Orissa High Court
Afr M/S Aroon Food Services Pvt. ... vs Airports Authority Of India on 6 September, 2022
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO. 22369 OF 2021
In the matter of an application under Articles 226 and 227
of the Constitution of India.
---------------
AFR M/s Aroon Food Services Pvt. Ltd. ..... Petitioner
-Versus-
Airports Authority of India
and others ..... Opp. Parties
For Petitioner : Mr. Ashis Mohan along with
M/s. Lingaraj Sarangi,
S.C. Atabudhi, A. Mohanty
and P. Anand, Advocates.
For Opp. Parties : Mr. S.P. Mishra, Sr. Advocate
along with M/s. G. Madani and
A. Kumar, Advocates
[O.Ps. 1 and 2]
Mr. L. Samantaray, along with
M/s Pratik Dash and S.A.
Pattanaik, Advocates.
[O.P.No.3]
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
AND
THE HONOURABLE MR. JUSTICE G. SATAPATHY
Date of hearing: 24.08.2022: Date of judgment: 06.09.2022
DR. B.R. SARANGI, J. The Petitioner, a Private Limited Company
incorporated under the Companies Act on 16.10.2014,
which is engaged in the business of manufacturing and
distributing food stuff, has entered into certain contracts
for F&B services with Opposite Party No.1 at various
airports. It has filed this writ petition represented through
its Director seeking to quash the letters/orders dated
17.04.2021 and 28.04.2021 under Annexure-2 series
issued by Opposite Party No.2 rejecting the technical bid of
the Petitioner, and consequential letter dated 21.05.2021
in Annexure-1 awarding the contract "Master Concession
to Design, Fit-Out, Finance, Develop, Market, Operate,
Maintain and Manage the Food and Beverage Outlets at
New Domestic Terminal Building (TI), Biju Patnaik
International Airport, Bhubaneswar" in favour of Opposite
Party No.3.
2. The factual matrix of the case, in a nutshell, is
that Opposite Party No.2-Airport Director, Bijupatnaik
International Airport, on behalf of Airports Authority of
India-Opposite Party No.1, vide Tender ID No. 2021_
AAI_70823_1, issued Request For Proposal (RFP) inviting
bids from the prospective bidders for award of the contract
"Concession to Design, Fit-Out, Finance, Develop, Market,
Operate, Maintain and Manage the Food and Beverage
Outlets at New Domestic Terminal Building (T1), Biju
Patnaik International Airport, Bhubaneswar", i.e., the
Master Concession for F&B facility at Bhubaneswar
Airport. The said bid was of two parts, i.e., technical bid
and financial bid. It was provided that the financial bids of
those bidders, whose technical bids were qualified, would
only be opened. Pursuant to the RFP, the Petitioner
participated by submitting duly filled in tender documents,
along with the financial bid. As per the RFP, the last date
for submission of bids was 12.03.2021 (6:30 pm) and the
Petitioner submitted its bid on the very same day at 3:38
pm.
2.1 On 31.03.2021, a technical evaluation summary
was uploaded on the Government E-Procurement Website,
in terms of which the Petitioner was called upon to fulfill
certain requirements. In compliance thereto, Petitioner
submitted the requisite documents, but where no
documents were available or where the Petitioner had
already replied, by writing 'NA' in the corresponding
column. Despite submission of all documents, on the E-
Procurement Website, the Petitioner's bid was shown as
rejected, but no communication was received by the
Petitioner with regard to rejection of its technical bid. After
seeing the E-Procurement Website and knowing the fact
that its technical bid was rejected, the Petitioner wrote a
letter on 14.04.2021 to Opposite Party No. 2 stating that it
had now been unofficially informed that the reason for
rejection was non-submission of details and documents
regarding domestic and international brands.
2.2 On 17.04.2021, in response to the letter dated
14.04.2021, a communication was issued by Opposite
Parties No.1 and 2 that the Petitioner was technically
disqualified. In response to the same, the Petitioner sent
another letter to Opposite Party No.2 on 19.04.2021
clarifying that it had submitted its technical bid with all
supporting documents as per clause 2.13.6 (b) of the RFP
and requested to review the decision of technically
disqualification of the Petitioner. On 28.04.2021, Opposite
Party No. 2 provided a point-wise rebuttal to the
submission made by the Petitioner, wherefrom the reasons
for rejection of the technical bid were transpired. Having
not satisfied with the reasons mentioned therein, on
05.05.2021, the Petitioner once again wrote a letter to
Opposite Party No. 2 to reconsider the decision giving a
point-wise response to the contents of the letter dated
28.04.2021. But no response to the letter dated
05.05.2021 was received. On the other hand, Opposite
Party No.3 was issued with a letter of intent awarding the
contract for the work "Concession to Design, Fit-Out,
Finance, Develop, Market, Operate, Maintain and Manage
the Food and Beverage Outlets at New Domestic Terminal
Building (TI), Biju Patnaik International Airport,
Bhubaneswar" vide letter dated 21.05.2021. Hence, this
writ petition.
3. Mr. Ashish Mohan, learned counsel appearing
along with Mr. Lingaraj Sarangi, learned counsel for the
Petitioner vehemently contended that Opposite Parties No.
1 and 2 have arbitrarily and erroneously rejected the bid of
the Petitioner submitted in response to the Tender ID NO.
2021_ AAI_ 70823_1-RFP on the ground of shortfall in the
requisite documents to be submitted with the tender and
thus the tender was technically non-compliant. Therefore,
such rejection of the technical bid is patently arbitrary and
based on without any reason and application of mind and,
therefore, contended that the reason so assigned, that
while submitting the Technical Form-4 details as per the
Instruction-2 Format for certificate from Statutory
Auditor/ Company Secretary regarding affiliate not
submitted, cannot germane to issue, in view of the fact
that the Technical Form-4 has been scored out by the
Petitioner while submitting its bid, as the contents thereof
are inapplicable to the Petitioner. Instruction-2 which is
the basis of rejection of the Petitioner's bid provides for
furnishing a certificate from the Statutory Auditor/
Company Secretary certifying that a certain percentage of
equity is held by one bidder in another which may
constitute its affiliate for purposes of Clause 2.1.1. of the
RFP. The form is required to be submitted where one
bidder holds equity in another bidder. As the Petitioner
holds no equity in any of the other bidders, and prior to
submission of the bid would not even know who the other
prospective bidders are, therefore, the form was not
required to be submitted by the Petitioner at all.
3.1 It is further contended that while submitting the
proposed capital expenditure as per Technical Form-7, the
Petitioner was required to submit the list of equipments
planned for the site and as the Petitioner failed to submit
such a list of equipment as per the Instructions, its
Technical Bid has been held to be non-compliant. To this
second reason of rejection, it is submitted that Form-7
required bidders to submit the capital expenditure to be
made at site, which had to in any case be more than Rs.
20,000/- per sq. mt. Accordingly, the Petitioner submitted
a proposed capital expenditure of Rs. 20,500/- per sq. mt,
which is evident from the said clause itself. Therefore,
there is no requirement to provide complete list of
equipment planned for the site. Instructions only require
submission of list of equipment planned for movement of
equipments/goods within the Airport in accordance with
such movement of equipment/goods strategy as may be
directed by the Authority.
3.2 With regard to submission of brand details as
per Technical Form-5, it is stated that the Petitioner had
not submitted the details of brands, i.e., documentary
evidence in support of Information regarding ownership,
registration as trademark etc. in accordance with
Instruction-2 and, therefore, the bid is technically non-
compliant. It is contended that this ground of rejection is
also baseless and without any substance whatsoever. On
perusal of the of Technical Form-5, as submitted by the
Petitioner, it would be seen that the Petitioner has stated
'NA', i.e. Not Applicable, in response to the details of
brands, details of registration as a trademark/trade name,
details of franchisee/license holder of the brand, if any,
and details of the MOU between bidder and legal
owner/franchisee/ license holder of the brand. Since the
Petitioner had submitted 'NA' in the corresponding
column, there was obviously no question of providing
documentary evidence in support of the details of each
brand. Therefore, rejection of the bid of the Petitioner on
technical ground is arbitrary irrational and violative of
Article 14 of the Constitution of India.
3.3 It is further contended that out of total four
bidders, three were technically disqualified and, thereby,
leaving the tender to be automatically awarded to Opposite
Party No.3 itself casts considerable doubt on the tender
process and it appears that the authorities have acted with
a predisposed mind to award the tender in favour of
Opposite Party No.3. Awarding of tender to Opposite Party
No.3 in such circumstances is not only anti-competitive
but also results in a loss to the Opposite Party-Authorities,
inasmuch as the financial bids of other bidders may have
brought more revenue to them and, therefore, contended
that the rejection of the technical bid, vide letter dated
17.04.2021, and reasons communicated, vide letter dated
28.04.2021, under Annexure-2 series and consequentially
the award of tender in favour of Opposite Party No.3, vide
Annexure-1 dated 21.05.2021, cannot sustain in the eye of
law and the same are liable to be set aside.
To substantiate his contention, learned counsel
for the Petitioner has placed reliance on Poddar Steel
Corporation v. Ganesh Engineering Works & Ors,
(1991) 3 SCC 273 : AIR 1991 SCC 1579 and Rashmi
Metaliks Ltd and Others v. Kolkata Metropolitan
Development Authority and Ors, 2013 (10) SCC 95.
4. Mr. S.P. Mishra, learned Senior Counsel
appearing along with Mr. G. Madani, learned counsel for
Opposite Parties No.1 and 2, while justifying the reasons
for rejection of technical bid of the Petitioner, vehemently
contended that the contentions raised by learned counsel
for the petitioner suffers from misrepresentation of facts
and the grounds of rejection of technical bid of the
Petitioner are well justified and the Petitioner's technical
bid has been rejected in terms of the RFP and the
subsequent justification made in course of argument
cannot have any benefit to the Petitioner because the
documents filed by the Petitioner speak for themselves as
the same were not adhered to the requirements of the
tender documents and after due application of mind, the
Authorities have rejected the technical bid and, thereby, no
illegality or irregularity has been committed in rejecting the
technical bid of the Petitioner. It is further contended that
in spite of opportunity being given to the Petitioner calling
upon him to furnish certain documents, the Petitioner
having not complied the same, even not intimating the
Authorities the reasons for non-supply of such documents,
subsequently he cannot turn around and contend that its
technical bid should have been accepted and, as such, the
contention so made is fallacious. Consequently, the
Opposite Party-Authorities are well justified in rejecting the
technical bid submitted by the Petitioner. It is further
contended that the reasons assigned for rejection of
technical bid of the Petitioner are well justified and the
same do not require interference by this Court at this
stage. He also distinguished the judgment cited by the
Petitioner in Poddar Steel (supra) as not applicable to the
present context.
In support of his contention, learned Senior
Counsel appearing for Opposite Parties No.1 and 2 has
placed reliance on the cases of M/s Utkal Suppliers v. M/s
Maa Kanak Durga Enterprises, 2021 (II) OLR (SC) 168;
Montecarlo Ltd. v. NTPC Ltd, (2016) 16 SCC 272;
Caretel Infotech Ltd., v. Hindustan Petroleum Corpn
Ltd., (2019) 14 SCC 81; Silppi Constructions
Contractors v. Union of India, 2019 SCC OnLine SC
1133; State of Madhya Pradesh v. U.P. State Bridge
Corporation Ltd., 2020 SCC OnLine SC 1001; Meerut
Development Authority v. Association of Management
Studies, (2009) 6 SCC 171; Directorate of Education &
Ors v. Educomp Datamatics Ltd., (2004) 4 SCC 19; and
Monarch Infrastructure (P) Ltd v. Commissioner,
Ulhasnagar Municipal Corporation, (2000) 5 SCC 287.
5. Mr. L. Samantaray, learned counsel appearing
along with Mr. Pratik Dash, learned counsel for the
Opposite Party No.3 contended that the Petitioner having
participated in the process of bid and having not come out
successful in technical bid, cannot and could not have
approached this Court by filing the present writ petition. It
is further contended that the parties are bound by the
terms and conditions of the tender documents. If for non-
compliance of any of the conditions of the tender
documents, the bid has been rejected, in that case, the
Petitioner should not invoked the jurisdiction under Article
226 of the Constitution of India. More so, the letter of
intent to award the work having been issued in favour of
the Petitioner on 21.05.2021, Opposite Party No.3 has not
been able to operate the work due to the interim order
passed by this Court. Consequently, Opposite Party No.3
has sustained a huge loss and the same should be
compensated by the Petitioner. It is further contented that
the Petitioner having not come to the Court with clean
hands and for filing this frivolous petition, the same
should have been dismissed with heavy cost. The Opposite
Party No.3, having satisfied all the terms and conditions of
the RFP, has been awarded with the work and he is duty
bound to proceed with the work, as per letter of intent to
award the work issued in its favour. More so, it is further
contended that Opposite Party No.3 operating the travel
food and beverage industry since 2009 and also
concession for food and beverage outlets at Mumbai
Airport since 2009 till date and also at Goa Airport since
2018. Now, it is operating master concession for food and
beverage at Kolkata and Chennai Airports, which Airports
are operated and managed by Opposite Party No.1. The
subsidiaries of Opposite Party No.3 also engaged in food
and beverage outlets at Delhi Airport. Additionally, it also
engaged in operating Airlines 1st Class and Business
Lounges in Mumbai Airport, Bangalore Airport and
presently approximately 300 food and beverage outlets at
various travel related locations are operating. Therefore, it
has got tremendous experience. Taking into consideration
the same and in compliance of the conditions stipulated in
tender documents if the letter of intent has been issued in
favour of Opposite Party No.3 vide Annexure-1 dated
21.05.2021, it cannot be said that the same is arbitrary,
unreasonable and contrary to the provisions of law so as to
call for interference by this Court in exercise of
extraordinary jurisdiction under Articles 226 and 227 of
the Constitution of India.
To substantiate his contention, reliance has
been placed on Galaxy Transport Agencies,
Contractors, Traders, Transports and Suppliers v.
New J.K. Roadways, Fleet Owners and Transport
Contractors, 2020 SCC OnLine SC 1035; Afcons
Infrastructure Ltd. v. Nagpur Metro Rail Corporation
Ltd, (2016) 16 SCC 818: 2016 SCC OnLine SC 940 and
Bharat Coking Coal Limited v. AMR Dev Prabha, (2020)
16 SCC 759: 2020 SCC OnLine SC 335.
6. This Court heard Mr. Ashish Mohan, learned
counsel appearing for the Petitioner; Mr. S.P. Mishra,
learned Senior Counsel appearing along with Mr. G.
Madani, learned counsel for Opposite Parties No. 1 and 2;
and Mr. L. Samantaray, learned counsel appearing for
Opposite Party No.3 by hybrid mode, and perused the
record. Pleadings having been exchanged between the
parties, with the consent of learned Counsel for the parties
this writ petition is being disposed of finally at the stage of
admission.
7. For just and proper adjudication of the case, the
relevant provisions of the RFP for the work "Concession to
Design, Fit-Out, Finance, Develop, Market, Operate,
Maintain and Manage the Food and Beverage Outlets at
New Domestic Terminal Building (T1), Biju Patnaik
International Airport, Bhubaneswar" in E-Bid No. (Tender
ID No): 2021_AAI_70823_1 are quoted below:-
"DEFINITIONS AND INTERPRETATIONS
xxx xxx xxx
"Affiliate" means, in relation to any Bidder or
Member, a person who controls, is controlled by, or is
under the common control with such Bidder or
Member. As used in this definition, the expression
"control" means: (a) with respect to a company,
corporation or limited liability partnership the
ownership, directly or indirectly, of more than 50%
(fifty percent) of the economic or voting rights of such
person, or (b) with respect to a person which is not a
company, corporation or limited liability partnership,
the power to direct the management and policies of
such Person.
"Authority" shall mean the Airports Authority of India
constituted under Airports Authority of India Act,
1994, including any amendment / re-enactment
thereof.
"BCAS" shall mean Bureau of Civil Aviation Security
and its branch offices having jurisdiction over Airport
of Concession.
"Bid" shall mean the technical and financial offer to be
submitted by a Bidder pursuant to this Request for
Proposal (RFP).
"Bid Due Date" shall have the meaning ascribed to the
term in Clause 1.2.5 of this RFP.
"Bid Process" shall mean the bidding and selection
process as detailed in this RFP.
"Bid Validity Period" shall have the meaning ascribed
to the term in Clause 1.4.1 of this RFP.
"Bidder" shall mean a sole entity or a Consortium of
entities, submitting a Bid pursuant to this RFP.
"Bidding Documents" shall mean a collective
reference to this RFP including any modifications,
addendums, corrigendum, alterations, amendments
and clarifications to the RFP, the draft Concession
Agreement, and all other agreements and documents
executed between the Authority and the
Concessionaire from time to time, in relation to the
Concession and shall include any guarantees and
undertakings executed in favour of the Authority in
relation to this Concession.
"Brand" shall mean a type of product manufactured by
a particular company under a particular name or a
distinguishing symbol, mark, logo, name, word,
sentence or a combination of these items that
companies use to distinguish their product from
others in the market and for legal protection is
registered as trademark. "Branded" shall have a
corresponding meaning."
"CHAPTER-2-INSTRUCTIONS TO BIDDERS
xxx xxx xxx
2.1. Eligibility of Bidders
2.1.1. For determining the eligibility of Bidders for
their short-listing hereunder, the following shall apply:
(a) The Bidder may be a single entity or a
Consortium of up to three (3) entities coming
together to implement the Concession. However, no
Bidder applying individually or as a member of a
Consortium, as the case may be, can be Member of
another Bidder. The term Bidder used herein would
apply to both a single entity and a Consortium.
(b) A Bidder may be a natural person, a legal entity
or any combination of them with a formal intent to
enter into an agreement or under an existing
agreement to form a Consortium. A Consortium
shall be eligible for consideration subject to the
conditions set out in RFP. However, no Bidder
applying individually or as a Member of a
Consortium, as the case may be, can be Member of
another Bidder. The term Bidder used herein would
apply to both a single entity and a Consortium. A
Consortium shall be eligible for consideration
subject to the conditions set out in Clause 2.2.9
below;
(c) A Bidder shall not have a conflict of interest
(the "Conflict of Interest") that affects the Bidding
Process. Any Bidder found to have a Conflict of
Interest shall be disqualified. A Bidder shall be
deemed to have a Conflict of Interest affecting the
Ridding Process. if:
i) the Bidder, or its Affiliate (or any constituent
thereof) and any other Bidder or any Affiliate
thereof (or any constituent thereof) have common
controlling shareholders or other ownership
interest:
Provided that this disqualification shall not apply in
cases where the direct or indirect shareholding of a
Bidder, its Member or an Affiliate thereof (or any
shareholder thereof having a shareholding of more
than 20% (twenty percent) of the aggregate issued,
subscribed and paid up share capital of such
Bidder, Member or Affiliate, (as the case may be) in
the other Bidder, its Member or an Affiliate is less
than 20% (twenty percent) of the aggregate issued,
subscribed and paid up equity share capital
thereof; provided further that this disqualification
shall not apply to any ownership by the Authority,
a bank, insurance company, pension fund or a
public financial institution referred to in Section
2(72) of the Companies Act, 2013;
For the purposes of this Clause 2.1.1, indirect
shareholding held through 1 (one) or more
intermediate persons shall be computed as follows:
(A) where any intermediary is controlled by a
person through management control or otherwise,
the entire shareholding held by such controlled
intermediary in any other person (the "Subject
Person") shall be taken into account for computing
the shareholding of such controlling person in the
Subject Person; and (B) subject always to sub-
clause (A) above, where a person does not exercise
control over an intermediary, which has
shareholding in the Subject Person, the
computation of indirect shareholding of such
person in the Subject Person shall be undertaken
on a proportionate basis; provided, however, that
no such shareholding shall be reckoned under this
sub-clause if the shareholding of such person in
the intermediary is less than 26% (twenty six
percent) of the aggregate issued, subscribed and
paid up equity shareholding of such intermediary;
or
ii) a Bidder/ nominated entity has nominated the
same nominated entity or nominated personnel as
another Bidder; or
iii) a constituent of such Bidder is also a
constituent of another Bidder; or
iv) such Bidder or any Affiliate thereof receives, has
received, or has entered into an agreement to
receive, any direct or indirect subsidy, grant,
concessional loan, or subordinated debt from any
other Bidder, or any Affiliate thereof or has
provided or has entered into an agreement to
provide any such subsidy, grant, concessional loan
or subordinated debt to any other Bidder, its
Member or any Affiliate thereof; or
v) such Bidder has the same legal representative for
purposes of a Bid as any other Bidder; or
vi) such Bidder or any Affiliate thereof, has a
relationship with another Bidder or any Affiliate
thereof, directly or indirectly or through a common
third party/ parties, that puts either or both of
them in a position to have access to each other's
information, or to influence the Bid of either or
each other; or such Bidder or any Affiliate thereof,
has participated as a consultant to the Authority in
the preparation of any documents, design or
technical specifications of the Project. Explanation:
In case a Bidder is a Consortium, then the term
Bidder as used in this Clause 2.1.1 shall include
each Member of such Consortium and the term
Affiliate with respect to a Bidder shall include an
Affiliate of each Member of that Consortium."
xxx xxx xxx
"2.1.4
xxx xxx xxx
II. Requirement to submit undertaking for branded
outlets- The Bidder shall submit an undertaking, in
the format provided in Technical Form-1 of
Appendix-I,to submit binding MoUs / agreements
signed with Brand owners within the Business
Incubation Period, as per the table below:
Airport category Minimum number of
Brands
Category A (4 to 12 At least 2
million passengers per Internationally Branded
annum) Outlet and 1 Nationally
Branded Outlet
Category B (2 to 4 At least I Internationally
million passengers per Branded Outlet and 1
annum) Nationally Branded
Outlet
Category C (1 to 2 At least I Internationally
million passengers per Branded Outlet and 1
annum) Nationally Branded
Outlet
In case the Airport moves to a higher category, such
as from category C to category AB or from category
B to category A as per AAI's classification, the
Authority may require the Concessionaire to comply
with the requirement applicable to the higher
category."
"APPENDIX-1-BID DOCUMENTS
xxx xxx xxx
6. I/we declare that
xxx xxx xxx
f) I/ We hereby undertake to produce binding
MOUs / agreements signed with Brand owners,
within 30 days of issue of LOIA, as per the table
below:
Airport category Minimum number of
Brands
Category A (4 to 12 At least 2
million passengers per Internationally Branded
annum) Outlet and 1 Nationally
Branded Outlet
Category B (2 to 4 At least I Internationally
million passengers per Branded Outlet and 1
annum) Nationally Branded
Outlet
Category C (1 to 2 At least I Internationally
million passengers per Branded Outlet and 1
annum) Nationally Branded
Outlet
Any delay in producing the required MoUs /
agreements shall attract damages at the rate of
Rs.5,000/- per day of delay, as provided in Clause
4.1.1 of this RFP. The branded outlet(s) in respect
of which signed MOUs/ agreements were
submitted, need to be operated by the
Concessionaire during at least 75% of the
Concession Term.
In case the Airport moves to a higher category, such
as from category C to category A/B or from category
B to category A as per AAI's classification, I/we
shall comply with the requirement applicable to the
higher category;
g) I/ We hereby agree to pay damages at the
rate of INR 5,000 per day of delay in case of failure
to produce MoUs / agreements with Brand owners
within 30 days of issue of LOIA as per Clause 6. f)
above; and
h) I/ We hereby agree that in case of failure to
produce binding MOUs / agreements within the
Business Incubation Period, the LOIA shall
automatically stand cancelled without any further
reference. I/ We agree and undertake that I/ We
shall not make any claim to the Authority in this
regard. The Authority shall be free to debar me/ us
as per the terms and conditions of the RFP."
"TECHNICAL FORM-4
xxx xxx xxx
2. Format for certificate from Statutory
Auditor/Company Secretary regarding Affiliate:
Certificate from Statutory Auditor/Company
Secretary regarding Affiliate
Based on the authenticated record of the Company,
this is to certify that _______________ of the
subscribed and paid up voting equity of
......................(name of the Bidder/ Lead Member/
Affiliate) is held, directly or indirectly,
by...................(name of Affiliate/ Bidder/ Lead
Member). By virtue of the aforesaid share-holding,
the latter exercises control over the former, who is an
Affiliate as per Clause 2.1.1 of the RFP.
A brief description of the said equity held, directly or
indirectly, is given below:
{Describe the share-holding of the Bidder/ Lead
Member and the Affiliate. In the event the Affiliate is
under common control with the Bidder/ Lead
Member, the relationship may be suitably described
and similarly certified herein }
Name of the audit firm:
Seal of the audit firm: (Signature, Name and
Date Designation of the
authorized signatory."
"TECHNICAL FORM-5
2. Documentary evidence in support of the
information regarding ownership, registration as
trademark, etc. should be furnished for each Brand.
"TECHNICAL FORM-7
Instructions:
1. Along with the proposed capital expenditure, the
Bidder shall furnish to Authority as part of its Bid, a
list of equipment planned for the site including but not
restricted to forklifts, trolleys etc, for the movement of
equipment/goods within the airport in accordance
with such movement of equipment/goods strategy as
may be directed by Authority. The Bidder shall be
responsible for procurement, operations and
maintenance of the equipment. Any vehicle used
within the terminal must be battery operated only."
8. In view of the above provisions contained in the
RFP, now, it is profitable to refer to the grounds of
rejection of technical bid, which have been communicated
to the Petitioner vide letter dated 28.04.2021 under
Annexure-2 series:-
"This has reference to your letter dated 19.04.2021
regarding the aforementioned subject. The documents
submitted by you on CPP under shortfall were
evaluated. The documents submitted outside CPP
Portal after the call for shortfall documents cannot be
evaluated. As per the evaluation of the shortfall
documents the point wise reply to the claims by M/s
Arron Food Services Pvt. Ltd is appended below:-
S. Documents Action by Remar Remarks/Observations
No requested AFS on ks by by AAI BPI Airport,
under shortfall Shortfall AFS Bhubaneswar
claimed
by AFS
1. Technical Form Uploaded Copy Only Undertaking as per
4-format for on Portal Enclos Instruction 4 submitted
Technical ed as per format. Details as
Capacity of the per the Instruction 2
Bidder with Format for certificate
Annual Report from Statutory
for 2019-20 Auditor/Company
Secretary regarding
Affiliated not submitted.
2. Information Uploaded Copy Submitted as requested
under point No. on Portal Enclos
8 of Technical ed
Form 2
3. NOTARIZED Uploaded Copy NOTARIZED copy
copy of notarized Enclos Submitted as requested
Technical Form copy on ed
12 Portal
4. Notarized copy Uploaded Copy NOTARIZED copy of
of Technical notarized Enclos Technical Form 17 and
Form 17 and copy on ed Documents of
Documents of Portal incorporation Submitted
Incorporation as requested.
along with
details Arron
Food Services
and Aroon
Aviation
5. Proposed Uploaded Copy The list of equipment
capital on Portal enclose planned for the site as
expenditure d per the Instructions not
along with list submitted
of equipment
planned for the
site may be
submitted as
per the
Technical Form
6. Brand Details Uploaded Copy As per Instruction 2, the
as per on Portal enclose details of brands i.e.
Technical Form d Documentary evidence
5 and Technical in support of the
Form 6 information regarding
ownership, registration
as trademark, etc. not
submitted.
This is for your information please.
Yours sincerely,
Manager (Commercial)
For Airport Director."
Though the aforesaid table indicates that while adjudging
the technical bid, six criteria had been followed, but
effectively the technical bid of the Petitioner has been
rejected on the grounds mentioned at Sl. Nos. 1, 5 and 6
and the shortfall of the documents required thereunder, as
is evident from the remarks/observations made by AAI BPI
Airport, Bhubaneswar in the last column itself.
9. The first ground of rejection of technical bid is
that while submitting Technical Form No.4, details as per
Instruction-2 Format for certificate from Statutory
Auditor/Company Secretary regarding Affiliate were not
furnished. The word 'Affiliate' has been defined in the RFP,
as has been quoted above. After going through the same, it
is evident that the word 'Affiliate' has been defined to mean
that any Bidder or Member, a person who controls, is
controlled by, or is under the common control with such
Bidder or Member. As used in this definition, the
expression "control" means: (a) with respect to a company,
corporation or limited liability partnership the ownership,
directly or indirectly, of more than 50% (fifty percent) of
the economic or voting rights of such person. But fact
remains, the Technical Form No.4 has been scored out by
the Petitioner while submitting its bid, as the context
thereof is inapplicable to the Petitioner.
Furthermore, Instruction-2, which is the basis
of rejection of the Petitioner's bid, provides for certificate
from Statutory Auditor/Company Secretary certifying that
a certain percentage of equity is held by one bidder in
another which may constitute its affiliate for purposes of
clause-2.1.1 of the RFP. As the Petitioner holds no equity
in any of the other bidder and prior to submission of its
bid it was not practicable on the part of the Petitioner to
even know who the other prospective bidders are,
therefore, the form was not required to be submitted by
the Petitioner.
10. It may be noted that the term of the Concession,
as per the RFP, which has been placed on record as
Annexure-3 to the writ petition at Page 41 to 268, is for a
period of seven years. Clause-1.2.5 of the RFP speaks
about the submission of documents, which read thus:-
"All Bids shall be prepared and submitted in
accordance with the terms of the Bidding documents
on or before the date specified in clause No.1.6 of
this RPF (the Bid Due Date)."
As per the aforementioned clause, the bidder, along with
its bid, shall enclose all necessary documents, certificates,
undertakings in the prescribed form strictly in accordance
with the RFP. The technical bid including the materials
evidencing the technical capacity and financial capacity
should be furnished through online in the prescribed
formats under Appendix-1.
11. Clause-2.13.6 of the RFP, as available at Page-
75 of the writ petition, provides that the technical bid shall
contain following documents:-
"Clause-2.13.6, the Technical bid shall contain-
(a) Index of submission
(b) Bid in the prescribed format along with all
annexures and supporting documents including
those as per technical form-1, technical form-2,
technical form-3, technical form-4, technical form-5,
technical form-6, technical form-7, technical form-8,
technical form-9, technical form-10 and technical
form-11 of Appendix1 (Bid documents).
(c) Statement of legal capacity as per technical form-
12 of Appendix-1.
(d) Power of Attorney for signing bid as per technical
form-13 of Appendix-I.
(e) If applicable, the power of Attorney for the lead
member of Consortium as per technical form-14 of
Appendix-I.
(f) Copy of the joint bidding agreement, in case of
Consortium, substantially as per the technical form-
15 of the Appendix-I.
(g) Affidavit as per the technical form-16 of
Appendix-1.
(h) Integrity Pact as per technical form-17 of the
Appendix-1.
(i) Documents of incorporation (in case of
consortium, for all members) duly notarized.
(j) Copy of PAN Card, copy of memorandum and
articles of Association, if the bidder is a body
Corporate, and if a partnership, then a copy of the
partnership deed (in case of consortium for all
members).
(k) Copies of bidder's duly audited balance sheet
and profit and loss account for the preceding
financial year and for the years for which experience
under clause 2.1.4 of the RFP has been claimed.
(l) Self-attested copy of proof of payment of Earnest
Money Deposit.
(m) Self-attested copy of proof of payment for
purchase of Tender Documents.
(n) Checklist of submission as per technical form-18
of Appendix-1."
A corrigendum was issued, by which the bidders were
permitted to submit "Self-declaration/Self Certification" in
lieu of "Affidavit" as per Technical Form-16.
12. Under clauses-2.13.7, 2.13.8 and 2.14 of the
RFP instructions were issued to the bidders as to how the
documents of the technical bid were to be serially arranged
and page marked and the due date of submission of the
bid. For better appreciation, the said clauses are quoted
hereunder:-
"Clause No.2.13.7 of the RFP
The bidders are advised to arrange the
submissions/documents in the above order. Each
page of the technical bid is to be serially numbered,
signed and stamped by the authorized signatory of
the bidder."
Clause No. 2.13.8
All pages of the technical bid shall be typed or
written in indelible ink and signed by the authorized
signatory of the bidder who shall also initial each
page in blue ink and stamp all pages. All the
alteration, omission, additional or any other
amendments made to the bid shall be initialed by
the person(s) signing the bid.
Clause No.2.14
Bid due date:
Bids should be submitted before 12.03.2021, 1600
hours IST on the Bid Due Date."
13. On 15.03.2021, i.e., the date of opening of
technical bid, the Constituted Committee of Airport
Authority of India opened the technical bid of the
bidders/participants and observed that five bidders had
participated in the tender process, namely, (i) M/s Aroon
Food Services Private Limited, (ii) M/s Travel Food Services
Private Limited, (iii) M/s Saptagiri Restaurant Private
Limited, (iv) M/s Oynx Management Services Private
Limited, and (v) M/s Arvind Enterprises. Out of five
participants/bidders, it was observed that the bids of the
bidders/participants, namely, M/s Oynx Management
Services Pvt. Ltd. and M/s Arvind Enterprises were failed
in the test of responsiveness, as per Clause-3.2.1 and,
therefore, the said two bidders were rejected. That is to
say, M/s Oynx Management Services Pvt. Ltd. did not
submit the Earnest Money Deposit and M/s Arvind
Enterprises also did not submit the Earnest Money Deposit
as well as the cost of RFP document. Therefore, the tender
committee evaluated the technical bid of the rest three
bidders/participants, namely, the Petitioner, Opposite
Party No.3 and M/s Saptagiri Restaurant Private Limited.
As the committee observed shortfall of necessary
documents, as per Clause-3.3.3 of the RFP, an opportunity
was given to three bidders to furnish the requisite
documents by giving them a shortfall notice on
31.03.2021.
14. For better appreciation, Clause-3.3.3 of the RFP,
which deals with evaluation of technical bid, is extracted
hereunder:-
"Authority reserves the right to seek clarifications or
additional information/documents from any bidder
regarding its bid. Such clarification (s) for additional
information/document(s) shall be provided within the
time specified by Authority for the purpose. Any
request and response thereto shall be in writing. If the
bidder does not furnish clarification(s) or additional
information/document(s) within the prescribed time,
the bid shall be liable to be rejected. In case the bid is
not rejected, Authority may, proceed to evaluate the
bid by construing the particulars requiring the
clarification to the best of its understanding, and the
bidder shall be barred from subsequently questioning
such interpretation of Authority."
15. Invoking the aforesaid clause, the Petitioner was
also directed, by means of the shortfall notice dated
31.03.2021, to submit the required documents by 6.00
P.M. of 05.04.2021. The details of the shortfall documents,
which the Petitioner was asked to comply, are as follows:-
"i) Technical Form-4 - format for technical capacity
and financial capacity of the bidder with annual report
for 2019-20.
ii) Information under point No.8 of technical form-2.
iii) Notarized copy of the technical form-12 and
technical form-17 and documents of incorporation
along with details of relation between Aroon Food
Services Private Limited and Aroon Aviation.
iv) Proposed capital expenditure along with list of
equipment planned for the site as per technical form-7.
v) Brand details as per technical form-5 and technical
form-6."
16. In response to the letter dated 31.03.2021, the
Petitioner submitted the documents on 05.04.2021 at
1506 hours to the following effect:-
"i) Technical Form-4 format for technical capacity and
financial capacity of the bidder with annual report for
2019-20. Here the information under clause(2) format
for certificate from statutory auditor/company
secretary regarding affiliate not provided/submitted in
the prescribed format of RFP. The Petitioner had
altered the prescribed format, and suppressed the
information required in Clause-3 of the technical form-
4.
ii) Information under point No.8 of the technical form-2
duly submitted.
iii) Notarized copy of the technical form-12, technical
form-17 and documents of incorporation along with
details of relation in between M/s Aroon food services
private limited and M/s Aroon Aviation duly
submitted."
But the Petitioner did not submit the following documents,
which are required as per the RFP, despite shortfall notice
and opportunity of being heard. The same are extracted
hereunder:
"i) The Petitioner had not submitted the proposed
capital expenditure and list of equipment planned for
the site in the prescribed format as per the technical
form-7.
ii) Details of Brands of F&B Items Proposed as per
technical form-5. As per Instruciton-1 of technical form-
5- information in respect of the F&B Brands, proposed
for the concession was not provided. As per
Instruciton-2 Technical form-5, documentary evidence
in support of the information regarding ownership,
registration as trademark etc. had not been submitted.
It is therefore evident that the instructions under
technical form-5 were not carried out by the Petitioner.
The Petitioner in response to the shortfall notice had
submitted that the "Aroon Food Services" is the Brand
name, which cannot be considered as brand in
accordance with interpretation and definition of
"Brand" as per the RFP. The Petitioner had submitted
the documents in "pdf" file name- 'shortfall Doc.
RFPBBSR.pdf" file size-13558 KB. Since the set of
documents have already been annexed to the writ
petition at Annexure-6 series, the same not being filed
in the present affidavit.
iii) Information under para-3 of the technical form-6-3.
Background information of the Proposed Brand(s) was
not submitted by the Petitioner."
17. On 12.04.2021, the technical bids were
evaluated strictly as per Chapter-3 of the RFP, which is
made available at Page-80-81 of the writ petition,
according to which a technical bid shall be considered to
be in compliance with the requirement of the RFP only if-
"a) The bidder demonstrates technical capacity, as
set forth clause-2.1.4 of the RFP;
b) It contains all the information and documents
in support as requested in the RFP."
In the event of non-compliance of the above, as per Clause-
3.3.2, the technical bid is to be rejected. Clause-3.3.2 is
quoted below:
"Such technical bids which are not in compliance with
the requirements of the RFP shall be rejected forthwith
and no request for alteration, modification, substitution
or withdrawal shall be entertained by Authority in
respect of such Bid(s)."
18. After due technical evaluation, on 12.04.2021,
the status position of technical bids of all the bidders was
indicated summarily to the following effect:-
"i) M/s Arvind Enterprises
Bid rejected, because the bidder did not submit
the tender fee and earnest money deposit
ii) M/s Saptagiri Restaurant Private Limited
Bid rejected, because the bidder had not
submitted the requisite documents as per the RFP
even after shortfall notice.
iii) M/s Aroon Food Services Private Limited
Bid rejected, because the bidder had not
submitted the requisite documents as per the RFP
even after shortfall notice.
iv) M/s Oynx Management Services Private
Limited- Bid rejected, because the bidder had not
submitted the earnest money deposit.
v) M/s Travel Food Services Private Limited
All requisite documents as per RFP were
submitted by the bidder, hence, the bidder was
technically qualified."
19. From the above it would be seen that Opposite
Party No.3 was the only qualified bidder at the time of
evaluation of technical bid. Consequentially, the financial
bid of the only qualified bidder was opened on
12.04.2021. As such, the committee determined Opposite
Party No.3 as the successful bidder. Since only one bidder
was qualified, the committee, as per the Delegation of
Power (DoP) of the Airport Authority of India under Point
No.5.4(b), sent the entire proceeding of the bid opening
committee to the Competent Authority, i.e., the Regional
Executive Director, Regional Headquarters, Eastern
Region, Kolkata on 13.04.2021 for perusal of the
proceeding and its approval as per DoP. The competent
authority, in its turn, accorded approval to the proceeding
of the bid opening committee on 17.05.2021, which is in
consonance with Clause-5.4(b), in terms of the DoP as
stated above. Accordingly, the Letter of Intent to award the
work was issued in favour of the Opposite Party No.3.
Though on 19.06.2021, the agreement was executed with
Opposite Party No.3, and on 23.07.2021 sites were
handed over, but because of the interim order passed on
10.08.2021 in I.A. No.10286 of 2021 by this Court,
Opposite Party No.3 could not be able to function there, as
the Petitioner was allowed to continue.
20. Coming to the reasons for disqualifying/
rejecting the technical bid of the Petitioner, the same are
well explained in the order/ letter dated 28.04.2021. The
first ground of rejection is due to non-submission of
Technical Form-4, which refers to the Technical Capacity
(defined under clause-2.1.4 of RFP) and Financial
Capacity (defined under clause-2.1.5 of RFP) of the bidder.
The Technical Form-4 is governed by clause-2.1 of the
RFP which states about 'Eligibility of Bidders". Clause-
2.1.4 refers to Technical Capacity of the Bidder, which
reads as under:-
"2.1.4 - Technical Capacity ("Technical Capacity")-
For demonstrating technical capacity the bidder shall
satisfy the follow criteria:-
I. Experience Criteria - The bidder must fulfill the
condition mentioned in sub-clause A below along with
one of the sub-clauses B(i), B(ii), B(iii), B(iv) and B(v).
A. The bidder (in case of a consortium, the Lead
Member) must individually have two (02) years' of
experience in the Food and Beverage Services business
as on 19.02.2021 in the preceding seven (07) years
20.02.2021 to 19.02.2021.
And
B. The bidder must fulfill at least one of the following
conditions:
B. The bidder must fulfill at least one of the following
conditions:
(i) The bidder (in case of Consortium, the Lead
Member) shall currently be operating at least two (02)
Food & Beverage outlets as on 19.02.2021 out of which
at least one should be located
i. In any Indian airport/International airport
with more than 1 million passenger per annum as on
19.02.2021; or
ii. In other passenger transport terminal such
as, metro rail, metro rail station, railway, railway
station (metro or railway stations must be in cities with
population more than 10 Lacs (as per 2011 census) or
commercial complex (commercial complex should have a
floor plat size of at least 10,000 square meters).
Other outlets can be present at ports, bus stations,
airports, railway stations, hotels, metro stations, roads,
highways, shopping complexes, other commercial
complexes.
Note: A copy of required documentary proof (such as
work order, lecense, etc.) of shops and establishment
Acts, trade tax certificates, etc. for each outlet and proof
of completion of tenure of two (02) years shall be
submitted for verification.
(ii) The bidder (in case of consortium, the Lead
Member) shall currently be operating a hotel rated at
least three star or be of heritage category as per Hotel
and Restaurant Approval and Classification Category
(HRACC), Ministry of Tourism, Government of India
with at least two (02) years of experience.
The copy of Hotel and Restaurant Approval and
Classification Committee (HRACC) document for
verifying the star rating and proof of completion of
requisite tenure of two (02) years shall be submitted for
verification.
In case the hotel is not HRACC certified, then the hotel
should have all of the following facilities-
Coffee shop operating at least 16 hours per day
Standalone restaurant
Minimum 80 rooms
Swimming Pool
The above are to be duly supported with relevant
documents
OR
(iii) The bidder (in case of consortium, the Lead
Member) shall currently be an operator of the food and
beverage business in a three star hotel having valid
star category or heritage category issued by Hotel and
Restaurant Approval and Classification Category
(HRACC), Ministry of Tourism, Government of India
with at least two (02) years of experience.
A copy of work order/license /MoU with the hotel and
proof of completion of tenure of two (02) years shall be
submitted for verification.
OR
(iv) The bidder is currently functioning as a flight
kitchen operator with at least two (2) years' experience
A copy of work order/license/MoU with the airline
company and proof of completion of requisite tenure of
two (02) years shall be attached as proof.
OR
(v) The bidder must have at least two (02) years of
experience in the last seven (7) years in operating and
managing passenger/airline lounge, at an airport.
Following requirements must have been fulfilled by
lounge for which experience is claimed.
i. Lounge should have a minimum area of
seventy (70) square meters and
ii. Lounge should have a minimum seating
capacity of thirty (30) persons.
The validity of the above requirements shall be
determined as per Clause-2.1 of the RFP. Any other
document to support the above claim which is not
included in Clause-2.1 should also be attached.
II. Requirement to submit undertaking for branded
outlets-
The bidder shall submit an undertaking in the format
provided in technical form-I of the Appendix-I to submit
binding MOUs/agreements signed with Brand owners
within the Business Incubation Period, as per the table
below:
Airport Category Minimum number of
Brands
Category A (4 to 12 At least 2 Internationally
million passengers per Branded Outlets and 1
annum Nationally Branded Outlet
Category-B (2 to 4 At least 1 Internationally
million passengers per Branded Outlet and 1
annum Nationally Branded Outlet
Category C (1 to 2 At least 1 Internationally
million passengers per Branded Outlet and 1
annum Nationally Branded Outlet
In case the Airport moves to a higher category, such
as from category C to category A/B or from category B
to category A as per AA's classification, the Authority
may require the Concessionaire to comply with the
requirement applicable to the higher category.
Clause-2.1.5 of the RFP refers to Financial Capacity
and the same reads as follows:-
"Financial Capacity ("Financial Capacity") - For
demonstrating Financial Capacity the Bidder shall
satisfy the following criteria:
The bidder must have minimum annual turnover from
F&B business during two (02) years (for which
technical experience has been claimed) in the last
seven (07) years, in accordance with the audited
financial statements (i.e. profit and loss account and
balance sheet along with schedules) as per the table
below:
Airport Category Minimum number of
Brands
Category A (4 to 12 Five Crore only
million passengers
per annum
Category-B (2 to 4 One Crore only
million passengers
per annum
Category C (1 to 2 One Crore only
million passengers
per annum
For the sake of clarity, Airport categorization as per the
above table will be ascertained for the year preceding
the year of publication of the RFP.
The bidders shall enclose, along with its bid
documents, certificate(s) as per format provided in
technical form-4 of Appendix-I from its Statutory
Auditors reflecting sales turnover of the bidder from the
F&B business in India or overseas, in support of its
claim of meeting the Financial Capacity criteria
required under this Clause-2.1.5. For the purposes of
this RFP, turnover ("Turnover") shall mean the total
revenue earned from sales of F&B products and
services to ultimate consumers, less applicable sales
tax, GST or value added tax."
As the Petitioner had not submitted the Technical Form-4
along with its technical bid, it was instructed to submit
the same in prescribed format vide shortfall notice/letter
dated 31.03.2021. But, the Petitioner submitted the
Technical Form-4 by scoring out the particulars and,
thereby, did not comply with the mandatory eligibility
criteria/requirements as per the RFP.
20.1 However, in the remarks/observations column
of the first ground of rejection a mention has been made
that details, as per the Instruction-2 format for certificate
from Statutory Auditor/Company Secretary regarding
affiliate were not submitted. Instruction-2 under Technical
Form-4 provides the format for certificate from Statutory
Auditor/Company Secretary regarding affiliate. The
Petitioner has not submitted the certificate from Statutory
Auditor/Company Secretary regarding affiliate citing the
following reasons, as is evident from paragraph-6(i) of the
writ petition, which reads thus:-
".......... In the submission of the Petitioner, the
technical form-4 has been scored by the Petitioner
while submitting its bid as the contents thereof are
inapplicable to the Petitioner. Instruction No.2 which
is the basis of rejection of the Petitioner's bid provides
for a certificate from statutory auditor/company
secretary certifying that a certain percentage of equity
is held by one bidder in another which may constitute
its affiliate for purposes of clause-2.1.1 of the RFP.
The form is required to be submitted where one bidder
holds equity in another bidder. However, the
Petitioner holds no equity in any of the other bidders
and prior to submission of the bid would not know
who the other prospective bidders are. Therefore, the
form was not required to be submitted by the
Petitioner at all. Accordingly, rejection of the Petitioner
bid on this ground is absolutely illegal and arbitrary."
20.2. The word 'affiliate' has been defined in the RFP,
as mentioned above. Having regard to the meaning
attached to the word 'affiliate', the Petitioner has
misconstrued the meaning thereof and misconceived the
purport of its requirement and has not submitted the
certificate in the prescribed format, as per Instruction-2
under Technical Form-4. As such, the Petitioner has
candidly admitted that the same was not submitted by the
Petitioner either along with the technical bid or in
pursuance of the shortfall notice wherein opportunity was
given by the Opposite Party-Authorities to reconcile such
shortfall. Thereby, rejection of the Petitioner's technical
bid on this ground cannot be said to be faulted with.
21. The second ground of rejection, as contained in
the impugned letter of rejection dated 28.04.2021, is due
to non-submission of the list of equipments planned for
the site as per Instructions. In terms of the RFP, the
Petitioner was required to furnish Technical Form-7,
which refers to submission/furnishing of information by
the bidders with respect to their proposal on capital
expenditure plan (CAPEX) which has to in any case be
more than Rs.20,000/- per Sq.Mt. and, as it appears, the
Petitioner had not submitted the Technical Form-7 along
with its technical bid. Though Opposite Party-Authorities
in shortfall notice dated 31.03.2021 directed the Petitioner
to rectify the said shortfall documents, but the Technical
Form-7, which has been annexed at Page-382 of the writ
petition does not indicate any amount towards the
Petitioner's proposed CAPEX as per the mandatory
requirement of the said form. Further, the list of
equipments, as required under Instruction-1 of Technical
Form-7, was not submitted by the Petitioner, which is
evident from the records itself. As per Technical Form-7,
the bidders are required to submit a list of equipment
planned for the site for the movement of the
equipment/goods within the airport and that such
movement of the equipment/goods within the airport shall
be as per the direction/strategy of the Authority. The
explanation appended by the Petitioner for not having
submitted a list of equipment(s) in the prescribed format
under Technical Form-7 does not justify the very purport
of the Instructions. Thereby, rejection/ disqualification of
the Petitioner's technical bid on that score is justified.
22. Coming to the next ground of rejection of
technical bid, it relates to non-submission of brand details
as per Technical Form-5. It is stipulated in Technical
Form-5 that the bidders are to mention the details of
brands of F&B items proposed to be sold through their
F&B sales outlets at the Concessioned premises within
the airport. The Petitioner did not submit the list of
brands of F&B items proposed for the Concession along
with its technical bid. On the said non-fulfillment being
pointed out to the Petitioner vide shortfall notice by the
Opposite Party-Authorities, the Petitioner submitted
Technical Form-7, as is evident from Page-383 of the writ
petition, wherein the name of the Petitioner has been
mentioned against "Name of F&B Brand" and the name of
Praveen Kumar Rana towards providing "Details of the
legal owner of the Brand". Though the Petitioner has tried
to justify his stand, but a perusal of Technical Form-5
would show that the Petitioner has stated 'N.A.' i.e., Not
Applicable, in response to the details of registration as a
trademark/trade name, details of franchisee/license
holder of the brand, if any, and details of MOU between
bidder and legal owner/franchisee/license holder of the
brand. The Petitioner has stated that it is not required.
Therefore, rejection of Petitioner's bid cannot be said to be
not justified, because on a bare perusal of the definition of
Brand vis-à-vis Technical Form-5 would show that the
Petitioner ought to have enlisted the Brand Owners' whole
products the Petitioner proposes to sale through its outlet
at the Concessioned premises within the airport by
appending/submitting documentary evidence that would
indicate that the MOU with the Brand Owners shall be to
the effect that if such bidder is selected for the grant of
Concession, the parties to the MOU shall enter into a
binding franchise agreement which shall be co-terminus
with the concession term. Thereby, the rejection of the
technical bid of the Petitioner for non-submission of the
information specified is justified.
23. Mr. Ashish Mohan, learned counsel for the
Petitioner contended that the instructions in Technical
Form-5 mandate the bidders to have MOUs/agreements
executed with the respective F&B and to provide
documentary evidence thereof. The bidders under
Technical Form-4 are made to undertake that in the event
LOIA is issued in their favour, binding MOUs/agreement
signed by such successful bidder with such F&B brands
as disclosed while submitting their bid, to be produced
within 30 days from the issuance of such LOIA. Such
contention of learned counsel for the Petitioner cannot be
sustainable and accordingly the same is rejected.
24. Reliance has been placed by learned counsel for
the Petitioner on Podar Steel Corporation (supra), which
clearly lays down the essential conditions of eligibility and
the others, which are merely ancillary and subsidiary with
the main object to be achieved by the conditions. It is only
first case the authority issuing the tender may be required
to enforce them rigidly and in the other cases, it must be
open to the authority to deviate from and not to insist
upon the strict literal compliance of the condition in the
appropriate cases.
25. In view of the fact that there was no minimum
requirement of the kind of number of equipments planned
for the site for the movement of the equipment/goods in
the tender nor is there any consideration attached to this
planned, as per clause-2.8 of the RFP, which states about
the right of the Airport Authority to accept and reject any
or all bids. Clause-2.8.1 is extracted hereunder:
"2.8.1. Authority reserves the right to verify all
statements, information and documents submitted by
the bidder in response to the RFP or the bidding
documents and the bidder shall, when so required by
the authority, make available all such documents as
may be necessary for such verification. Any such
verification or lack of such verification, by authority
shall not relieve the bidder of its obligations or
liabilities hereunder nor will it affect any rights of
authority thereunder.
2.8.2 - Notwithstanding anything contained in this
RFP, the Authority reserves the right to accept or
reject any Bid and to annul the bidding process and
reject all bids, at any time without any liability or
any obligation for such acceptance, rejection or
annulment, and without assigning any reasons
thereof."
26. Therefore, power has been vested with the
Opposite Parties No.1 and 2 to accept or reject the bid. If
the Petitioner has not qualified in the technical bid, as per
the reasons mentioned above, for having not satisfied the
requirement thereof, it cannot be said that such rejection
of the technical bid of the Petitioner is not justified.
Rather, the Opposite Party-Authorities have acted in
consonance with the terms and conditions of the tender
documents. Thereby, the order rejecting the technical bid
of the Petitioner is well justified.
27. In M/s Utkal Suppliers v. M/s Maa Kanak
Durga Enterprises, 2021 (II) OLR (SC) 168, referring to
earlier judgment of the apex Court in the case of Tata
Cellular v. Union of India, (1994) 6 SCC 651, the apex
Court held as follows:-
"11. This Court has repeatedly held that judicial
review in these matters is equivalent to judicial
restraint in these matters. What is reviewed is not
the decision itself but the manner in which it was
made. The writ court does not have the expertise to
correct such decisions by substituting its own
decision for the decision of the authority. This has
been clearly held in the celebrated case of Tata
Cellular v. Union of India, (1994) 6 SCC 651,
paragraph-94. At paragraph No.12, held as follows:-
"94. The principles deducible from the above are:
(1) The modern trend points to judicial
restraint in administrative action.
(2) The court does not sit as a court of
appeal but merely reviews the manner in
which the decision was made.
(3) The court does not have the expertise
to correct the administrative decision. If a
review of the administrative decision is
permitted it will be substituting its own
decision, without the necessary expertise
which itself may be falible.
(4) The terms of the invitation to tender
cannot be open to judicial scrutiny because
the invitation to tender is in the realm of
contract. Normally speaking, the decision to
accept the tender or award the contract is
reached by process of negotiations through
several tiers. More often than not, such
decisions are made qualitatively by experts.
(5) The Government must have freedom of
contract. In other words, a fair play in the
joints is a necessary concomitant for an
administrative body functioning in an
administrative sphere or quasi
administrative sphere. However, the
decision must not only be tested by the
application or Wednesbury principle of
reasonableness (including its other facts
pointed out above) but must be free from
arbitrariness not affected by bias or
actuated by mala fides.
(6) Quashing decisions may impose
heavy administrative burden on the
administration and lead to increased and
unbudgeted expenditure."
28. In Afcon Infrastructure Ltd. v. Nagpur Metro
Rail Corporation Ltd., (2016) 16 SCC 818, in
paragraphs-14 and 15, the apex Court held as under:-
"14. We must reiterate the words of caution that this
Court has stated right from the time when Ramana
Dayaram Shetty v. International Airport Authority
[Ramana Dayaram Shetty v. International Airport
Authority of India, (1979) 3 SCC 489] was decided
almost 40 years ago, namely, that the words used
in the tender documents cannot be ignored or
treated as redundant or superfluous- they must be
given meaning and their necessary significance. In
this context, the words metro in Clause-4.2 (a) of
Section III of the bid documents and its connotation
in ordinary parlance cannot be overlooked.
15. We may add that the owner of the employer of a
project, having authored the tender documents, is
the best person to understand and appreciate its
requirements and interpret its documents. The
constitutional courts must defer to this
understanding and appreciation of the tender
documents, unless there is mala fide or perversity in
the understanding or appreciation or in the
application of the terms of the tender conditions. It is
possible that the owner or employer may give an
interpretation to the tender documents that is not
acceptable to the constitutional courts but that by
itself is not a reason for interfering with the
interpretation given."
29. The aforesaid settled principle laid down by the
apex Court in Afcon Infrastructure Ltd. (supra) has also
been referred to in subsequent judgments by the apex
Court in the cases of Montecarlo Ltd., Caretel Infotech
Ltd., Silpi Constructions Contractors and U.P. State
Bridge Corporation Ltd. In view of the aforementioned
propositions of law, it remains no more res integra that
Courts must defer to the understanding and appreciation
of the tender documents, as the Petitioner has not alleged
mala fides or perversity in the understanding or
appreciation or in the application of the terms of the
tender condition.
30. In Meerut Development Authority (supra),
while considering the rights of a bidder participating in
the tender process, in paragraphs-26, 27 and 33 of the
said judgment, the apex Court lucidly explained as
under:-
"26. A tender is an offer. It is something which
invites and is communicated to notify acceptance.
Broadly stated it must be unconditional; must be in
the proper form, the person by whom tender is made
must be able to and willing to perform his
obligations. The terms of the invitation to tender
cannot be open to judicial scrutiny because the
invitation to tender is in the realm of contract.
However, a limited judicial review may be available
in cases where it is established that the terms of the
invitation to tender where so tailor-made to suit the
convenience of any particular person with a view to
eliminate all others from participating in the bidding
process.
27. The bidders participating in the tender process
have no other right except the right to equality and
fair treatment in the matter of evaluation of
competitive bids offered by interested persons in
response to notice inviting tenders in a transparent
manner and free from hidden agenda. One cannot
challenge the terms and conditions of the tender
except on the above stated ground, the reason being
the terms of the invitation to tender are in the realm
of the contract. No bidder is entitled as a matter of
right to insist the authority inviting tenders to enter
into further negotiations unless the terms and
conditions of notice so provided for such
negotiations.
xxx xxx xxx
33. ........ Once it is clear that there was no
vagueness, uncertainly or any confusion with regard
to the reserved price there is no scope for any
interference in the matter by this Court. The terms
and conditions of the tender were expressly clear by
which the authority as well as the bidders were
bound and such conditions are not open to judical
scrutiny unless the action of the tendering authority
is found to be malicious and misuse of its statutory
powers."
Such a view has been taken by the apex Court taking into
account the judgments rendered in Tata Cellular,
Cochin International Airport Ltd., Directorate of
Education, Association of Registration of Plates,
Global Energy, and Puravankara Projects Limited
(supra).
31. In Directorate of Education (supra), the apex
Court held that terms of initiation to tender are not open
to judicial scrutiny and the same being in the realm of
contract, Government must have a free hand in setting
the terms of the tender. It must have reasonable play in
its joints as a necessary concomitant for an administrative
body in an administrative sphere. Further, in paragraph-9
of the said judgment, the apex Court held as under:-
"It is well settled now that the courts can scrutinize
the award of the contracts by the government or its
agencies in exercise of its powers of judicial review to
prevent arbitrariness or favoritism. However, there
are inherent limitations in the exercise of the power
of judicial review in such matters."
32. In Monarch Infrastructure (P) Ltd (supra), the
apex Court held that the terms and conditions in the
tender are prescribed by the government bearing in mind
the nature of contract and in such matters the authority
calling for the tender is the best judge to prescribe the
terms and conditions of the tender. It is not for the courts
to say whether the conditions prescribed in the tender
under consideration were better than the one prescribed
in the earlier tender invitations."
33. In Galaxy Transport Agencies, Contractors,
Traders, Transports and Suppliers v. New J.K.
Roadways, Fleet owners and Transport Contractors,
2020 SC Online SC 1035, the apex Court, while
considering the terms and conditions of the contract of
the tender, interpretation and scope thereof in exercise of
power of judicial review held that author of the tender
document is the best person to understand and
appreciate its requirements. Its interpretation should not
be second-guessed by a court in judicial review
proceedings. The interpretation of the tendering authority
in this case cannot be said to be perverse. It is held that
unless arbitrariness or mala fide on the part of the
tendering authority is alleged, the expert evaluation of a
particular tender, particularly when it comes to technical
evaluation, is not to be second-guessed by a writ court.
34. On perusal of the writ petition, it is seen that
nowhere the Petitioner has alleged mala fide against the
Opposite Party-Authorities. So far as arbitrariness is
concerned, though the same has been alleged, but not
demonstrated, as is required to be done, as the Petitioner
has not satisfied the conditions stipulated in the tender
documents. Therefore, in exercise of power of judicial
review, this Court cannot interfere with the reasons
assigned so as to annul the decision taken by the
technical committee in rejecting the technical bid of the
Petitioner.
35. In Bharat Coking Coal Limited v. AMR Dev
Prava and others, (2020) 16 SCC 759 : 2020 SCC Online
SC 335, apex Court held that writs are impermissible
when the allegation is solely with regard to violation of a
contractual right or duty, thus, the persons seeking writ
relief must also actively satisfy the Court that the right it
is seeking is one in pubic law. Further, it is imperative
that in addition to arbitrariness, illegality or
discrimination under Article 14 or encroachment of
freedom under Article 19 (1) (g), public interest too is
demonstrated before remedy is sought, though the
threshold for the latter need not be high.
36. In view of the facts and law, as discussed
above, this Court does not find any material to interfere
with the reasons assigned in rejecting the bid (technical
bid) of the Petitioner submitted, pursuant to E-Bid No.
(Tender ID No): 2021_ AAI_70823_1- RFP for the work
"Concession to Design, Fit-Out, Finance, Develop, Market,
Operate, Maintain and Manage the Food and Beverage
Outlets at New Domestic Terminal Building (T1), Biju
Patnaik International Airport, Bhubaneswar".
37. In the result, while holding that the
letters/orders dated 17.04.2021 and 28.04.2021 under
Annexure-2 series rejecting the technical bid of the
Petitioner, and consequential letter dated 21.05.2021
under Annexure-1 awarding the work in favour of
Opposite Party No.3, as well justified, the writ petition is
dismissed being devoid of merits. The parties are directed
to bear their own costs.
38. With the dismissal of the writ petition, the
interim order passed on 10.08.2021 in I.A. No. 10286 of
2021 stands vacated.
..............................
DR. B.R. SARANGI,
JUDGE
G. SATAPATHY, J. I agree.
..............................
G. SATAPATHY,
JUDGE
Orissa High Court, Cuttack
The 6th September, 2022, Arun/Ashok/GDS
