Flying Elephant Studio v. Central Public Works Department (Cpwd) & Ors

PRATEEK JALAN, J.

S. RAVINDRA BHAT, J. APRIL 15, 2019 "hkaur"

* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 25th March, 2019 Pronounced on: 15th April, 2019 + W.P.(C) 11565/2018 & CM Appl. Nos. 44754-55/2018 & 48269-70/2018 M/S FLYING ELEPHANT STUDIO ..... Petitioner Through: Ms.Swathi Sukumar, Ms.Surya Rajappan and Mr.Naveen Nagarjuna, Advocates versus CENTRAL PUBLIC WORKS DEPARTMENT (CPWD) & ORS. ..... Respondents Through: Mr.Rajesh Gogna, CGSC with Mr.Upendra Sai, Advocate for CPWD Mr. K.Datta & Mr. Manish Kumar Srivastava, Advocates for R-4 CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE PRATEEK JALAN MR.JUSTICE PRATEEK JALAN % 1. This writ petition concerns a Notice Inviting Tender [hereinafter referred to as the "NIT"] dated 19.06.2018, issued by the respondent No.1, Central Public Works Department [hereinafter referred to as "CPWD"] entitled "International Design Competition with comprehensive Architectural and Engineering Planning for proposed museum on Prime Ministers of India in the premises of Nehru Memorial, Museum and Library, Teen Murti Bhawan, New Delhi". The petitioner's grievance is that its bid was rejected by the respondent's communications dated 18.08.2018, 27.09.2018 & 11.10.2018. 2. The petitioner is an architectural firm based in Bangalore. It claims to have completed several national and international projects including educational institutions, museums, offices, industrial buildings and research facilities and participated in national and international exhibitions. It has also been recognized by various awards. It submitted its proposal pursuant to the NIT on 06.08.2018 with material to demonstrate that it satisfied the stipulated eligibility criteria. At the respondent's request, a power point presentation of the proposal was also submitted. However, by the impugned communication dated 28.08.2018, the CPWD informed the petitioner that it did not satisfy the eligibility criteria. The petitioner represented against this communication to both the CPWD and the Director of the Nehru Memorial Museum and Library [respondent No.2, hereinafter referred to as "NMML"] on 29.08.2018 and 30.08.2018 respectively. The NMML advised the petitioner to pursue the matter with the CPWD. As the CPWD had not responded to its representation, despite a reminder dated 10.09.2018, the petitioner filed W.P. (C) 10034/2018 before this Court. That petition was disposed of on 25.09.2018, directing the CPWD to inform the petitioner of the reasons for its disqualification within two days and reserving the petitioner's right to challenge its rejection thereafter. The reasons were communicated to the petitioner by the impugned communication dated 27.09.2018 and a further representation dated 01.10.2018 was rejected by the impugned communication dated 11.10.2018. 3. At the very first hearing of this petition on 26.10.2018, we were informed that the tender had been awarded to a third party, M/s Sikka Associates, which was impleaded as respondent No.4. The Court ordered that the award of tender is subject to the outcome of these proceedings and directed communication of the order to the successful tenderer. 4. We have heard Ms. Swathi Sukumar, learned counsel for the petitioner and Mr. Rajesh Gogna, learned Central Government Standing Counsel for the CPWD. As their arguments turn on an interpretation of the eligibility criteria set out in the NIT, the relevant clause of the NIT is reproduced below: "4. Initial Eligibility Criteria- a) The competition is open to all architects/architectural firms/architectural or engineering consultants in India and abroad. However, the architects/architectural firms/architectural or engineering consultants should have at least one of the members as a registered Architect (In their respective countries). In case of foreign architects/architectural firms/architectural or engineering consultants, they have to enter into joint venture (JV) with an Indian – architects/architectural firms/architectural or engineering consultants with Indian – arch