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$-11 & 12 HIGH COURT OF DELHI
W.P.(C) 6562/2013 & CM 14288/2013
W.P.(C) 6562/2013 & CM 14288/2013
W.P.(C) 6563/2013 & CM 14290/2013
I.T.E INDIA PVT. LTD. AND ANOTHER Petitioners
Through : MrRajiv Bansal with MrDeepak Kumar
I.T.E INDIA PVT. LTD. AND ANOTHER Petitioners
Through : MrRajiv Bansal with MrDeepak Kumar
VERSUS
DELHI TOURISM JAND TRANSPORTATION DEVELOPMENT CORPORATION AND ORS Respondents
Through : MrR.K.Dhawan withMsRicha Dhawan and Ms Sheweta Joshi
Through : MrR.K.Dhawan withMsRicha Dhawan and Ms Sheweta Joshi
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
02.02.2015 In these writ petitions, the petitioner has been found to be ineligible for the subject tenders in view ofthe fact that it stands disqualified under Clause 2.2.19 ofthe
Request forProposal, which reads asunder:- "2.2.19 A Bidder including any Consortium Member or Associate should, in the last 3 (three) years, have neither failed to perform, on any contract, as evidenced by imposition of a penalty by an arbitral or judicial authority or a judicial pronouncement or arbitration award against the Bidder, Consortium Member or
Associate, as the case may be, nor has been expelled from any project or contract by any public entity nor have had any contract terminated any public entity for breach by such Bidder, Consortium Member or Associate."
The last part ofthe above Clause clearly stipulates that a bidder, who has had a contract terminated by any public entity for breach by such bidder, consortium member or associate, would be ineligible. In the case of the petitioner, its contract was terminated by the respondent itself on 13.10.2011, which is well within the period
2015:DHC:11550-DB of three years during which the Requests for Proposal were issued. Thepetitioner did not, prior to submitting its bid, challenge Clause 2.2.19 and participated in the said tenders. The learned counsel for the petitioner points out that the termination of the contract on 13.10.2011, is the subject matter of arbitration.
Be that as it may, there is no decision of either an Arbitral Tribunal or a Court indicating that the termination was bad. As long as the termination stays. Clause
2.2.19 will not permit the bidder to participate in the present tenders in view of the fact that the termination was within three years of the Requests for Proposal and submission of the bids.
The learned counsel for the petitioner wants us to examine orders passed in certain other proceedings which have absolutely no relevance in the present writ petitions. One is a proceeding under the Public Premises (Eviction ofUnauthorized
Occupants) Act, 1971 where the petitioner has taken the point that the premises do not fall within the ambit of the Public Premises (Eviction of Unauthorized Occupants)
Act, 1971. The other is a proceeding pertaining to the arbitration that is going on between the parties, where the respondents have made a statement that they shall not dispossess the petitioner except in accordance with law. The action taken by them is under the Public Premises (Eviction of Unauthorized Occupants) Act, which, accordingto the respondents, is fully applicable.
It is obvious from the above that the two proceedings that the learned counsel for the petitioner seeks to refer to, has no connection, whatsoever, with the present
Requests for Proposal, which clearly do not entitle the petitioner to participate inthe same. The rejection of the petitioner's bids under the two Requests for Proposal are valid inasmuch as the petitioner's contract with the respondent itself was terminated on 13.10.2011 and the bids were furnished in November, 2012, which was within the period ofthree years.
There is no merit in these writ petitions. The same are dismissed. There shall be no order as to costs.
FEBRUARY 02, 2015 SR BADAR DURREZ AHMED, J SANJEEV SACHDEVA, J
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HON'BLE MR. JUSTICE SANJEEV SACHDEVA
02.02.2015 In these writ petitions, the petitioner has been found to be ineligible for the subject tenders in view ofthe fact that it stands disqualified under Clause 2.2.19 ofthe
Request forProposal, which reads asunder:- "2.2.19 A Bidder including any Consortium Member or Associate should, in the last 3 (three) years, have neither failed to perform, on any contract, as evidenced by imposition of a penalty by an arbitral or judicial authority or a judicial pronouncement or arbitration award against the Bidder, Consortium Member or
Associate, as the case may be, nor has been expelled from any project or contract by any public entity nor have had any contract terminated any public entity for breach by such Bidder, Consortium Member or Associate."
The last part ofthe above Clause clearly stipulates that a bidder, who has had a contract terminated by any public entity for breach by such bidder, consortium member or associate, would be ineligible. In the case of the petitioner, its contract was terminated by the respondent itself on 13.10.2011, which is well within the period
2015:DHC:11550-DB of three years during which the Requests for Proposal were issued. Thepetitioner did not, prior to submitting its bid, challenge Clause 2.2.19 and participated in the said tenders. The learned counsel for the petitioner points out that the termination of the contract on 13.10.2011, is the subject matter of arbitration.
Be that as it may, there is no decision of either an Arbitral Tribunal or a Court indicating that the termination was bad. As long as the termination stays. Clause
2.2.19 will not permit the bidder to participate in the present tenders in view of the fact that the termination was within three years of the Requests for Proposal and submission of the bids.
The learned counsel for the petitioner wants us to examine orders passed in certain other proceedings which have absolutely no relevance in the present writ petitions. One is a proceeding under the Public Premises (Eviction ofUnauthorized
Occupants) Act, 1971 where the petitioner has taken the point that the premises do not fall within the ambit of the Public Premises (Eviction of Unauthorized Occupants)
Act, 1971. The other is a proceeding pertaining to the arbitration that is going on between the parties, where the respondents have made a statement that they shall not dispossess the petitioner except in accordance with law. The action taken by them is under the Public Premises (Eviction of Unauthorized Occupants) Act, which, accordingto the respondents, is fully applicable.
It is obvious from the above that the two proceedings that the learned counsel for the petitioner seeks to refer to, has no connection, whatsoever, with the present
Requests for Proposal, which clearly do not entitle the petitioner to participate inthe same. The rejection of the petitioner's bids under the two Requests for Proposal are valid inasmuch as the petitioner's contract with the respondent itself was terminated on 13.10.2011 and the bids were furnished in November, 2012, which was within the period ofthree years.
There is no merit in these writ petitions. The same are dismissed. There shall be no order as to costs.
FEBRUARY 02, 2015 SR BADAR DURREZ AHMED, J SANJEEV SACHDEVA, J
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JUDGMENT