M/S Vectra Advanced Engineering Pvt. Ltd. & Anr v. Union of India & Anr

order on costs.

S. RAVINDRA BHAT (JUDGE)

S.P. GARG (JUDGE) OCTOBER 17, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 27.07.2017 Pronounced on: 17.10.2017 + W.P.(C) 8106/2013, C.M. APPL.17117/2013 & 20170/2017 M/S. VECTRA ADVANCED ENGINEERING PVT. LTD. ..... Appellant Through : Sh. Balaji Subramanian with Sh. Siddharth Nath, Advocates. versus UNION OF INDIA AND ANR. ..... Respondents Through : Sh. P.N. Misra, Sr. Advocate with Sh. Y. Chaudhary and Sh. Chetan Lokur, Advocates. Sh. Bhagwan Swarup Shukla, CGSC, for UOI with Sh. Shambhu Chaturvedi, Advocate. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE S.P. GARG MR. JUSTICE S. RAVINDRA BHAT % Facts: 1. The Petitioner - M/s Vectra Advanced Engineering Private Limited (hereafter "Vectra") seeks directions in respect of the award of a tender by the Union Ministry of Defence (hereafter "MoD") for the acquisition of 606 Material Handing Cranes (MHC). Vectra is aggrieved because the MoD has by letter dated 14.11.2013 declared second respondent, i.e. Span Industries as the lowest bidder (L1). 2. The facts of the case are that the MoD published a tender invitation, ("RFP") proposing to acquire the 606 MHC from eligible vendors. The evaluation of tenders had to be proceeded with in terms of Part III- Paras 37-38 and Part IV Para 45(b) of the RFP which, read together, provide that the commercial proposals of shortlisted firms are to be opened by the Committee on the appointed date, a comparative statement prepared and the lowest bidder (hereinafter referred to as "Ll") determined on this basis. The reasonableness of such L1 price is to be established based on advance/stage payments etc. and no further negotiation is to be conducted with such Ll vendor 3. Part III of the RFP which contained the commercial aspects of the tender and more particularly Paragraphs 37 to 40 are extracted below: - "Commercial Offer 37. Commercial offers will be opened only of the vendors whose equipment is shortlisted, after technical trials and evaluation. The Commercial Offer must be firm and fixed and should be valid for at least 18 months from the date of submission of offer. 38. The Commercial Offers will be opened by a committee and if supplier desires he may depute his representative, duly authorized in writing, to be present at the time of opening of the offers. The committee will determine the lowest bidder (L1). No negotiations would be carried out with the L1 vendor once the reasonability of the price quoted by him is established (This provision would be applicable only in a multi-vendor cases. For such cases the aspects of advance f stage payments if any and all requisite details for the vendor to formulate a comprehensive commercial proposal be indicated upfront in the RFP so that selection of L1 is facilitated).The date, time and venue fixed for this purpose will be intimated separately after the evaluations are completed. 39. You are requested to take into consideration the Payment terms given at Appendix E while formulating the Commercial Offers. 40. To assist the supplier in formulating the Commercial Proposal and to ensure that all aspects are covered, a suggested format is given at Appendix F." 4. Part IV- Paragraph 45 of the RFP which inter alia deals with the evaluation and acceptance criteria of commercial bids is as under: - "45. Evaluation and Acceptance Process a. **** b. Evaluation of Commercial Proposals - The Commercial proposals of the firms whose equipment is shortlisted, after technical trials and evaluation and whose offset offers have been accepted technically (if applicable) will only be opened and a comparative statement will be prepared. Comparison of offers will also be done on the same basis." 5. Commercial bids of Vectra and the second respondent as on the day of the bid opening were subject to certain clarifications- requested by the latter (i.e second respondent). After such opening of the commercial bids, the MoD, by letter dated 13.09.2013 called upon Vectra to attend a meeting in their office on 18.09.2013 to tende