Simplex-Aanav JV v. South Delhi Municipal Corporation

1. Review of the judgment dated 20.11.2018 by which the writ petition was dismissed, is sought by this proceeding. The review petition has been filed pursuant to an order dated 18.02.2019 passed by the Supreme Court in SLP(C) No. 487/2019. The petitioner had challenged the judgment under review by way of the said Special Leave Petition, which was dismissed as withdrawn with the following observations:- 2019:DHC:1738-DB “Learned counsel appearing for the petitioner states that instead of challenging the tender condition, he seeks to go back to the High Court on an alternative plea viz., that he will procure approved original equipment only from the list of manufacturers given. With this observation, we permit the petitioner to withdraw the special leave petition and approach the High Court in a review within two weeks from today. In the meanwhile, the tender will not be processed further. The special leave petition stands dismissed as withdrawn.”

2. The writ petition concerns a tender issued by the respondent South Delhi Municipal Corporation (hereinafter, "SDMC") dated 04.07.2018 for the construction, operation and maintenance of three automated multi-level car parks. The principal challenge urged before us at the time of hearing of the writ petition, as noted in the judgment under review, was with respect to the stipulation in the tender conditions by which certain components of the automated parking system were to be manufactured by seven named original equipment manufacturers (hereinafter, "OEMs"). The contention of the petitioner was that it also possessed technologies, systems and designs of multilevel car parks and had experience in the construction, operation and maintenance thereof. The petitioner sought a direction that it be permitted to participate in the tender de hors the aforesaid restrictions.

3. Upon a consideration of the tender condition in the context of the limited scope of judicial review in such cases, the writ petition was dismissed.

4. The Special Leave Petition filed by the petitioner before the Supreme Court has been placed on record with the review petition. It appears therefrom that the petitioner had reiterated the contentions urged before this Court in respect of the impugned tender conditions. However, the petitioner also placed certain additional documents before the Supreme Court and ultimately withdrew the Special Leave Petition, on its statement that it wished to urge an additional plea before this Court by way of a review petition viz., that it will procure approved original equipment only from the list of manufacturers given.

5. We may observe at the outset that the review petition is unfortunately not limited to the contention recorded in the order of the Supreme Court but seeks additionally to revisit the original challenge. This is evident inter alia from the following extracts of the review petition:-

I. That the action of the Respondents is totally led to the favouritisms to the OEMs and it has created a kind of monopoly for those manufacturers and even the scope of competition got reduced. Therefore, the reduction in the scope of the competition is totally unjustified and would not in the interest of the public at large and the Respondents. It is submitted that there are specifications and standard prescribed for each and every equipments for construction of the project. Therefore, there was no justification for the Respondents to confine the approved OEM as has been done in the present matter. It is further submitted that the action of the Respondents is violative of the mandate of equality as enshrined under Article 14 of the Constitution of India.”

6. In our view, the aforesaid facts and grounds do not disclose any error apparent on the face of the record which would justify a review of our judgment dated 20.11.2018. The very same arguments have been considered therein, and no statutory provision or binding judgment which was originally overlooked has been cited in support of the application for review. We also do not read the order of the Supreme Court dated 18.02.2019 as requiring reconsideration of the same arguments which were dealt with in the judgment under review; to the contrary, the Supreme Court has recorded the petitioner’s contention that it wished to approach this Court on "an alternative plea".

7. Mr. S.D.Singh, learned counsel for the petitioner submitted that the alternative plea that he wished to urge before us was that a bidder ought not to be required to have a prior arrangement or understanding with any of the approved OEMs. His contention was that the petitioner ought to be permitted to participate in the tender without such an arrangement or understanding and would, if successful, procure the equipment from one of the approved OEMs.

8. We are unable to grant relief to the petitioner, even on this alternative plea. Once it is accepted that the equipment must be provided from an approved OEM, there is nothing arbitrary or unreasonable in requiring a bidder to demonstrate its preparedness to do so, particularly when the equipment is specialized and custommade, as in this case. As discussed in the judgment under review, the scope of challenge to tender conditions is relatively limited, and we do not find this ground sufficiently compelling to return a finding of manifest arbitrariness. We are also of the opinion that public interest would not be served by interdicting a tender process in the circumstances made out by the petitioner.

9. A consideration of the eligibility conditions in the tender also demonstrate that the petitioner is not entitled to the relief claimed. The tender which was the subject matter of the writ petition contained various eligibility conditions and qualifications in Clause 11. The experience criteria contained in Clause 11.1.[3] provided separately for technical qualification and financial qualification. The criteria provided for technical qualification, which are relevant for the purpose of this case, are as follows:- “11.1.[3] Experience: Wherever mentioned and as required in 11.[2] and 11.3, the bidder(s) shall meet the conditions of Similar/ relevant works and submit the required documents alongwith in respect to corresponding mentioned fields. For different modes of bidding (i.e. as individual or in group) the required experience for meeting criteria are specified as below to be read in correspondence with the matching eligibility conditions in 11.[2] and 11.[3] respectively: For technical Qualification (as in 11.2) (a) Bidder/ s must have minimum experience defined for similar works in the following and under as: i. Minimum experience in similar works in respect to Civil Works of at least: One completed work of Construction of Multi-level structures in RCC & steel or RCC (including Automated or conventional Multi-level Car parking), either overground or underground, including finishing, MEP services, firefighting installations. ii. Minimum experience in similar works in respect to Car parking systems of (at least): One completed works as OEM of 80 ECS during the last seven years. OR Two completed separate works as OEM of 60 ECS during the last seven years. OR Three completed separate works as OEM of 60 ECS during the last seven years. Note: Original Equipment Manufacturer (OEM): provision of technology, installation, testing and commissioning of Automated Car parking systems as per the technology requirements of the project in compliance with the EN NORMS. (Including its engineering & system design, specifications & logistics) of minimum three systems in India/Ten systems world over. The concerned must have an experience of operating and maintaining the system of comparable technology for 2 years (at least) totaling of 100 ECS.”

10. "The minimum eligibility conditions" referred to in the above Clause were further elaborated in Clause 11.[2] in the following terms:- “11.[2] Minimum Eligibility Conditions (a) In complete independent capacity, Bidder can be Indian registered or foreign registered individual firm meeting with minimum experience criteria of in similar works in respect to BOTH civil works and parking systems. (b) Bidder (s) bidding individually, but in MoU with an OEM for parking systems must: i. Bidders should have had experience of similar works in respect to civil works with any Govt organisation in India/with multinational/listed company/semi government. ii. Such Bidders are only eligible, if they have agreement with a parking system counterpart who meet minimum experience criteria in Similar works in respect to parking Systems [manufactured/supplied parking system should comply the specifications mentioned in the tender document as per EN NORMS]. (Such bidder (as mention in 2.1b)) must have an agreement with a OEM for parking systems as Memorandum of Understanding [MoU] with relevant documents for MINIMUM EXPERIENCE for evaluation, substantiating the TECHNICAL criteria in respect of supply/installations, manufacture and logistics support to the said bidder prior to submission of bid proposal). OR i. Bidders should have had experience of similar works in respect to parking Systems (manufactured/supplied parking system should comply the specifications mentioned in the tender document as per EN NORMS). ii. Such Bidders are only eligible, if they have agreement with an eligible bidder who meets minimum experience criteria in similar works in respect to civil works with any Govt. organization in India/with multinational/listed company/semi government. (Such bidder (as mention in 2.[1] (b)) must have can agreement with a civil works counterpart as Memorandum of Understanding [MoU] with relevant documents for MINIMUM EXPERIENCE in for evaluation, substantiating the TECHNICAL AND FINANCIAL, criteria in respect of parking systems. 11.2.[1] Bidders applying in form of a (group) JV/Consortium, each member of such a consortium or JV must hold a minimum participation percentage (including equivalent stake in legal and financial modalities) as agreed with the members of the group. The lead member must commit to hold a minimum equity stake not less than 51% of the aggregate shareholding of the Consortium for Construction and Operation & maintenance Period. Any group should, within its constitution, must fulfil the following: h) At least one member of the group should compulsorily be a parking system/supplier. Such member should meet the minimum experience criteria in respect to similar works for parking systems. (Evaluation / consideration of completion certificate / credentials of projects fulfilling the above criteria will be only taken into account). i) At least one member should be experienced in civil construction. Such member should meet the minimum experience criteria in respect to similar works for civil works. (Evaluation/consideration of completion certificate/credentials of projects fulfilling the above criteria will be only taken into account.)”