Full Text
HIGH COURT OF DELHI
Date of Decision: 4th January, 2023
M/S AERO GLOBE FACILITY AND OTHERS ..... Petitioner
Through: Mr. Umakant Mishra, Mr. Niranjan Sahu & Ms. Apoorva Sharma, Advocates (M-7064454965)
Through: Ms. Dipika Sharma, Ms. Ritika Khanagrol & Ms. Anjana Gosain, Advocates for R-1 (M-9810100674).
Mr. Digvijay Rai, Mr. Archit Mishra, Advocates for R-2-3/AAI along with
Mr. C.P. Dwivedi, GM (OPS), AAI & Mr. Mukesh Kumar, DGM (OPS), AAI.
JUDGMENT
1. This hearing has been done through hybrid mode.
2. The present petition has been filed by the Petitioners which are Ground Handling Agents and have been providing ‘Ground Handling Services’ at various airports in the country. The Petitioners are part of a Consortium, with Petitioner No.1 – Aero-Globe Facility Management as the lead member having 51% share, Petitioner No.2 – Sri Sai Sampat Aviation Handling Service having 26% share, and Petitioner No.3 – Airclub Aviation Private Limited having 23% share in the Consortium.
3. The Petitioners have preferred the present petition challenging the rejection of their Technical bids and non-consideration of their Financial bids for Ground-Handling Services in respect of multiple airports of the Respondents – AAI. The prayers sought in the present petition are extracted below: “It is therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to: i) Pass appropriate writ, Certitiori, direction, order quashing orders of the Respondent authorities dated 12.12.2022 and 14.12.2022 disqualifying the Technical bids and not considering the Financial bid of the petitioners' consortium submitted in respect of eight airports of Bikaner, Gorakhpur, Gwalior, Hindon, Jaisalmer, Kanpur (Chakeri), Prayagraj (Allahabad) & Jamnagar in RFP Tender ld 2022_AAI_131185_1 ii) Pass appropriate writ in the nature of certiorari, direction, order quashing orders of the Respondent authorities dated 14.12.2022 declaring the selected H[1] bidders for the eight airports of Bikaner, Gorakhpur, Gwalior, Hindon, Jaisalmer, Kanpur (Chakeri), Prayagraj (Allahabad) & Jamnagar in RFP Tender ld 2022_AAI 131185_1 iii) Pass appropriate writ, mandamus, direction, order directing the respondents to consider the financial bids submitted by the petitioners Consortium in respect of 8 airports - Bikaner, Gorakhpur, Gwalior, Hind on, Jaisalmer, Kanpur (Chakeri), Prayagraj (Allahabad) & Jamnagar; iv) Alternatively, Pass appropriate writ, mandamus, direction, order directing the respondents to consider the financial bids submitted by the petitioners Consortium in respect of at least seven airports- Gorakhpur, Gwalior, Hindon, Jaisalmer, Kanpur (Chakeri), Prayagraj (Allahabad) & Jamnagar based on their own accepted summated Turnover of Petitioners at Rs 18 Crores; v) Pass appropriate writ, direction, order directing the respondents to refrain from giving effect to the selection of bidders subsequent to declaration of H[1] including issuance of Letter of Intent to Award(LOIA) Consortium in respect of eight airports- Bikaner, Gorakhpur, Gwalior, Hindon, Jaisalmer, Kanpur (Chakeri), Prayagraj (Allahabad) & Jamnagar. vi) Alternatively, Pass appropriate writ, direction, order directing the respondents to ask the declared H[1] bidder/other bidders to at least match the MAG quoted by the petitioner consortium in respect of the airports in public interest where the Financial Bids submitted by the petitioners consortium is higher than the H[1] amount of the Selected bidder. vii) Pass such other direction/ order as is deemed fit and proper in view of the facts and circumstances of the case.”
4. The background of the case is that, on 6th October, 2022, the Respondent No.2 - Airport Authority of India floated a Request for Proposal (“RFP”) seeking bids for Ground Handling Services at 20 AAI Group D Airports, vide Tender ID:2022_AAI_131185_1. The bid submission due date and time was specified as 4th November, 2022. A ‘bidder’, for the purposes of the said tender, could be a single entity or a consortium comprising of a maximum of three entities.
5. The relevant clause stipulating the eligibility conditions prescribed, vide Tender ID:2022_AAI_131185_1, is set out below: “2.[2] Eligibility of Bidders… 2.2.2. To be eligible for shortlisting, a Bidder shall fulfil the following conditions of eligibility: (A) Technical Capacity: Submission of documents as per clause 2.13.[2] of RFP will be considered to ascertain technical capacity. (B) Financial Capacity: The Bidder shall have a minimum Net Worth and turnover as set out in Clause 3.2.2. In case of a Consortium, the combined technical capacity, net worth and turnover of those Members who have and shall continue to have an equity shares of at least 26% (twenty-six per cent) each in the SPV will be considered; provided that each such Member shall, for the entire Concession Term of the Project (s), hold equity share capital not less than 26% (twenty-six per cent) of the subscribed and paid up equity of the SPV. In case of a Consortium, the Net Worth and turnover will be computed as a summation of the Net Worth and turnover respectively of each such Member who has 26% or more share in the Consortium.”
6. In response to the RFP notified by the Respondent No.2 - AAI, the Petitioners formed a Consortium with Petitioner No.1 as the lead member to participate in the said tender and submitted its bid for the following eight airports: i. Bikaner; ii. Gorakhpur; iii. Gwalior; iv. Hindon; v. Jaisalmer; vi. Kanpur (Chakeri); vii. Prayagraj (Allahabad); and viii. Jamnagar
7. Clause I of the Notice Inviting E-Bid (NIEB) specified the required turnover for each of the above eight airports, as under: AIRPORT REQUIRED TURNOVER Bikaner Rs.2,00,00,000/ Gorakhpur Rs.3,00,00,000/ Gwalior Rs.2,00,00,000/ Hindon Rs.2,00,00,000/ Jaisalmer Rs.2,00,00,000/ Kanpur (Chakeri) Rs.3,00,00,000/ Prayagraj (Allahabad) Rs.3,00,00,000/ Jamnagar Rs.3,00,00,000/ TOTAL REQUIRED TURNOVER Rs.20,00,00,000/
8. It is the case of the Petitioners that the Consortium formed by the Petitioners was eligible to bid as they fulfilled the conditions of eligibility of Technical and Financial Capacity in terms of Clause 2.2.[2] (A) & (B) of the Request for Proposal (RFP), as their cumulative turnover was over Rs.20 crores. For the purpose of their bid, the Petitioners’ Consortium summated the net worth and turnover of Petitioner No.1 for the financial year 2017-18 and turnover of Petitioner No.2 for the financial year 2019-20, which amounted to a total of Rs.20,37,70,827/-. Thus, it is submitted by the Petitioners that all the stipulations as per the RFP were complied with.
9. However, during the evaluation of the Petitioners’ bid, a clarification was sought by the Respondents on 23th November, 2022, on the ground that the Petitioners did not satisfy the conditions of turnover requirement in terms of Clause 3.2.2. In the said clarification, the Respondents objected to the clubbing of turnover for different years, and commented as under: “As per Financial Capacity statement submitted by M/s Aeroglobe(51%) and M/s Sai Sampat (26o/o ), in the preceding five financial years, the summation of turnover of Rs 18 crore is the highest for the FY2017- 18.... Hence as per financial capacity, the consortium is not meeting the required minimum turnover criteria of Rs 20 crores for 08 airports mentioned in Annexure 4A of the uploaded bid documents.”
10. While responding to the said clarification sought by the Respondents, the Petitioners sought to delete its bid qua Bikaner in order to meet the eligibility criteria. However, the said request was not accepted by the Respondents, on the ground that the bid is a composite bid and the same is not airport-wise. Thus, the deletion of Bikaner was not permitted.
11. The Petitioners were informed that due to the Petitioners’ request to drop one airport being Bikaner on account of the perceived shortfall in the summated turnover, the Financial bids of all other seven airports would not be considered. In view thereof, vide Letter dated 12th December, 2022, the Petitioners were informed of the disqualification of their bid, as under: “a) "Duly audited Balance Sheet and P&L Account for Financial Years 2017-18 and 2019-20 were not uploaded in respect of Aero-Globe Facility management as per RFP requirement. " b) "Petitioners methodology of clubbing Turn Over of different years is not acceptable as the same is not in consonance with RFP provisions in Clause I of NIEB(Notice Inviting E-Bid), clause 2.2.2(b) and Clause 3.2.2(1)" c) "Clause 3.4.[3] of RFP stipulates that Bidders were advised to carefully select the preferences of airport for which they wish to submit their bid as per Annexure 4A and submit their bid accordingly. The consortium had initially submitted its bids including technical and Financial Bids for eight airports and thereafter requested to drop one airport i.e Bikaner is a/so not acceptable as the petitioners have already submitted the Financial Bids including this airport in your composite application which is non-compliance of Clause 3.2.2.of RFP.”
12. Vide order dated 14th December, 2022 published on their e-portal, the Respondents finalized the evaluation of bids and declared the selected H[1] bidders for all 20 airports, including the eight airports for which bids had been submitted by the Petitioners’ Consortium.
13. Ld. Counsels for the parties have been heard on the issue of grant of interim relief. It is submitted by ld. Counsel for the Petitioners that the financial bids submitted by the Petitioners are extremely competitive compared to the bids which have been finally accepted by the AAI. Reliance is placed on the following chart: AIRPORT Financial bid submitted by petitioners’ consortium (in Rs) H[1] Bid declared Bikaner, 8,40,000/- 2,52,004 Gorakhpur 16,80,000/- 5,50,000 Gwalior 15,00,000/- 14,51,999 Hindon 14,40,000/- 1,10,000 Jaisalmer 16,80,000/- 16,91,999 Kanpur (Chakeri) 19,20,000/- 5,86,000 Prayagraj (Allahabad) 19,80,000/- 13,00,000 Jamnagar 62,14,000/- 46,69,500.54
14. On the other hand, ld. Counsel for the AAI submitted that the financial bid of the Petitioners cannot be considered as the technical bid was itself rejected. Further, on the issue of turnover, the manner in which the Petitioners sought to compute the annual turnover criteria is not permissible. Thereafter, as a last ditch effort, the Petitioners sought to delete Bikaner airport. The bid of the Petitioners being technically non-compliant, the financial bids cannot be relied upon by the Petitioners.
15. The issue in the present petition appears to have arisen in view of the annual turnover of the Consortium partners of the Petitioners having been picked by the Petitioners in a rather strange manner. The Petitioners sought to choose the annual turnover of Petitioner No.1 for the financial year 2017- 18 and the turnover of Petitioner No.2 for the financial year 2019-20 in order to satisfy the condition of Rs.20 crores turnover, for its bid in respect of eight airports. This was not permitted by the AAI, and hence, the Petitioner sought to delete the Bikaner Airport.
16. Upon a perusal of the Clause 3.2.[2] of the RFP notified by the Respondents, as also, the disqualification letter dated 12th December, 2022, this Court is prima facie convinced that the stand of the Respondents is not liable to be interfered with at this stage. Clause 3.2.[2] reads as under: “3.2.2. Financial Capacity for purposes of evaluation
(i) To be eligible, the Bidders, in any one of the three financial year i.e 2021-22, 2020-21 and 2019-20, should have positive Net Worth and, in any one of the five financial years i.e 2021-22, 2020-21, 2019-20, 2018-19 and 2017-18, the annual turnover should be as indicated against respective airport as per Clause I of Notice Inviting E-Bid (NIEB). In case the Applicant is formed/registered/started operations after 1st April 2020, the condition of positive net worth shall not apply. If the bidder wishes to participate in more than one airport, the summation of turnover for those airports will be considered for evaluation. The Bidder shall enclose with its Bid certificate(s) from statutory auditors of the Applicant or its Associates specifying the Net Worth of the Applicant, in the financial years 2021-22, 2020-21 and 2019-20, and also specifying that the methodology adopted for calculating such Net Worth conforms to the provisions of the Clause 3.2.[2] (ii).
(ii) For the purposes of this RFP, net worth (the “Net
Worth”) shall mean the aggregate value of the paid-up share capital and all reserves created out of profits and security premium account and debit or credit balance of profit and loss account, after deducting the aggregate value of the accumulated losses, deferred expenditure and miscellaneous expenditure not written off, as per the audited balance sheet, but does not include reserves created out of revaluation of assets, write-back of depreciation and amalgamation.
(iii) Unique Document Identification Number
(UDIN) for documents provided against Financial Capacity shall be provided in the certificate issued by Chartered Accountant (as applicable).”
17. A perusal of the above Clause 3.2.[2] shows that the manner in which the Petitioners seek to read the same is completely untenable. While the said Clause gives the freedom to choose from any one of the five financial years, it cannot be stretched to mean that the Petitioners can choose different financial years for each of the Petitioners to arrive at the required turnover of Rs. 20 crores. Such an approach would be irrational, and clearly contrary to the tender condition which uses the expression “in any one of the three financial year”.
18. The Petitioners, upon realising that the said approach would be inadmissible, then sought to delete ‘Bikaner’ airport to achieve a required turnover of Rs. 18 crores, instead of Rs. 20 crores. In response to a RFP, bidders cannot be permitted to change the bid once the same are opened. If the same is permitted, the sanctity attached to bids would be lost and the same would also result in putting other bidders in a disadvantageous position. Thus, the AAI’s stand that the bid was a composite bid, and deletion of an airport in the manner sought to be done by the Petitioners is not permissible, is prima facie justified. Accordingly, the stay application being CM APPL. 56837/2022 is dismissed.
19. Issue notice in the writ petition. Notice is accepted by ld. Counsel for the Respondents.
20. It is made clear that the award of the tender shall be subject to the final outcome of the present petition.
21. List on 26th July, 2023.
PRATHIBA M. SINGH JUDGE JANUARY 4, 2023 Rahul/AD