3R Technologies v. U O I & Anr

1. With the consent of the parties, the writ petition is set down for final hearing and disposal. The petitioner is a manufacturer and service provider under the Micro, Small and Medium Enterprises (MSME) category in the field of waste treatment and disposal. An e-tender was invited by the respondent on 24.5.2018 with respect to operation and maintenance of 2019:DHC:3738-DB sewage treatment plants at CHTP, SLTP, GTNI, AJG, HCC metro stations, effluent treatment plant at Sultanpur depot and water treatment plant at Sultanpur depot and Gurgaon staff quarters. Approximate cost of the work was Rs.174.53 lacs. The petitioner submitted its bid on 11.5.2018, which was rejected on 24.5.2018.

2. The first submission of learned counsel for the petitioner is that the communication dated 24.5.2018 informing the petitioner with regard to rejection of the bid is devoid of any reason. The second submission of learned counsel for the petitioner is that since the petitioner falls in the MSME category, the petitioner is entitled to various reliefs/concessions and thus the bid of the petitioner could not have been rejected.

3. Learned counsel for the respondent submits that the petitioner is well aware about the reasons of rejection, which is that the petitioner did not comply with the minimum eligibility criteria, more particularly the work experience and financial standing. Reliance is placed on Clause 1.2.2, the relevant portion of which is reproduced herein below:- “1.2.2Minimum Eligibility Criteria (a)Work Experience: The tenderers will be qualified only if they have successfully completed work(s) during last 5 (five) years ending last day of the month previous to the month of tender submission in any Central Govt./state Govt./PSU’s/DMRC or any private Limited company of reputeas given below:

(i) At least one “similar work” **of value of Rs.46.54 lakhs

(ii) Two “similar works”** each of value of Rs.29.08 lakhs

(iii) Three “similar works”** each of value of Rs.23.27 lakhs”

4. Learned counsel for the petitioner in response thereto submits that being an MSME certified contractor, Clause 1.2.[2] would not apply to him and in the alternative he submits that such a condition should not have been imposed on MSME registered contractors.

5. Ms. Vibha Mahajan Seth, learned counsel for the respondent submits that the Respondent had mentioned all the terms and conditions in the notice inviting tender. The petitioner was well aware of those conditions and cannot lay a challenge to these conditions at this stage, more particularly, after the tender stands awarded on 06.06.2018.

6. We have heard the learned counsels for the parties.

7. Perusal of clause 1.1.[2] of the terms and conditions of the notice inviting tender clearly shows that the only concession that was available to MSME certificate holder was exemption from tender cost and tender security. The tender conditions nowhere stipulate that the minimum eligibility criteria could be waived in the case of a MSME registered company/firm. We quote the relevant clause as under: “* Tender Cost and Tender Security is exempted for Micro & Small Enterprises (MSEs) registered with District Industries Centre or Khadi & Village Industries Commission or Khadi & Village Industries Board or Coir Board or National Small Industries Corporation or Dte. of Handicraft & Handloom or any other bodies specified by Ministry of Micro, Small & Medium Enterprises for appropriate category "Installation, Commissioning or annual maintenance of RO plant/ STP/ WTP/ ETP", have valid registration certificate and available capacity to bid as on date of tender submission.”

8. We find that the minimum eligibility criteria which includes the work experience required is mentioned in clause 1.2.[2] of the tender conditions, which we have quoted above in para 3 aforegoing. We do not agree with the contention of the learned counsel for the petitioner that being registered as an MSME, he is entitled to a waiver/relaxation in the minimum eligibility criteria regarding the work experience as there is no provision in the tender, giving such a relaxation. Even otherwise the tender in question has been awarded on 06.06.2018 and for both these reasons, we find that the present petition cannot be entertained.

9. The scope of interference in tender matters under Article 226 of the Constitution of India is restricted to the decision making process not the decision. The Hon’ble Supreme Court in Tata Cellular v. Union of India, (1994 (6) SCC 651) has held that the Courts can only interfere in the decision making process and not the decision and certainly judicial interference cannot extend to re-writing a tender document. We quote paras 70, 74 and 77 of the judgment in the case of Tata Cellular (supra) as under: