M/S Stallion Security v. Union of India and Ors

PRATEEK JALAN, J

S. RAVINDRA BHAT, J November 26, 2018 "pv"

* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 31.10.2018 Pronounced on: 26.11.2018 + W.P.(C) 3309/2018 & CM Appl. Nos. 12989-12990/2018 M/S STALLION SECURITY ..... Petitioner Through: Mr. Sudhanshu Tomar, Adv. versus UNION OF INDIA AND ORS. ..... Respondents Through: Mr. Vinod Diwakar, CGSC with Mr. Kashish Bajaj, Adv. for R-1 to 3. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE PRATEEK JALAN MR. JUSTICE PRATEEK JALAN % 1. This writ petition concerns a tender (No. NIC/PTS/2017/07) issued by the National Informatics Centre, New Delhi ("NIC") on May 08, 2017 for provision of housekeeping and pest control services at its headquarters in New Delhi (hereafter, "the subject tender"). 2. The petitioner and the fourth respondent no. 4 herein (viz., R. K. Jain & Sons Hospitality Services Pvt. Ltd- hereafter "RKJ") participated in the subject tender and were found technically qualified. In fact, the petitioner was providing these services to NIC under a rate contract dated June 23, 2016, initially for the period July 01, 2016 to June 30, 2017, which was thereafter extended until March 31, 2018. The subject tender, however, culminated in the award of a contract (Rate Contract No. NIC/TPS/2017/07/RC/01) dated March 07, 2018 in favour of Respondent No. 4 for the period April 01, 2018 to March 31, 2019. This has led to the institution of these proceedings. 3. The petitioner has agitated two grievances before this Court: (a) That RKJ's bid was accepted without following the process of opening and uploading the financial bids of the bidders on the designated website, as required for an e-tender. (b) The petitioner has produced the bid submitted by it and the bid submitted by RKJ to say that the latter did not provide for payment of Employees' Provident Fund ("EPF") in respect of two categories of employees, which led to an artificial lowering of its bid. It is the contention of the petitioner that, if the amounts provided by it for EPF in respect of those two categories are ignored, then its bid would be lower than that of the Respondent no. 4. 4. NIC filed a counter affidavit dated May 09, 2018 to the writ petition, and also filed an additional affidavit dated October 31, 2018 dealing specifically with the question regarding non-opening of the financial bids. Re: non-opening of financial bids 5. In support of its contention that the financial bids had to be opened and uploaded prior to the acceptance of the tender, the petitioner relies upon an Office Memorandum dated November 30, 2011 issued by the Public Procurement Cell, Department of Expenditure, Ministry of Finance, which states inter alia as follows: "e. Ministries/ Departments, CPSEs and autonomous/ statutory bodies that are already publishing their tender enquiries on www.tendersgov.in and/or on their respective websites, shall ensure that their tender enquiries are simultaneously published / mirrored on the CPP Portal also. They may also ensure that all corrigenda and details of the contract awarded as a result of the tender enquiry, are also published on the CPP Portal." 6. NIC, denies the petitioner's argument, and contends that the financial bids were opened on September 01, 2017 and all technically qualified bidders were invited to participate in that meeting. In fact, the representative of the petitioner was present. At the meeting, and in terms of the tender documents, NIC declared the "Grand Total Value" (or "GTV") of each bidder, and identified the RKJ as the lowest bidder based on this value. As the GTV represented the amount that NIC would be liable to pay for the services deployed, there was no requirement for further analysis of the detailed financial bids. It is also contended by NIC, in the additional affidavit filed by it, that the GTV was shown to all bidders on the Central Public Procurement Portal. NIC has further stated that the petitioner was also empanelled on the same selection criterion and process in the last tender. 7. NIC has also