
agency
selection.
General The tender After careful SAI's stadia host
Observations contains various examination, no high-profile
anomalies that anomalies have events that
need to be been found in the attract
addressed before tender. The International
proceeding. conditions, attention. Given
including turnover, the scale and
experience, and the significance of
marking system, these events, SAI
have been designed must retain the
the security flexibility to
requirements of adapt
SAI. Clause 3 of its security
the TOR provides operations as
SAI with the per
flexibility to amend Clause 3 of the
the scope of work TOR. The
based on specific selected
needs, ensuring agency must
that security have the ability
measures can be to meet these
adapted as demands, as any
necessary. security lapse
could have
serious
repercussions on
the national and
international
stage.
Ensuring
absolute
security is
paramount to
SAI's goodwill,
reputation, and
the safety of its
guests.
The powers granted to SAI under the tender and the Terms of
Reference (TOR) ensure that the selected agency can meet the
stringent security standards necessary for safeguarding SAI
Infrastructure in general and also athletes, VIPs, dignitaries, and
high-profile guests attending events at SAI stadia. SAI retains the
authority to modify the security arrangements based on event
requirements, ensuring that there is no room for compromise on
security.
The security requirements set forth in this tender are non-negotiable
given the sensitivity of the security of the 05 stadia situated at
strategic locations and also in view of the national and international
significance of the events hosted. Any lapse in security could have
serious consequences, affecting SAI's reputation, goodwill, and the
safety of its guests.
We trust this detailed response addresses your concerns. As the
tender process has been fair and transparent, no changes will be
made to the tender conditions. Thank you for your understanding
and participation.
Regards,
[Vishnubhatla Sharma]
Assistant Director (ES)"
11. It can be clearly seen from the explanation rendered by the
respondent no.2/SAI that the TOR was designed keeping in mind the
requirement of security personnel at five (5) major stadiums of Delhi. The
respondent no.2/SAI appears to have taken into consideration the overall
situation regarding the number of stadiums; the exigency of events; the
international events; the international sports persons, dignitaries,
international delegations, celebrities; and other persons with high end
value, while floating the TOR. It also appears that the respondent no.2/SAI
does not want any risk regarding disruptions or lapses in services which
according to them, is unacceptable. The rationale behind the marking
system and the increase in the number of security personnel required in
times of exigency or events also appear to be justified. Respondent
no.2/SAI has also sought to justify the fairness by stating that around
eighty-six (86) bidders have submitted their bid documents in accordance
with the same TOR. It was also stated that none of the other bidders have
challenged any of the TOR's terms and conditions.
12. This Court is satisfied that the respondent no.2/SAI has given
plausible and reasonable justification while constructing the terms of TOR.
It appears from the aforesaid letter that the TOR does not suffer from the
vice of arbitrariness or unreasonableness. TOR appears to be in consonance
with the requirements of the tender issuing authority, i.e., respondent
no.2/SAI.
13. Thus, the petition has no merits and is dismissed along with the
pending applications.
CHIEF JUSTICE
TUSHAR RAO GEDELA, J
OCTOBER 8, 2024/rl
