Hi-Tek Ots Pvt Ltd v. New Delhi Municipal Council

NAJMI WAZIRI, J (JUDGE) JULY 9, 2013/mv/ajk

W.P.(C) 3930/2013 Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI DECIDED ON: 9th July, 2013 + W.P.(C) 3930/2013, CM APPL. 7331/2013 HI-TEK OT'S PRIVATE LIMITED ..... Petitioner Through: Mr. Dinesh Agnani, Sr. Advocate with Ms. Leena Tuteja and Ms. Shoma Chaudhary, Advocates. Versus NEW DELHI MUNICIPAL COUNCIL ..... Respondent Through: Ms. Madhu Tewatia and Ms. Sidhi Arora, Advocates. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI % MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) 1. The present writ petitioner seeks quashing/setting aside of the corrigendum issued by the respondent New Delhi Municipal Council (NDMC) by which eligibility conditions in a tender issued by it were changed. NDMC also decided to revaluate financial bids in terms of the newly formulated conditions. 2. Brief facts necessary for deciding the case are that the NDMC called for tenders for supply and installation of Fabricated/Modular Operation Theatres and Clean Rooms in one of the hospitals i.e. Charak Palika Maternity Hospital. Two tender conditions, which were the subject matter of the controversy in the present proceedings, W.P.(C) 3930/2013 Page 2 may be useful and are extracted below: "2. The lowest firm (L1) shall be decided on the basis of quoted rates. Price quoted should be inclusive of cost of materials, labours, supervision, installation, testing and commissioning, materials erection, tools, plant appliances, scaffolding, sleeves, cutting, patching excavation and backfilling, painting, storage of material, service connections, transport to site, duties, transit insurance octroi and levies, all relevant insurance charges, ESI, PF, breakage, wastage and all such expenses as may be necessary and required for the satisfactory conditions and all other requirement as called for in all the parts of these Tender Documents. The price quoted should be inclusive of excise duty and other charges, if any, inclusive of D-Vat also. The price bid should not be submitted in physical form i.e. in the tender box, it should be submitted on line only XXXXXX XXXXXX XXXXXX. 28. AMC/CMC: The project should be offered with five years Guarantee. The tenderer should also submit the rates for the operation and maintenance (AMC/CMC) for the next five years on yearly (per annum basis) to ensure satisfactory/flawless functioning of the project to give the desired result. The information should be submitted in .pdf format along with price bid strictly as per specimen given as annexure. The rates of AMC/CMC should be in % (percentage) of quoted rates of the project. The Director (Medical Services) shall have the right to accept or reject all or any part of rates so offered." 3. In addition, the NDMC had spelt out special conditions of contract. The relevant stipulation, i.e. Clause 8, required the tendered to furnish a declaration. The stipulation is extracted below: "8. The tenderer should furnish the following declaration separately: W.P.(C) 3930/2013 Page 3 a) Declaration of non involvement in any litigation with any Government in India. b) That the tenderer is not under a declaration of ineligibility for corrupt or fraudulent practices. c) Declaration of not been Charged or convicted or blacklisted by any Central / State / UT Government. d) Declaration of non-political and non- denominational organization with no affiliation to any political parties." 4. The petitioner's grievance is that on 02.04.2013, a day before the tender was scheduled to be opened a corrigendum was issued – but subsequently notified by the NDMC on its website and published on 09.04.2013. This had effect of amending or modifying Clause 8. The amended Clause 8 to the extent it is relevant reads as below: "8. The tenderer should not have been blacklisted/debarred by any State Govt./Central Government department/organizations." 5. The opening of the tender/bids was apparently extended to 15.04.2013. It was later further extended to 25.04.2013. Notice was given to public at larg