Madras High Court
M/S Xo Footwear Pvt.Ltd vs The Managing Director And Tender ... on 21 April, 2022
W.P. No.9046 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:21.04.2022
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P. No.9046 of 2022
and W.M.P No.8845 of 2022
M/s XO Footwear Pvt.Ltd.
Rep by its Director
Mr Nalin Gupta
Regd. Off.: A-122, Mangolpuri
Industrial Area, Phase – II,
New Delhi – 110 034 ...Petitioner
Vs.
The Managing Director and Tender Inviting Authority,
Tamil Nadu Text Book and Educational Services Corporation,
EVK SAMPATH MAALIGAI,D.P.I.Campus
68, College Road,
Chennai – 600 006. …Respondent
Prayer:Writ Petition filed under Article 226 of the Constitution of India, to issue
aWrit of Mandamus, directing the respondent to consider the petitioner as
qualified in the technical bid and further direct them to open and consider the
financial bid of the petitioner in the Tender REF.RC.NO.10454/PUR-1/2021.
1
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For Petitioner : Mr.SatishParasaran
Senior Counsel
for Mr.Jitender Mehta D.
For Respondent : Mr.J.Ravindran
Additional Advocate General
assisted by
Mr.D.Ravichander
Special Government Pleader
and Mrs.S.Varsha
ORDER
The petitioner is a company based in New Delhi that claims to be engaged
in the manufacture and supply of shoes, socks and bags. It claims to have been
awarded and successfully executed several contracts, both with the Government as
well as with private entities.
2. The petitioner responded to Notification dated 20.12.2021 issued by the
Tamil Nadu Text Book and Educational Services Corporation
(respondent/Corporation) inviting applications for the supply of 71.30 lakhs pair
of socks for school going children studying in Government and aided schools of
Tamil Nadu on Annual Rate Contract basis for the academic year 2022-2023. The
petitioner submitted its bid on 28.01.2022 believing itself to be in compliance of
all required parameters.
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3. The petitioner has received a communication dated 01.03.2022 from the
respondent stating that from the available records of the Jharkhand High Court, it
was noticed that the petitioner had been debarred/blacklisted by the Jharkhand
Education Project Council and the debarment has been confirmed by the Hon’ble
Court in L.P.A.No.186 of 2020 and S.L.P.(c) No.015791-/2020 before the Hon’ble
Supreme Court of India.
4. The views of the petitioner in regard to the aforesaid observations along
with its explanation enclosing relevant documents were directed to be provided
within a period of four days from date of receipt of the letter, failing which, the
authority stated that he would assume that the observations were true and would
proceed accordingly.
5. On 03.03.2022, the petitioner responded to the communication pointing
out that the contents of the letter were not correct. They conceded that there had,
no doubt, been a debarment order passed by the Jharkhand Education Project
Council on 18.09.2019. The term of debarment was one year and as such, the
debarment had expired on 17.09.2020.
6. Notwithstanding such expiry, the debarment had itself been the subject
matter of challenge before the Hon’ble Supreme Court, as rightly noted by the
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authority. However, the statement that the debarment had been confirmed was
erroneous, as, on the contrary, a three Judge Bench of the Hon’ble Supreme Court
had stayed the debarment, vide its order dated 29.01.2021. The SLP is pending till
date. There was no response received after the petitioner filed its reply.
7. The petitioner thus proceeded on the assumption that the reply had been
accepted. In such circumstances, it was surprised to find, when the short list of
tenderers who had passed the technical evaluation was put up, that it had not made
the cut. Bearing in mind the position that as on the date when the short list of
tenderers was put up, the only information available with the petitioner that might
be held against it was the factum of prior debarment, the present Writ Petition
came to be filed challenging the non-selection of the petitioner for the second
stage of tender.
8. When the matter came up for admission on 08.04.2022, after hearing the
parties, the following order was passed:
Mr.D.Ravichander, learned Special Government Pleader,
assisted by Ms.Varsha, accepts notice for the respondents and both
learned counsel are in full possession of facts to enable
consideration of interim protection as sought for by the petitioner.
2. The petitioner has submitted a bid in response to a tender
for the supply and delivery of socks to school children in Tamil
Nadu on actual rate basis for the year 2022-2023.
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3. The trigger for the present Writ Petition is at the instance
of the respondents who had issued show cause notice on
01.03.2022 calling for an explanation as to why the bid not be
rejected, since the petitioner had been debarred/black listed by the
Jharkhand Education Project Council.
4. The blacklisting was confirmed both by a learned single
Judge as well as the Division Bench of the Jharkhand High Court
and is pending before the Hon’ble Supreme Court in SLP Civil
No.015791-/2020.
5. The period of blacklisting was itself only for a period of
one year, from 17.09.2019 to 17.09.2020, and thus has expired as
on date. In any event, and as the petitioner had pursued its
challenge as against the blacklisting, the Hon'ble Supreme Court
has stayed the order.
6. The petitioner, on 03.03.2022, has responded to the show
cause notice but the respondent, has not been deliberated upon the
reply, which, in the opinion of the Court, ought to have been done.
7. At this juncture, reference may be made to Section 10 of
the Tamil Nadu Transparency in Tenders Act, 1998 ('Act') that sets
out the process of evaluation and acceptance of tender. This
provision does not require the tender accepting authority to call
for clarifications from the tenderer.
8. It is Rule 27 of the Rules, dealing with the process of
tender evaluation, that empowers the authority to seek bona fide
clarifications from tenderers relating to the bids submitted by
them. Thus, letter dated 01.03.2022 has been issued, invoking Rule
27(4) and, having sought a bona fide clarification from the
petitioner, it was incumbent upon the authority to have determined
the issue before proceeding further.
9.This aspect of the matters is over and above the prima facie
case made out by the petitioner for expiry of the blacklisting itself.
The respondent did not shortlist the petitioner for the second stage
of tender evaluation, which indicates that the respondents were
unconvinced with the reply submitted on 03.03.2022.
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10.In such an event, it was incumbent upon the authority to
hear the tenderer and pass a speaking order which has also not
been done, and this, in my considered view, amounts to violation of
the principles of natural justice.
11. For the aforesaid reasons, the bid of the petitioner shall
be proceeded with, subject to the result of this Writ Petition.
12. List on 13.04.2022. Counter by then with an advance copy
served upon the petitioner.
9. Pleadings have been completed thereafter and in the counter filed, the
respondent categorically states that it is not just the debarment that has stood in the
way of the petitioner being shortlisted and there are other reasons as well. This
aspect of the matter is dealt with at paragraphs 53 and 54 of this order.
10. The preliminary defence of the respondent is one of challenge to
maintainability. The prayer of the petitioner is for a direction to the respondents to
consider it as qualified in the technical bid and further direct them to open and
consider the financial bid of the petitioner in the tender.
11. Learned Additional Advocate General Mr.J.Ravindran would point out
that it does not lie for the Court to consider award of a contract to an entity or to
examine its eligibility for the purpose of such award and such a prayer is thus
impermissible. The award of a tender or selection of a candidate falls within the
exclusive domain of the contractor, in this case, the respondent Corporation and
acceding to the request of the petitioner in this case would open the pandora’s box
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as it would set a precedent for all disgruntled tenderers to approach this Court
complaining that their credentials were more worthy of consideration.
12. Such a practice, he says, must be deprecated and the scope of judicial
review strictly kept in mind. He reminds the Court of the dictum of the judgments
of the Hon’ble Supreme Court in National High Speed Rail Corporation Limited Vs
Montecarlo Limited [2022 LiveLaw SC 108] and M/s.N.G.Projects Limited Vs
M/s.Vinod Kumar Jain &Ors. [2022 LiveLaw SC 302], wherein the limited scope of
judicial review in tender matters has been reiterated by the Hon’ble Apex Court.
13. Two seminal issues have been raised in this Writ Petition, that are
crystallised below:
i) In the case of debarment, whether the entity once debarred/black
listed is to be punished for eternity by the State of Tamil Nadu; and
ii) Whether the procedure under the Tamil Nadu Transparency in
Tenders Act, 1998 ('Act') and the Tamil Nadu Transparency in
Tenders Rules, 2000 (‘Rules’) are, as the titles suggest, transparent or
whether the practice and procedure presently followed is opaque
warranting change.
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14. Coming to the first issue, the relevant dates in this connection are as
follows:
i) The petitioner was debarred by the Jharkhand Education Project Council
on 18.09.2019.
ii) The reason for debarment was that the sample of the product supplied by
the petitioner along with its bid was found unsuitable.
iii) The period of debarment has expired on 18.09.2020.
iv) The Division Bench of the Jharkhand High Court had upheld the
debarment, as against which, Special Leave Petition was filed by the petitioner in
SLP (c) No.015791-/2020, notwithstanding that the period of debarment had itself
expired. The judgment of Division Bench confirming the debarment has been
stayed by a Bench comprising three Judges Bench of the Hon’ble Supreme Court,
by order dated 29.01.2021.
v) The bid document includes a declaration at Annexure –VI to the effect
that the tenderer declarers that ‘it or its partners/shareholders have not been
blacklisted by Central/any State Government and its Public Sector
Undertakings/Corporations.’
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vi) The petitioner has proceeded on the basis that the appropriate, logical
and proper interpretation of the declaration would be in the context of current/live
debarment/blacklisting and not an event in the past that has expired.
vii) The bid contains a provision for tenderers to seek clarification and a
query was raised by another bidder to following effect:
3. Does this mean that if a Bidder has ever been blacklisted
by any state or central government department then he is not
allowed to participate in this tender?
viii) To this, the remarkof the contractor is ‘Bid condition confirmed’.
ix) This remark, in my view, provides no clarity, as the language in the
declaration is capable of more than one interpretation.
x) Relevantly, for all 20 queries that have been raised by prospective
bidders, the remark of the Tender Inviting Authority (TIA) in all 20 cases, is ‘Bid
condition confirmed’.
xi) To my mind, the in-built mechanism for clarifying the tender conditions
is an utter failure, if this were to be the manner in which the TIA proposes to
address the clarifications. No doubt, some of the clarifications make suggestions
for changes in the tender conditions and these have to be considered solely at the
discretion of the tenderers/contractors, however, there are other clarifications that
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have been sought, such as query 3, extracted above, and a few others that merely
seek explanation or clarity to be provided which could well have been done.
15. To my mind, the consequence of blacklisting cannot be for all times.
Normally, an order of blacklisting is by itself, circumscribed by a tenure
proportionate to the irregularity/deviation for which the punishment is imposed.
In such an event, once the period of blacklisting is over, it must be construed to be
business as usual.
16. Assuming a situation where the offence committed or the irregularity in
question is so egregious so as to warrant a life time blacklisting/debarment, then
so be it, but such instances would be the exception and not the norm and in most
of the cases of blacklisting, orders are seen to span a year or few years at the most.
17. The Hon’ble Supreme Court in the case of Kulja Industries Limited Vs
Chief Gen. Manager W.T.Proj. BSNL and Ors. (AIR 2014 SC 9) had had occasion to
consider the effect and consequences of blacklisting, particularly in the context of
allocation of government contracts. The question that fell for determination was
whether the respondent, i.e., the Bharat Sanchar Nigam Limited (BSNL) was right
in blacklisting the appellant for allotment of contracts, for all time.
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18. The Division Bench of the Bombay High Court had answered the
question in the affirmative, as against which an appeal was filed before the
Hon’ble Supreme Court. The Bench examined the position in the context of
domestic as well as international law. The submissions of the appellant were that a
permanent debarment was wholly arbitrary as an order of blacklisting, by itself,
imposed very serious civil consequences for the entity punished.
19. It was thus necessary that such a punitive step be tempered with
reasonableness and fairness. Blacklisting must be proportionate to the offence for
which the entity is punished and while the period might vary, it could not be for all
time. The Hon’ble Supreme Court considered the provisions in the bid
documents, in terms of which the contractor had reserved its right to disqualify the
supplier for a particular period and for particular deficiencies/failures.
20. There is no doubt in regard to the position that in the contractor vests
such power. The Court also held that dehors the specific language used in a bid
document relating to disqualification for certain enumerated offences, the scope of
such power, as set out in the document, could not be taken to be exhaustive, as the
power to blacklist available to be exercised by the contractor in any number of
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situations that might present themselves in a commercial contract, was inherent in
the party allotting the contract.
21. This is for the reason that a debarment, by its very nature, is a
commercial or a business decision, by which the party affected by a particular
failure/deficiency, punishes the offender by its decision not to enter into a
contractual relationship with that party for a particular period of time.
22. The Court compared the identical scenarios in the context of the law in
USA, UK, England, Wales and Northern Ireland, where there are statutory
provisions to make operators ineligible on various grounds including fraud,
fraudulent trading, conspiracy to defraud, bribery or other offences.
23. The test they say would be one of proportionality and this test must be
applied bearing in mind the offence that is alleged to have been committed by the
party that committed the breach. Paragraph 24 is relevant insofar as, while they
say that debarment is an effective deterrent for the continued perpetration of
offence, such a measure can never be a permanent measure. Paragraph 24 is
extracted herein below:
24. Suffice it to say that ‘debarment’ is recognised and often used as
an effective method for disciplining deviant suppliers/contractors
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who may have committed acts of omission and commission or frauds
including misrepresentations, falsification of records and other
breaches of the regulations under which such contracts were
allotted. What is notable is that the ‘debarment’ is never permanent
and the period of debarment would invariably depend upon the
nature of the offence committed by the erring contractor.
This decision has been followed subsequently by the Hon’ble Supreme
Court in B.C.Biyani Projects Pvt. Ltd. Vs State of M.P. and Ors. (2017(3) AWC 2840
SC).
24. The first question is thus answered holding that the tender documents of
the State must provide clarity in regard to the specifics of blacklisting/debarment
suffered by the applicant. This condition is imposed only by way of the
declaration to be filed by the bidder and not by way of a specific condition itself.
25. In line with the judgment of the Hon’ble Supreme Court in Kulja
Industries Limited (supra), the declaration must henceforth contain options for
eliciting whether (i) there has ever been an order of blacklisting/debarment
suffered by the tenderer, (ii) what the dates/tenure of blacklisting/debarment were,
(iii) the purpose of the blacklisting (iv) whether there was any challenge to the
same either before the tendering authority or the Courts, (v) the status of the
litigation, if any, and (vi) whether blacklisting/debarment imposed upon the bidder
is current/live.
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26. In cases where the blacklisting has long passed, there is, in the
considered view of the Court, very little merit in the State rejecting the
applications of the tenderers solely on that basis. What must be taken into account
is the purpose for the blacklisting in the first place and whether it is current. A
misdeed committed in the past cannot continue to haunt an entity forever and this
would go against all cannons of fairness and reasonableness.
27. The absurdity in the situation is clear from the fact that the Jharkhand
Education Project Council, that had debarred the petitioner originally, has itself
awarded tenders subsequently to the petitioner after the expiry of debarment. The
State cannot assume a holier than thou attitude in such cases.
28. Learned Additional Advocate General all but confirms that the
declaration under Annexure VI, as in the present contract, is more or less standard
across the board and a condition imposed in all Government contracts. However,
and to quote him, he ‘sails with the thinking of the Court’, as set out in the above
paragraphs and as expressed in the open Court. Suitable amendments will be made
to the tender documents issued by the State, going forward.
29. Issue No.1 is answered in favour of the petitioner and as a consequence,
blacklisting dated 17.09.2019 is not relevant any further in the case of the
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petitioner, subject to the judgement of Hon’ble Supreme Court in the pending civil
appeal.
30. This takes me to the second legal issue to be answered, which is what is
the level of transparency that is required to be maintained by the respondent and
the authorities in grant of tender and how this must be balanced with the aspect of
confidentiality that is so integral to tender matters.
31. The scheme of the Act and Rules is required to be examined. The Rules
define, under Rule 2(e) and 2(h) a ‘two-cover system’ and ‘multi stage tender’,that
constitute methodologies adopted by agencies in the State of Tamil Nadu for
conduct of tender. These processes are defined as follows:
2(e) ‘Two-cover System’ means a procedure under which the tenderers
are required to simultaneously submit two separate sealed covers, one containing
the Earnest Money Deposit and the details of their capability to undertake the
tender which will be opened first and the second cover containing the
2[financial] quotation which will be opened only if the tenderer is found qualified
to execute the tender;
2(h) ‘Multi-Stage Tender’ means a tender in which there are atleast two
stages including an initial stage of short-listing based on the fulfillment of
eligibility criteria based on experience and financial or technical parameters or
both and a final stage in which only the qualified, short-listed tenderers are
invited to submit their financial bids;
32. The difference between 1 and 2 is that, in a two envelope process, the
bidder is expected to submit both technical (1st stage) and financial (2nd stage) bid
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simultaneously, though the bids are opened in a staggered fashion. The technical
bids are first opened, the eligibility of the bidders is determined and those that
make the cut are short-listed to the second stage, when their financial bids are
alone opened.
33. In the second method, the submission of bids is itself staggered, the
bidders being required to submit technical bids first, the authorities forming a
short list based on their bids and the short listed bidders thereafter submitting
financial bids for due consideration of the authority. In the present case, the
methodology followed is the former.
34. There are two authorities who are instrumental in initiating and
executing the award of tender. The first is the TIA, which assumes full
responsibility for the process involved at the initial stages, i.e., the invitation to
bid, the receipt of the bids and all processes incidental, allied and connected
thereto. There is a requirement that full confidentiality be maintained in regard to
these processes and this is echoed in Rule 27 of the Rules that reads as follows:
27. Process of tender evaluation to be confidential until the award of
the contract is notified.- (1) Subject to the provision of 44[sections 13
and 14 of the Act], the Tender Inviting Authority shall ensure the
confidentiality of the process of tender evaluation until orders on the
tenders are passed.
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(2) The Tender Accepting Authority shall cause the information on
orders passed on the tenders published in the Tender Bulletin.
(3) Tenderers shall not make attempts to establish unsolicited and
unauthorised contact with the Tender Accepting Authority, Tender
Inviting Authority or Tender Scrutiny Committee after the opening of
the Tender and prior to the notification of the Award and any attempt
by any tenderer to bring to bear extraneous pressures on the Tender
Accepting Authority shall be sufficient reason to disqualify the
tenderer. (4) Notwithstanding anything contained in sub-rule (3), the
Tender Inviting Authority or the Tender Accepting Authority may seek
bonafide clarifications from tenderers relating to the tenders
submitted by them during the evaluation of tenders.
35. The role of the Tender Accepting Authority (TAA) is different and
involves engagement with the entirety of the procedures relating to processing of
the tender culminating in award of the same. Rule 27 providing for confidentiality
does not cover the TAA. This does not mean that TAA is not required to maintain
confidentiality, but only means that the rigour of confidentiality imposed under the
Act is more specific to the TIA. This understanding will also help in interpreting
the processes and procedures under the Act and the roles assigned to the TIA and
TAA respectively.
36. Section 10 sets out the methodology for acceptance of tenders and reads
thus:
10. Evaluation and Acceptance of Tender.-
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(1) The Tender Accepting Authority shall cause an objective
evaluation of the tenders taking into consideration the schedule of rates
as mentioned in the tender document and the prevailing market rate for
procurement and comparison of the tenders in accordance with the
procedure and criteria specified in the tender document.
(2) After evaluation and comparison of tenders as specified in
sub-section (1), the Tender Accepting Authority shall accept the lowest
tender ascertained on the basis of objective and quantifiable factors
specified in the tender document and giving relative weights among
them:
Provided that the Tender Accepting Authority shall accept the
tender of domestic enterprises, not being the lowest tender, upon
satisfaction of such conditions as may be prescribed, in respect only of
goods manufactured or produced and services provided or rendered by
them, and only to the extent of not exceeding twenty five per cent of the
total requirement in that procurement, if such domestic enterprise is
willing to match the price of the lowest tender:
Provided further that the Tender Accepting Authority shall
accept the tender of a department of Government, Public Sector
Undertaking, Statutory Board and other similar institutions as may be
notified, not being the lowest tender, upon satisfaction of such
conditions as may be prescribed, in respect only of goods manufactured
or produced and services provided or rendered by them, and only to the
extent of not exceeding forty per cent of the total requirement in that
procurement, if such tenderer is willing to match the price of the lowest
tender:
Provided also that in case of a single procurement, the total
procurement under the above two provisos shall not exceed forty
percent of the total requirement in that procurement.]
(3) Notwithstanding anything contained in sub-section (2), if the
Tender Accepting Authority decides that the price of the lowest tender
is higher with reference to the prevailing market rate or the schedule of
rates, 17[the said authority] may negotiate for a reduction of price with
that tenderer.
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(4) If at any time before the acceptance of tender, the Tender
Accepting Authority receives information that a tenderer who has
submitted tender has been banned by any Procuring Entity, 17[the said
authority] shall not accept the tender of that tenderer even if it may be
the lowest tender.
(5) In case where two or more tenderers quoted the same price,
the Tender Accepting Authority shall split the procurement among such
tenderers taking into consideration the experience and credentials of
such tenderers. Where such splitting is not possible or could not be
done equally, 17[the said authority] shall record reasons for the same.
(6) If the Tender Accepting Authority proposes to accept the
tender as per the provisions of this section, 17[the said authority] shall
pass orders accepting the tender together with reasons for such
acceptance: 18[Provided that if the tenderer is unable to supply the
entire quantity required, the Tender Accepting Authority may follow the
fixed rate contract procedure as may be prescribed.]
(7) The Tender Accepting Authority shall intimate the
information regarding the name and address of the tenderer whose
tender has been accepted along with the reasons for rejection of other
tenders to the appropriate Tender Bulletin Officers.
37. Section 10(1) refers to the manner in which financial bids would be
opened and conspicuous by its absence is the procedure to be followed in opening
technical bids, that is, the first stage in two-bid and multi-stage contracts. The
practice followed as of now is that, the technical bids are opened by the TAA,
various parameters that have been earmarked are duly examined, the tenderers and
the bids assessed for technical competence, and a decision taken to either short list
them or reject the bids at that stage for want of technical qualification.
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38. No communication is made with the tenderer at that stage and they are
not informed of the reasons for rejection if they have not made the short list. The
question that arises is as to whether they are entitled to such reasons as it would
enable the rejected tenderers, including the petitioner in the present case, to
understand where their bids have fallen short and take remedial measures.
39. On the other hand, it is the stand of the respondent and this is an
unnecessary request and one that cannot be expected to be acceded to, as
confidentiality in regard to this aspect of the mater must be maintained to ensure
integrity of the tender process.
40. Reliance is placed by the petitioner upon a judgment of the
Constitutional Bench of the Hon’ble Supreme Court in State of Punjab and Others
Vs Jagdev Singh Talwandi [(1984) 1 SCC 596]. This matter related to a challenge
to preventive detention and one of the questions that the Court considered was the
importance of reasoning in orders passed by the High Court.
41. The analogy sought to be drawn relates to the defence put forth by the
respondents, to state that reasons are the soul of any process, including the tender
process, and thus, the respondents must be compelled to furnish the reasons for
rejection promptly as civil rights of parties are at stake.
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42. On a consideration of the provisions of the Act and Rules, I agree with
the respondent that there is no methodology available for
disclosure/communication of reasons for rejection at the 1st stage itself. This is
more for a practical reason and also to ensure, as respondents urge, some method
and procedure in the process evolved. Incidentally and looking at the tenor of
disposal of clarifications raised by the tenderers, this Court urges that there be a
more concerted and bonafide effort to address the clarifications in a purposive and
practical manner so as to assist the tender process rather than frustrate it.
43. The provisions of Sections 10 and 11 should be read together. Section
11 provides for a remedy to those tenderers whose bids have been rejected either
at 1st stage or 2nd stage to file an appeal before the TIA questioning their non-
selection/rejection. This appears to be the proper method to be followed, as, if the
contentions of the petitioner were to be accepted, there is every possibility that the
tender process including award would get unduly delayed, even in the interim
stage, i.e., between 1st and 2nd stage.
44. This is not in the interests of either the tender process or the concerned
project and thus I find the design of the method adopted under the Act and Rules
in this regard to be appropriate and not perverse, requiring intervention by the
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Court. However, one apprehension expressed by the petitioner is legitimate.
Under Rule 5, the tender authority publishes a weekly bulletin which is to reveal
details of all tenders floated and awarded. This bulletin is stated to be regular in
its publication.
45. However, more often than not, once the award of tender is published,
there remains very little time or opportunity for the rejected bidders to take
remedial measures, either by way of justifying their bids or by way of pointing out
lacunae in the successful tenderers’ bids, as the work orders have been issued and
work commenced by then.
46. Whether remedy is sought before the Courts or by way of appeal, there
is reluctance to interfere with an on going project and this is an admitted position.
However, the remedy for this is not to interfere with the process itself but to render
more efficient, the existing protocol and processes.
47. Section 11, which provides for appeal remedy, reads as follows:
11. Appeal.- (1) Any tenderer aggrieved by the order passed by
the Tender Accepting Authority under section 10 may appeal to the
Government within ten days from the date of receipt of order and the
Government shall dispose the appeal within fifteen days from the date
of receipt.
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W.P. No.9046 of 2022
(2) In disposing of an appeal under sub-section (1), the
Government may, after giving the party an opportunity of making his
representations, pass such order thereon as they may deem fit.
(3) The order of the Government on such appeal shall be final.
(4) The Government may, pending the exercise of their powers
under this section pass such interlocutory orders as they may deem fit.
48. Section 11 as seen above, is a self-contained provision, which also, inter
alia provides for and vests power of interim protection under sub-section (4)
thereof, upon the appellate authority and rightly so. Thus, all that remains is for
the rejected bidder to take steps promptly and in a timely fashion to address the
lacunae in the tender process and such application for interim protection, if any, to
be taken up and considered promptly.
49. The former requirement falls within the domain of a bidder and as far as
the latter is concerned, this Court believes it reasonable to direct that, in general,
stay petitions/petitions for interim protection that are filed by unsuccessful
tenderers must be taken up and disposed expeditiously and in any event, within 48
hours of such filing. The result of the application for interim protection is, without
doubt, the discretion of the Appellate Authority, unless shown to be perverse.
50. The second question is answered accordingly and this Court believes
that the process already in place, with the added direction now issued, would result
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W.P. No.9046 of 2022
in a robust mechanism that would streamline the existing procedures/protocols in
the tender process.
51. The plea of maintainability is rejected as the prayer sought has to be
seen and understood in the context and stage of proceedings of the matter at the
time when the writ petition was filed. At that juncture the only information
available with the petitioner was communication of the respondents dated
01.03.2022, relating to blacklisting.
52. In light of the facts and circumstances surrounding the issue of
blacklisting and the conclusion of this Court in this order relating thereto, I find
nothing untoward in the prayer sought. Later events must however be referred to
and the counter filed states that there were other reasons for which the petitioner’s
bid was found wanting in the technical evaluation.
53. The files were sought and produced before me and upon perusal, I find
the presence of other factors in the assessment that have led to the decision of
rejection of its bid. I say no more in this regard as it is unnecessary and in the
event that the petitioner chooses to challenge the tender, once awarded, before the
authority.
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W.P. No.9046 of 2022
54. The tender process shall continue in accordance with law and tender
conditions, as proposed and scheduled. This Writ Petition is disposed in terms of
the aforesaid discussion and observations. No costs. Connected Miscellaneous
Petition is closed.
21.04.2022
Index : Yes/No
Speaking Order/Non speaking Order
sl
Note: Registry is directed to upload this order
today.
To
The Managing Director and Tender Inviting Authority,
Tamil Nadu Text Book and Educational Services Corporation,
EVK SAMPATH MAALIGAI,D.P.I.Campus
68, College Road,Chennai – 600 006.
https://www.mhc.tn.gov.in/judis
W.P. No.9046 of 2022
DR.ANITA SUMANTH,J.
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W.P. No.9046 of 2022
and
W.M.P No.8845 of 2022
21.04.2022
https://www.mhc.tn.gov.in/judis
