w w w . L a w y e r S e r v i c e s . i n



Bihariji Agro Foods Pvt. Ltd. v/s State of Gujarat & Others

    Special Civil Application Nos. 20338, 20349, 20413 & 20423 of 2015

    Decided On, 24 February 2016

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE AKIL ABDUL HAMID KURESHI & THE HONOURABLE MR. JUSTICE Z.K. SAIYED

    For the Appellant: S.N. Soparkar, Senior Counsel, Bhadrish S. Raju, Advocate. For the Respondents: Kamal B. Trivedi, Advocate General, Sangeeta Vishen, AGP.



Judgment Text

Akil Abdul Hamid Kureshi, J.

1. These four petitions though present slightly different facts, arise out of a common tender process initiated by the respondent authorities. Number of issues therefore, overlap. They have been heard together and would be disposed of by this common judgment.

Challenge of the petitioners:

2. All the petitioners had applied for the contract for supply of ready to cook food mix in response to a tender dated 28.7.2015 issued by the respondents. The entire State was divided in seven zones. A contractor could apply for multiple zones but no contractor would be awarded more than four zones. In addition to these four petitioners, two more agencies namely, Kota Dall Mills and Flora-O-Foods had also applied. The authorities upon processing the technical bids disqualified all the petitioners. Tenders of the other two agencies, Kota Dall Mills and Flora-O-Foods were found valid. Kota Dall Mills had applied for all seven zones. Flora-O-Foods had also applied for all the zones. As per tender conditions, a tenderer could apply for all zones, would be awarded maximum four zones. However, the financial capability of Flora-O-Foods was not found sufficient even for four zones and therefore, at the choice of the said agency, its price bids were considered for zones No. 1, 3 and 6. The authorities compared the price bids of the two qualified tenderers and on the basis of such comparative study, decided to issue the work order to Kota Dall Mills for zones No. 1, 2, 3 and 6. At that stage, the petitioners approached this Court questioning their disqualification. They have also questioned the qualification of the said two agencies. The High Court has by interim order, prevented respondents from finalising the tenders.

Relevant conditions contained in the tender notice:

3. The preamble to the tender notice provides that:

"The Commissioner, Women and Child Development, Block No. 20, Dr. Jivraj Mehta Bhavan, Gandhinagar, Gujarat intends to procure from eligible original manufacturers experienced in manufacturing and processing of approximately 4600 Metric Ton (MT) of Energy Dense Micronutrient Fortified Extruded Blended Food, 2500 MT of Energy Dense Micronutrient Fortified Extruded Blended Sukhadi Ready to Cook Food Mix, 2200 MT of Energy Dense Micronutrient Fortified Extruded Blended Sheera Ready to Cook food Mix and 1800 MT of Energy Dense Micronutrient Fortified Extruded Blended Upma Ready to Cook food Mix in powder/granular form for a period of twelve months (subject to the directions of the Hon'ble Supreme Court in IA-110 of 2010) from the date of contract as per the requirement of ICDS scheme in Gujarat. The quantities mentioned above are for the entire state. This quantity is to be distributed in 7 zones covering 33 districts of Gujarat.

The Commissioner invites online tenders under e-tender procedure for manufacturing, packing, transporting and supplying the Ready to Cook Food Mix in 7 zones in the State of Gujarat."

4. The tender notice contained a schedule of requirement of such items bifurcated over seven zones as under:

Schedule of Requirement

5. As per clause (1) of the bid procedure, an interested bidder may quote for one or more zones separately for each zone based on its production and financial capacity to manufacture and supply the goods and meet with the delivery requirements. As per clause (7) of bid procedure, the bidder would have to provide valid documentary evidence to establish that the bidder is the original manufacturer of goods specified in the bid which may be in the form of registration with the Registrar of Companies under the Company Law, Articles of Association and Memorandum, audited balance sheet, registration as a manufacturer under the Factories Act with competent authority as may be admissible under the law. It was provided that non submission of such evidence will make the bid non responsive. The tender notice envisaged tender fee of Rs. 5000/- per zone and EMD at the rate of 3% of the estimated cost through a bank guarantee issued by the specified banks.

6. Section-II of the tender notice contains instructions to the bidders. Clause (1) thereof pertains to nature and scope of bid which provides inter-alia that the Integrated Child Development Services (ICDS) scheme is being implemented in the State by the Commissioner, Women and Child Development, Government of Gujarat. The scheme is an important and prestigious welfare scheme for the benefit of children in the age group of six months to 6 years, adolescent girls and pregnant women and lactating mothers. Besides other services, the scheme provides supplementary nutrient in the form of energy dense micronutrient fortified blended food to such beneficiaries. The bids are therefore, invited from experienced and reputed manufacturers of extruded micronutrient fortified blended food who are having requisite infrastructure, plant and machinery and technical expertise to manufacture/produce extruded micronutrient fortified blended food as per the guidelines issued by the Government of India. The manufacturer would be manufacturing ready to cook food mixes such as Sukhadi, Sheera and Upma as per the formulation and specifications prescribed and shall deliver the same at various anganwadi centres in the State.

7. Clause (7) of Section-II pertains to the documents comprising the bid. Relevant provisions thereof read as under:

"e. Bidder is required to submit self-certified copy of legal documents like registered partnership deed in case of a partnership firm, bye laws in case of a Co-operative Society, Memorandum and Articles of Association in case of a registered company etc;

g. A certificate issued by appropriate Government authority or chartered engineer indicating installed manufacturing capacity per day of all units mentioned in the tender;

i. Self-certificate stating manufacturing capacity earmarked for ICDS work out of the total installed manufacturing capacity of all units mentioned in the tender;

j. The Bidder should have in house Quality Control facilities, its own machinery and quality control laboratory equipped with appropriate laboratory equipments for testing the parameters prescribed in Food Safety and Standard Act (Prevention of Food Adulteration Act) and as per the specifications given in the tender regarding the Nutrient contents, Moisture content, Microbiological and Chemical contamination, Physical conditions e.g. dryness, softness, consistency, Micronutrient contents. Bidder must submit list of equipments, list of technically qualified personnel engaged in quality control etc.

m. Copies of the latest Balance Sheets and Profit & Loss Accounts for the period as required in the eligibility criteria, certified by a chartered accountant;

o. A self-declaration of bidder in the form of affidavit duly notarized mentioning that in case any particular or details given in any of bid is found to be inaccurate or incorrect or the certificate or any documents furnished by the concerned Manufacturer is found to be fabricated and not genuine, either on inspection by Authorized Personnel of the Commissioner or on the basis of information received through other sources, such bid(s) will be liable to be rejected and in case contract is given, the same will be liable to be rescinded and the same will be without prejudice to any other consequences (including forfeiture of EMD and/or Security Deposit) to which the concerned Manufacturer will be exposed for mis-representation and misleading the Commissioner, in the format annexed at Annexure-C.

p. Performance Certificate: Bidder must submit a certificate to that effect that during one of the last five financial years, he has satisfactorily executed manufacturing or producing and supply of Ready to Cook food mixes supplied as Take Home Ration premix. The certificate should mention the total value and quantity of the Ready to Cook food mixes manufactured/produced and supplied as Take Home Ration Premixes and should be issued by concerned Head of the Department. This supply should be in performance of a regular and formal contract for supplying at least quantity and value equal to required turnover of applied zone.

q. TURNOVER CERTIFICATE: Bidder has to submit a certificate showing his turnover of Ready to Cook Food Mixes manufactured/produced and supplied as Take Home Ration Premixes during the last two financial years (i.e. 2013-14 & 2014-15) certified by a Chartered Accountant on his letter head with his Membership Number of the Institute of Chartered Accountants of India along with certified copies of Purchase Orders against the supply and other supporting documents;

r. CREDIT WORTHINESS CERTIFICATE: Bidder must submit credit worthiness certificate issued from any Nationalized Bank/IDBI Bank/ICICI Bank/HDFC Bank certifying that his credit worthiness is atleast 15% of the estimated tender value of his zone(s) of interest, assuring that the bidder's account is not NON PERFORMING ACCOUNT (NPA) and bidder's unit is not a sick unit;

z. Blue print/drawing of the plant approved by Food and Drug Authority from where the product as specified in this tender will be produced and supplied by the bidder. The design/detail should cover locations and capacity (in MT) of silos, covered storage areas with capacity in MT, open storage areas with capacity in MT process divisions like extrusion, cleaning, grinding etc.,

aa. Bidder shall also submit Notarized copies of the following registration/licenses for producing Extruded Fortified Blended Food as specified in this tender:-

a. Copy of valid manufacturing license issued by the regulatory authority for all manufacturing facilities for production of Extruded Fortified Blended Food as per product specification under this tender,

c. VAT Registration/CST Registration Certificate.

e. A valid license under FSSA, 2006

j. A consent to establish and to operate the manufacturing unit for extruded fortified blended food issued by respective State Pollution Control Board"

8. Clause (12) of Section-II pertains to eligibility of bidders. Relevant portion of which reads as under:

"a. A bidder can be an Individual/sole proprietary or partnership firm/Private or Public Limited Company/Co-operative society/Co-operative Federation/Public Undertaking or any other legal entity who is original manufacturer or producer of Extruded Fortified Blended Food.

b. Contractors, traders, middleman, distributors, dealers, non-trading companies, agents and any other individual and/or legal entity who are not original manufacturer or producer are strictly prohibited from bidding. Even if they bid, their bids will be outright rejected.

c. The bidder should have its own functional and operative manufacturing unit well equipped with appropriate infrastructure and should also have due technical expertise to manufacture or produce the Extruded Fortified Blended Food, as per the Product Specifications clause of this Tender document. Also all the valid licenses and certificates required under this tender for the factory designated for supply must be in bidder's own name. The unit designated for supply of the Ready to Cook Food Mixes under this tender should have been in operation in atleast any one of the last two financial years i.e. 2013-14 and 2014-15.

d. To be eligible to bid for a single zone, a bidder must have a minimum annual turnover for that respective zone as shown at appendix-D in any one of the last two financial years (i.e. 2013-14 and 2014-15). The aforementioned turnover must have been derived from manufacturing or producing of Ready to Cook Food Mixes. A bidder intending to bid for multiple zones must have aforementioned annual turn over in multiples for each additional zone as detailed shown at appendix-D.

e. The bidder should have a proven track record of supplying the Ready to Cook Food Mixes supplied as Take Home Ration premix anywhere in India for any 1 (one) year in last 5 (five) years. To be supported by the performance certificate as mentioned in clause No.-7(p) of this tender document.

f. The above mentioned turnover and its derivation must be certified by a Chartered Accountant on his letter head with his Membership Number of the Institute of Chartered Accountants of India along with certified copies of Purchase Orders against the supply and other supporting documents and should be substantiated with the help of a satisfactorily manufacturing and supplying Performance Certificate to this effect issued by the concerned Head of the Department. This supply should be in performance of a regular and formal contract for supplying atleast quantity and value equal to required turnover of applied zone.

g. In support of this, Copy of registration should be enclosed. Copies of audited Balance Sheet and Profit & Loss Accounts of one financial year (if any), certified by a Chartered Accountant should also be enclosed.

h. The bidder should be experienced manufacturer of the Ready to Cook Food Mixes and not traders (factory license and other proofs are required to be submitted) with minimum years 2 (two) years of experience in manufacturing of the Ready to Cook Food Mixes. Copies of work order or other proof are to be enclosed with the bid. All the licenses in the name of bidder are mandatory and these should be for manufacturing of extruded fortified blended foods.

i. The bidder should possess the required manufacturing capability to manufacture the required product as specified in this tender. Uncommitted Production capacity of the bidder should not be less than 100% of the monthly requirement for bidding per zone as mentioned at Appendix-D for the period of supply as on the date of award of contract. A proof to this effect issued by the appropriate authority (preferably Govt.) should be enclosed with the bid. The monthly quantity of the zone for which bid has been submitted by the bidder should not be more than the manufacturing capacity of the month.

j. Bidder is required to submit certified copy of the Central and State sales tax/VAT registration certificates, relevant PAN cards, partnership deed in case of partnership firm, constitution/Memorandum and Article of Association in case of Registered Company, registration certificate as a multi state cooperative society along with bye-laws (translated in English language) in case of a cooperative society or like documents as the case may be."

9. Clause (22) contains award criteria and provides inter-alia that the evaluation of the bids would be conducted in accordance with the terms of the tender, Government of Gujarat's policies and shall be based on price, specifications, certification, delivery and other relevant factors like transport cost, etc. Clause (30) pertains to price bids and provides inter-alia that the price of ready to cook food mixes shall be quoted for the zone.

Case of the petitioners in brief:

10. In response to such tender notice, all the petitioners had applied. For multiple reasons, which are different for different petitioners, the respondents found that the petitioners were not qualified. These petitioners have therefore, filed these petitions and in addition to arguing that the decision of the authorities to disqualify the petitioners being wholly unreasonable and not supported by evidence on record, have also made an attempt to show that if the same parameters are applied, the other two agencies namely, Kota Dall Mills and Flora-O-Foods would also be disqualified.

Case of the respondents in brief:

11. The respondents however, contend that there were multiple defects and omissions in the technical bids of the petitioners. Their documents were not in order. The petitioners did not fulfill essential conditions of the tender. Their technical bids were examined by a committee, on the basis of whose report all the petitioners were disqualified. On the other hand, the private respondents were found qualified since they had requisite experience and expertise.

Contentions of the petitioners:

12. We would be adverting to individual objections of the respondent authorities and the defence of the petitioners on the question of each individual disqualification ground separately later. At this stage, however, we would take note of the general submissions made on behalf of all the contesting parties. On behalf of the petitioners, it was vehemently contended that none of the objections are valid. The authorities have only with a view to favouring the successful bidder Kota Dall Mills raised frivolous and baseless objections. It was further contended that mere technical or minor breach should not be viewed so seriously as to disqualify the tenderer, particularly, looking to the nature of tasks to be performed by a successful tenderer and the cost of such supplies involved. Reliance was placed on the decision of the Supreme Court in case of Poddar Steel Corporation v. Ganesh Engineering Works and others reported in , (1991) 3 Supreme Court Cases 273, to highlight that a minor technical irregularity in filling up the tender could be waived. Case of the petitioners was that none of the objections are substantial. In fact, most of the objections are baseless and rest of the objections are either highly technical or inconsequential. They point out that the price difference between the offer of the shortlisted tenderer and that of the petitioners for all seven zones would be close to Rs. 200 crores.

13. Counsel for the petitioners in this context highlighted before us that Flora-O-Foods had applied for all seven zones. Admittedly, the said agency did not have sufficient financial capacity to qualify for all the seven or even for four zones for which it had applied. The respondent authorities however, made a relaxation in favour of the said agency and allowed the agency to choose three zones out of seven for which it had applied to match the financial capability of the said agency. The emphasis of the counsel for the petitioners was that if such flexibility or leniency could be shown in case of Flora-O-Foods, the same approach could and ought to have been adopted while examining the tenders of the petitioners as well. They point out that the offer of Kota Dall Mills for zone-2 was accepted without any competition which was contrary to Government instructions.

14. Counsel for the petitioners also submitted that there was a huge price difference between the rates at which the different petitioners had offered to supply the same ready to cook food mixes as compared to Kota Dall Mills whose offers for zones 1, 2, 3 and 6 are being accepted. They point out that the combined difference of the total purchase price during the contract period between the rates as offered by the petitioners for different zones and those accepted by the authorities in case of Kota Dall Mills, would come close to Rs. 100 crores. When such significant financial implications were involved, the State Authorities ought to have adopted a reasonable and flexible approach instead of rejecting the bids of various otherwise qualified capable contractors on mere technical grounds.

Contentions of the respondents:

15. On the other hand, learned Advocate General for the Government authorities as well as counsel for the private respondents, opposed the petitions contending that the committee formed by the Government had examined the tender of each petitioner. Multiple defects were found which go to the root of matter. All the petitioners were therefore, rightly disqualified. It was contended that the petitioners did not possess the basic qualifications. Their financial bids therefore, were correctly not considered. With respect to the two qualified agencies namely, Kota Dall Mills and Flora-O-Foods, it was contended that after thorough scrutiny, the tender documents were found in order. They had provided all the necessary details and documents as per the tender notice. Price bid of Flora-O-Foods was considered for zones 1, 3 and 6 as per its choice. Such offer was compared with that of Kota Dall Mills. Finding that the offer of Kota Dall Mills was lower of the two, the same was accepted at the lowest rate specified by that agency for all the zones and suitable recommendations have been made. Regarding zone No. 2, it was clarified that the same procedure was followed in such case also. The Government policy does not preclude consideration of isolated offers in all cases. Kota Dall Mills would be awarded only four zones which is maximum that could be awarded under the terms of the contract. Three of the zones have yet not been allotted to any one. Learned Advocate General placed on record comparative chart between Kota Dall Mills and Flora-O-Foods for seven different zones which reads as under:

16. Reliance was placed on the following decisions by the learned Advocate General in support of his contentions:

1) In case of Michigan Rubber (India) Limited v. State of Karnataka and others reported in , (2012) 8 Supreme Court Cases 216, in which referring to various decisions of the Supreme Court including in case of Tata Cellular v. Union of India reported in , (1994) 6 Supreme Court Cases 651, the Supreme Court held that the Court would not normally interfere with the policy decision and in matters challenging the award of the contract by the State or public authorities.

2) In case of Ramana Dayaram Shetty v. International Airport Authority of India and others reported in , (1979) 3 Supreme Court Cases 489, in which the tenders were invited only from "registered IInd class hoteliers having at-least 5 years experience". The contesting tenderer had argued that no such grades are given to persons running hotel and restaurants and that therefore, such condition would be redundant. It was however, conceded that Bombay City Municipal Corporation does give different grades to hotels and restaurants and that therefore, he may be a registered IInd class hotelier. The Supreme Court held that the respondent No. 4 who did not satisfy such a condition would not be eligible for such tender. It was held that the action of the respondent authorities in accepting the tender was in contravention of such condition.

3) In case of Kanhaiya Lal Agrawal v. Union of India and others reported in , (2002) 6 Supreme Court Cases 315, in which it was held as under:

"6. It is settled law that when an essential condition of tender is not complied with, it is open to the person inviting tender to reject the same. Whether a condition is essential or collateral could be ascertained by reference to consequence of non-compliance thereto. If non-fulfillment of the requirement results in rejection of the tender, then it would be essential part of the tender otherwise it is only a collateral term. This legal position has been well explained in G.J. Fernandez vs. State of Karnataka & Ors., , 1990 (2) SCC 488."

4) In case of Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation and others reported in , (2000) 5 Supreme Court Cases 287, in which the conditions required the tender should be accompanied by demand draft or pay order or cash. The tenderer had instead filed a mere photocopy of the demand draft. It was held that the same would not be sufficient compliance.

5) In case of W.B. State Electricity Board v. Patel Engineering Co. Ltd. and others reported in , (2001) 2 Supreme Court Cases 451, to contend that even a mistake in filling up the tender documents would not be a valid defence, except in exceptional cases.

6) In case of Jagdish Mandal v. State of Orissa and others reported in , (2007) 14 Supreme Court Cases 517, in which it was observed as under:

"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:

i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;

OR

Whether the process adopted or decision made is so arbitrary and irrational that the court can say: the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached";

ii) Whether public interest is affected.

If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of state largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action."

General discussions:

17. From the above decisions, it appears well settled that the State or its agencies in the process of awarding contracts have the responsibility to act fairly and reasonably. This principal flowing from the development of administrative law and the principle of equality enshrined in Article 14 in the Constitution and right to carry on trade and business of one's choice under Article 19(1)(g) of the Constitution, is well laid down since long through series of decisions. At the same time, the judicial trend suggests a degree of self restraint and respect for the administrative decisions of the Governmental authorities. The Courts therefore, while conscious of their duty to prevent arbitrariness, illegality, unreasonableness or bias, do exercise writ jurisdiction, when facts are so presented; maintain a healthy respect for the decisions of the Government authorities which are not tainted by any of these elements and are purely based on objective assessment of materials on record. The judicial review in such matters is therefore, necessarily limited. The High Court would not substitute its assessment for that of the authority merely because another view is possible. In this context, two things immediately emerge from the decisions cited before us. Any condition of the contract which is fundamental or essential, the breach thereof is always seen as fatal. It is not even open or possible for the tender inviting agency to waive any such essential requirement. If so done, at the hands of the aggrieved party, the Court would certainly strike down the decision. As emphasised by the Supreme Court in case of Kanhaiya Lal Agrawal (supra), if an essential condition of tender is not complied with, it is open to the person inviting the tender to reject the same. At the same time, situations may arise where a minor deviation in non essential or ancillary condition may be spotted. It was in this context in case of Poddar Steel Corporation (supra), held that such minor technical irregularity can be waived. It was a case in which the tender notice required depositing earnest money with the tender either in cash or demand draft from State Bank of India. The contractor submitted the bankers cheque from Union Bank of India. It was held that such minor deviation could have been waived.

18. With these legal principles in mind, we may consider the individual defects noticed by the authorities in each case. While doing so, we may record that the Government had formed a technical evaluation committee, which had drawn detail report regarding the fulfillment of requirements by each contractor. Based on such report, affidavits have been filed elaborating the nature of the defects in each case. It appears that in such affidavits, some isolated defects though noticed by the committee have not been included. At the same time, the petitioners point out that some of the objections raised in the affidavits do not form part of the defects recorded by the committee. We would therefore, proceed on the basis of report of the committee and whatever the deviation inadvertently made in the affidavits would be ignored. In other words, if a defect recorded by the committee in its report even if not reflected in the affidavit in reply would be taken into consideration. Conversely, if the affidavit in reply contains objection which does not form part of the report, the same would naturally be ignored.

Consideration of individual issues:

19. We may now deal with case of each individual petitioner.

SCA No. 20388/2015

(Petitioner - Bihari Agro Foods Pvt. Ltd., had applied for zone-3 only)

I) Objection of the respondents:

Performance certificate submitted by the petitioner refers to Soya Flour/grit for use in take home ration which is not ready to cook food mixes or extruded fortified blended food. Further, the certificate of Chief Medical Officer of Health does not specifically state as regard supply of extruded fortified blended foods and instead refers to supply of peanut based supplementary food. The certificate also does not contain any details regarding quantity or value. Further, the certificate issued by the Chartered Accountant furnishes details of two financial years but in support of the certificate, purchase orders of only one financial year 2014-2015 are produced. No other supporting documents like agreement, etc. are produced.

Response of the petitioner:

Case of the petitioner is that performance certificate issued by Madhya Pradesh Agro Foods Industries Limited clearly states that the petitioner had supplied ready to cook food Soya flour/grit for use in take home ration during the financial year 2014-2015. Further as per clause 12(e) of the tender conditions, the petitioner only had to submit the proven track record of supplying ready to cook food mixes supplied as take home ration premix anywhere in India for any one year out of the last five years supported by certificate issued by the Chartered Accountant. Chartered Accountant - M/s. L.K. Maheswari & Co. had issued such a certificate for the year 2014-2015 which was valid compliance of the said condition. There was no requirement of attaching the copy of the agreement as referred to by the respondents.

Our conclusions:

Clause No. 7(p) required a bidder to submit a certificate to the effect that during one of the last five financial years, he has satisfactorily executed manufacturing or producing and supply of ready to cook food mixes supplied as take home ration premix. Such certificate would be issued by the Head of the Department. As per clause 12(e) of eligibility criteria, the bidder should have a proven track record of supplying the ready to cook food mixes supplied as take home ration premix anywhere in India for any one year in last five years which would be supported by the performance certificate as mentioned in clause No.-7(p). In response to such requirement, the petitioner had supplied performance certificate (at page-188 of the compilation) issued by Madhya Pradesh Agro Food Industries Ltd. which certifies that the petitioner had satisfactorily supplied "ready to cook food Soya Flour/grit for use in Take Home Ration during the financial year 2014-15 against our various purchase orders. The total materials supplied during this year was 5975.00 MT, valuing Rs. 23,41,82,000." The petitioner had also produced the certificate of the Chartered Accountant dated 10.8.2015 (at page-190 of the compilation) certifying that the petitioner is a manufacturer of ready to cook food mixes, produced and supplied for take home ration and had achieved turn over during the last two financial years as under:

Thus the petitioner had fulfilled the said requirements. Along with the certificate, it had also produced certain documents including various purchase orders from Madhya Pradesh Agro Food Industries Ltd. for ready to cook mixes used in take home ration including soya flour/soya grid, etc. The petitioner had also produced the certificate of Chief Medical Officer of Health (copy at page-189 of the compilation) certifying that the petitioner is having its factory at Noida, has been supplying peanut based supplementary food to the office of the Chief Medical Officer of Health and Secretary District Health and Welfare Samiti, Purulia. The certificate of the Medical Officer did not contain specifications of the food supplied or the value, is not a valid objection. The petitioner only had to submit proven track record of supplying the items in any one year in last five years. This was shown through various certificates. There was no requirement of attaching any copy of the agreement along with the certificate of Chartered Accountant. Since such requirement does not flow from the tender conditions, cannot be pressed in service to disqualify a contractor.

II) Objection of the respondents:

According to the respondents in respect of the petitioner's turnover certificate issued by the Chartered Accountant, details are furnished for two financial years, but in support thereof, purchaser orders of only one financial year 2014-15 are produced and no other documents like agreement, etc. are produced. The certificate of the Chartered Accountant also does not clarify for which project the turnover has been achieved.

Response of the petitioner:

The petitioner only had to submit the proven track record of supplying the specified food mix for any one year in the last five years which the petitioner did by producing the certificate of the Chartered Accountant for the year 2014-15 along with the purchase orders during such period. According to the petitioner, there is no requirement of attaching copy of agreement.

Our conclusions:

Clause 12(d) of the tender conditions requires that to be eligible, a bidder must have, for a particular zone, a minimum annual turnover for that respective zone as shown in appendix-D in any one of the last two financial years i.e. 2013-14 and 2014-15. As per clause 12(e), the bidder should have a proven track record of supplying such food items anywhere in India for any one year out of last five years which would be supported by the performance certificate as required in clause No. 7(p). As per clause 12(f), such turnover and its derivation must be certified by a Chartered Accountant on his letter head along with certified copies of purchase orders against the supply and other supporting documents and it should be substantiated with the help of satisfactory manufacturing and supplying performance certificate to that effect. Combined reading of clauses 12(d), 12(e) and 12(f), would show that the bidder had to have a minimum annual turnover matching his bid for a single zone which he should have achieved in any one year out of last two years and the bidder should have a proven track record of supplying such food items in any one of last five years. These requirements should be certified by a Chartered Accountant on his letter head along with certified copies of purchase orders and other supporting documents. In other words, therefore, when the Chartered Accountant had given a certificate to the petitioner to this effect and such certificate was accompanied by purchase orders, same should be sufficient compliance of this requirement. Without any further doubt about the genuineness of such certificate and accompanying documents, to object that such certificate was not accompanied by additional documents, would not be permissible. The further requirement of other supporting documents must be seen in light of the essential requirement of certificate from the Chartered Accountant accompanied by the purchase orders. "Such other documents" being in any case a general expression, in absence of any doubt about the certification of the Chartered Accountant and the supporting documents already on record, cannot be pressed in service to knock out otherwise a serious contender out of the contention. We have noticed that the certificate of Chartered Accountant certified that the petitioner, manufacturer of ready to cook food mixes, had produced and supplied take home ration and had achieved during the last two financial years turnover of Rs. 61.08 crores (rounded off) and Rs. 63.31 crores (rounded off) respectively. The figures of these turnovers had therefore, to be seen in light of certificate of the Chartered Accountant showing that the petitioner was a manufacturer of such items and supplied the same. It was thereafter, not necessary to further clarify or emphasise that such turnover was achieved through such products only.

III) Objection of the respondents:

As per the respondents in terms of clause 7(g) read with clause 12(i), the petitioner had to place on record the details of uncommitted production capacity matching with the requirement of the zone for which the bid was made. Since the petitioner had applied for zone No. 3 where the required quantity was 1412.74 metric tones per month, the petitioner had to produce proof of such uncommitted capacity issued by the appropriate authority preferably by the Government. As against this requirement, the petitioner merely produced a self declaration simply indicating its total monthly production capacity. According to the respondents, this was not in compliance of the tender conditions.

Response of the petitioner:

The petitioner had produced a self declaration (copy at page-145 of the compilation). Such declaration provides that the petitioner had capacity to manufacture 4000 metric tones of such items and such capacity is earmarked for ICDS Gujarat work out of its total manufacturing capacity. This would clearly indicate that the petitioner had earmarked and set apart such manufacturing activity for the project in question.

Our conclusions:

Condition 7(g) only requires a certificate issued by appropriate Government authority or Chartered Engineer indicating installed manufacturing capacity, where as condition No. 7(i) requires a self-certificate stating manufacturing capacity earmarked for ICDS work out of the total installed manufacturing capacity for all its units. The corresponding condition 12(i) requires a bidder to possess the required manufacturing capability to manufacture the required product as specified in this tender and further a bidder to have uncommitted production capacity of not less than 100% of the monthly requirement for bidding, per zone. It is further provided that a proof to this effect issued by the appropriate authority, preferably Government, should be enclosed with the bid. This condition must be seen in light of condition No. 7(i) which only insists on a self-certificate stating the manufacturing capacity earmarked for ICDS work out of the total installed manufacturing capacity for all its units. It can be easily appreciated that there would not be any appropriate authority who would certify a manufacturer's uncommitted manufacturing activity and it would have to be essentially the self declaration by the contractor itself that out of specified capacity of manufacturing, requisite manufacturing capability has been left uncommitted and would be exclusively dedicated to the work in question. No government authority would have any data of how much out of the total manufacturing capacity of a manufacturer has already been committed to its on going existing contracts and how much is left uncommitted. It is precisely for this reason that in condition No. 7(i), the Government required a self-certification by the bidder stating the manufacturing capacity earmarked for ICDS work. This earmarked capacity for ICDS work would have to be appreciated in light of condition No. 12(i) which required the bidder in order to qualify to have uncommitted production capability of not less than 100% of the monthly requirement for bidding per zone. The objection is therefore, in valid.

IV) Objection of the respondents:

Drawings of plant submitted by the petitioner were not clearly legible and did not appear to have been approved by Food and Drug Authority.

Response of the petitioner:

The petitioner contends that the original plan is of very large size. This had to be compressed to reduce the size in order to upload on the computer for e-filling of the bid which is the only manner in which the tender could have been filled. A copy of plan was physically also provided by the petitioner.

Our conclusions:

Clause 7(z) of the conditions requires the tenderer to file blue print/drawing of the plant approved by Food and Drug Authority from where the product as specified in the tender would be produced and supplied by the bidder. We do recognise that the maps of the site plant electronically provided by the petitioner were not entirely legible. The respondents may also have a legitimate doubt about the same being approved by the Food and Drug authority. Nevertheless, when it is pointed out that filing of e-tender required compression of the map of plant which was one of large size and the same resulted into compromising the quality of the drawing, it would have been easy for the respondents to procure a proper and better copy thereof. Merely raising doubt about whether the same was duly approved by the authorities or not was not sufficient. We may recall the contract value is running into several crores of rupees.

V) Objection of the respondents:

The respondents point out that under clause 12(c), the bidder should have its own functional and operative manufacturing unit well equipped with appropriate infrastructure. The bidder should also have all the valid licenses and certificates for the factory designated for supply. It was also provided that such unit should be in operation in at-least any one of the last two financial years. As per the respondents, the documents produced by the petitioner would show that consent under the Water Act and Air Act had been issued on 18.8.2015 which is valid for the period from 8.8.2015 to 31.12.2017. The license under Food, Safety and Standards Act, 2006 has been issued on 9.7.2015. According to the respondents, thus consent letter and licenses would demonstrate that the petitioner was not engaged in manufacturing activities for last two years and, therefore, clause 12(h) is breached which requires that the bidder should be an experienced manufacturer with minimum two years of experience in manufacturing the specified items. According to the respondents, the copy of license submitted by the petitioner showing that its factory is in production since 2003, would not be sufficient to establish the experience of two years in manufacturing ready to cook food mixes.

Response of the petitioner:

The tenderer complies with all the requirements including those specified in clauses 12(c) and 12(j) of the tender notice. As per clause 12(c), the petitioner had produced requisite certificates for the last three financial years. The petitioner had also submitted DIC registration license certifying that the petitioner has been in production since 2003. The certificates under Water Act and Air Act are issued periodically and the date of issue of the last certificate therefore, cannot be an evidence against the petitioner to hold that the petitioner does not have requisite experience.

Our conclusions:

Clause 12(c) requires that the bidder should have its own functional and operative manufacturing unit well equipped with appropriate infrastructure. It is further provided that "unit designated for supply of the Ready to Cook Food Mixes under this tender should have been in operation in atleast any one of the last two financial years i.e. 2013-14 and 2014-15." Clause 12(h) requires that the bidder should be experienced manufacturer of the ready to cook food mixes and not trader, with minimum two years of experience in manufacturing of the ready to cook food mixes. Clause 12(h) places emphasis on the bidder being a manufacturer and not a trader. It is in this context, it also prescribes a minimum experience of two years in manufacturing the specified items. In this clause, the requirement of achieving two years of experience is not specified during any period. As against this, clause 12(c) while insisting on the bidder to have its own functional and operative manufacturing unit, further requires that such unit should have been in operation in at-least any one of the last two financial years.

What is therefore, required under clause 12(c) and 12(h) of the tender conditions is that the bidder should be a manufacturer and not a trader, should own functional and operative manufacturing unit sufficiently equipped; that the bidder must have a minimum two years of experience in manufacturing and that the unit which the petitioner offers for supply should have been in operation in any one of the last two financial years. The petitioner had produced necessary documents in support of all these requirements. The certificate of Chartered Engineer (copy at page-143 of the compilation) certifies that the petitioner has specified machines installed and functional, suitable for manufacturing the specified goods and is currently in operation and has been in operation for three financial years 2012-13, 2013-14 and 2014-15. The petitioner had also produced license issued by District Industries Centre on 10.7.2012 authorising the petitioner to manufacture supplementary nutritional foods inclusive of Sukhadi, Sheera, Upma etc. This document records the initial date of such production as 10.4.2003.

It can thus be seen that there is evidence on record to suggest that the petitioner had been in the business of manufacturing such items since several years and at any rate as certified by the Chartered Engineer for last three financial years. This would be sufficient compliance with said clause 12(c) read with clause 12(h). Merely because certain certifications and consent from the authorities such as Pollution Control Board and other statutory bodies carry the date of 2015, would not be sufficient to hold that prior to such dates, no such clearances were issued or that manufacturing carried out by the petitioner was without the aid of such statutory compliance. It is not unknown that certain clearances and licenses require periodic checkup and are therefore, to be renewed from time to time. More complex the production process, greater the possibility of environmental and pollution requirements, more periodic would be the process of checking certification by the statutory authorities. Merely because the petitioner produced only latest of such documents, would not ipso facto mean that previously there were no such clearances granted. The tender document did not require the petitioner to file all such documents for the entire life of its manufacturing activities. In absence of any such specific requirement, to hold that the petitioner did not comply with the mandatory statutory requirements, merely by inference, was simply not permissible.

VI) Objection of the respondents:

Case of the respondents is that clause 7(o) required the bidder to file self declaration in the form of affidavit containing specific details. This affidavit required the bidder, as per Annexure-C to the tender, to make the following declaration "I understand that our bid will be liable to be rejected and in case contract is given, the same will be liable to be rescinded and the same will be without prejudice to any other consequences (including forfeiture of EMD and/or Security Deposit) to which the concerned manufacturer will be exposed for mis-representation and misleading the Commissioner". According to the respondent, the petitioner deliberately filed an affidavit which omitted the expression "(including forfeiture of EMD and/or Security Deposit)". According to the respondents, this is a vital intentional omission and would therefore, disqualify the petitioner.

Response of the petitioner:

This was wholly unintentional typographical error having no material impact on the qualification of the bidder. In any case, when the petitioner agreed to accept all the tender conditions, it would also include forfeiture of EMD under certain circumstances.

Our conclusions:

It is undisputed that the affidavit that the petitioner filed as per the format as Annexure-C missed out group of words "(including forfeiture of EMD and/or Security Deposit)". We see no mala fide intentional design on part of the petitioners to avoid such condition and appears to be a plaint typographical oversight. Further, while filling up the tender, it agreed to and abide by all the tender conditions which would include forfeiture of EMD or security deposit, if the petitioner breached any of the conditions and withdrew from the tender prematurely. This self declaration on affidavit on behalf of the petitioner was only for additional emphasize. This objection is also therefore, overruled.

SCA No. 20349/2015

(Petitioner - Maharashtra Mahila Sahkari Gruh Udyog Sanstha had applied for zones No. 1 and 4)

I Objection of the respondents:

According to the respondents, the petitioner being a cooperative society other than a Multi-State Cooperative society, in terms of clause 12(a) and 12(g), was not qualified. According to the respondents only a Multi-State Cooperative society could participate in such tender and not a society which is not a Multi-State cooperative society.

Response of the petitioner:

The petitioner disputes such interpretation of clauses 12(a) and 12(g). The petitioner as a cooperative society, like any other legal entity would be duly qualified subject to fulfilling other conditions. There is no reason why such artificial distinction should be made between a cooperative society which is a Multi-State cooperative society and the rest.

Our conclusions:

Clause 12(a) provides that a bidder can be an individual, sole proprietary or partnership firm, private or public limited company, co-operative society, co-operative federation, public undertaking or any other legal entity who is manufacturer or producer of extruded fortified blended food. On the other hand, clause 12(j) requires a bidder to submit certified copy of the Central and State sales tax, VAT registration certificates, PAN cards, partnership deed in case of partnership firm, constitution of Memorandum and Article of Association in case of registered company, registration certificate as a Multi-State cooperative society along with bye-laws in case of a cooperative society or like documents as the case may be. These clauses 12(a) and 12(j) have to be interpreted harmoniously. Clause 12(a) prescribes that a bidder can be an individual or an artificial person. In the process this concept of artificial person is elaborated by providing that a bidder can be a sole proprietary, a partnership firm, private or public limited company, a co-operative society or a cooperative federation, or even a public undertaking or any other legal entity. Thus all natural and juristic persons would be entitled to bid as long as per clause 12(a), is original manufacturer or producer of extruded fortified blended food. Thus emphasis in clause 12(a) is and is conveyed in no uncertain terms that all individuals, natural and artificial personalities, would be qualified to bid as long as it happens to be a manufacturer (and not a trader). In the process, reference is also made unmistakably to a cooperative society. Thus the eligibility criteria in clause 12(a) in no manner knocks down or disqualifies a cooperative society which is not a Multi-State cooperative society.

Clause 12(j) on the other hand, prescribes the documents to be submitted by the bidder and requires certified copy of the Central and State sales tax or VAT registration certificates, PAN cards, partnership deed in case of partnership firm, constitution of Memorandum and Article of Association in case of registered company. In context of Multi-State cooperative society, it requires registration certificate as such. This clause further refers to "like documents as the case may be." Therefore, when clause 12(j) refers to a registration certificate as Multi-State Cooperative Society along with bye-laws in case of a cooperative society, the same cannot be seen as disqualifying a society other than Multi-State cooperative society from bidding. The expression "in case of a cooperative society" therefore, must be seen in light of preceding requirement of a registration certificate as a Multi-State cooperative society and such a requirement would arise only in a case where cooperative society itself is a Multi-State cooperative society. The further expression "or like documents as the case may be" is sufficiently wide and a cooperative society which is not a Multi-State cooperative society could therefore, produce certificate of registration with the competent State authority. Clause 12(a) provides for qualification of any person, individual or artificial, to be qualified as long as he is original manufacturer or producer of specified food items. Clause (j) merely requires filing of documents concerning existence of such natural and juristic person. It is therefore, that the requirement of filing Pan cards, partnership deeds, Memorandum of Association of company etc. have been insisted upon. Such requirement of filing documents cannot be a ground to disqualify a legal entity which is otherwise qualified in terms of clause 12(a).

The issue can be looked from yet another angle. Clause 12(a) qualifies one and all be it, an individual, sole proprietary, partnership firm, private or public limited company, co-operative society or federation or public undertaking or any other legal entity as long as it is original manufacturer or producer. There is no earthy reason why through back-door by prescription provided in clause 12(j), the authorities would disqualify one out of all these several entities and make an artificial distinction between a cooperative society which is a Multi-State cooperative society and one which is not. Even in terms of Articles 14 and 19(1)(g), if the interpretation of the respondents is accepted, this condition would be rendered invalid since it draws an artificial line of distinction, makes a hostile discrimination between two similarly situated entities. There is no reason cited before us why when the State authorities found all real and juristic persons qualified to apply which would include an individual or proprietary concern, a private or public limited company, it thought that a cooperative society which is not a Multi-State cooperative society is too incompetent to carry out the contract. In absence of any valid reasons, we would not readily accept the interpretation which would lead to such a result clearly rendering the condition itself open to criticism of hostile discrimination. The contention of the Advocate General that the petitioners cannot now challenge the conditions and at any rate have not challenged such a condition and, therefore, it is not open for us to strike it down, is not a valid argument. The petitioners are not asking us to strike down the condition nor are we in the process of declaring such a condition bad in law. We are only adopting an interpretation which is far more reasonable and which also interprets two terms harmoniously and in the process saves the condition from the vice of arbitrariness and hostile discrimination.

II Objection of the respondents:

According to the respondents, the contractor must have experience of minimum two years as a manufacturer as per clause 12(h) of the tender conditions and the factory should be in operation for at-least two years as per clause 12(c). In case of the petitioner, the factory license has been issued originally in the name of M/s. Sagar Foods which is substituted in the name of the petitioner only in 12.3.2014. Plant and factory building were approved on 12.3.2014. License was issued on 14.7.2015 and, therefore, the petitioner did not fulfill the requisite criteria of clauses 12(c) and 12(h).

Response of the petitioner:

In case of unit No. 1 of the petitioner, the petitioner had entered into a lease agreement with M/s. Sagar Foods for using its manufacturing facilities and later on had taken over the factory premises and therefore, license was amended with effect from 12.3.2014 in the name of the petitioner. The original license was issued on 31.12.2010 for unit No. 1.

In case of unit No. 2, license was issued initially with validity upto 31.12.2012. The same is renewed from time to time. The petitioner had carried out expansion of factory and plant and, therefore, fresh approval was granted on 12.3.2014. The license has been issued since 2011-2012. The factory and boiler licenses are renewable time to time and would not demonstrate that the factory was not in operation at all.

Our conclusions:

We have discussed this issue earlier at considerable length in case of Bihari Agro Foods Pvt. Ltd. (Special Civil Application No. 20388/2015). We would not repeat the entire discussion. However, with respect to this petitioner, we notice that there was sufficient evidence to establish that the petitioner was manufacturing such products since several years and in any case since more than two years including financial years 2013-14 and 2014-15, which would satisfy the combined requirements of clauses 12(c) and 12(h). We notice that the Commissioner of Integrated Child Development Services, State of Maharashtra, had issued certificate dated 12.8.2015 certifying that the petitioner had been manufacturing and supplying supplementary nutrition food to anganwadi centres in Maharashtra i.e. extruded fortified blended Shira, Upama, Sattu and Sukhadi for ICDS scheme of State of Maharashtra for the period of 2010-11 to 2014-15. This certificate also specifies the quantity purchased from the petitioner for various districts in Maharashtra and its value, which shows that between 1.6.2010 to 31.3.2011 the petitioner had supplied such items valued at Rs. 74.79 crores (rounded off), from 1.4.2011 to 31.3.2012 the value came to Rs. 144.04 crores (rounded off), from 1.4.2012 to 31.3.2013, it came to 146.30 crores (rounded off), from 1.4.2013 to 31.3.2014 it came to Rs. 137.18 crores (rounded off) and from 1.4.2014 to 31.3.2015 the value came to Rs. 90.38 crores (rounded off). In view of such evidence on record, to link the experience requirement to the date of issuance of certain licenses, was wholly erroneous. We have already discussed this aspect in dealing with earlier petition.

III) Objection of the respondents:

As per clause 7(aa)(c), bidder was required to submit notarized copies of VAT registration/CST registration certificate. VAT registration certificate produced by the petitioner mentions the petitioner as reseller, a retailer, whole seller as against the term nature of business. Regarding CST certificate, the place of business is shown to be within the State of Maharashtra.

Response of the petitioner:

The petitioner was required to submit either VAT registration or CST registration. The petitioner has submitted both. In case of sales outside Maharashtra State only, CST is applicable which is also considered by the evaluation committee which shows that the petitioner is a contractor.

Our conclusions:

Clause 7(aa)(c) requires the bidder to submit notarized copies of VAT registration/CST registration certificate. When the petitioner has provided both, it would be sufficient compliance of such requirement. To interprete one such certificate as to imply that the petitioner is not the original manufacturer, was wholly erroneous. There was ample other evidence on record, to which the respondents have not even raised any serious dispute, to establish that the petitioner was engaged in the manufacturing activity directly and was not only a trader. Reference to CST registration certificate, we believe has been made only to imply that the petitioner is not a Multi-State cooperative society. This aspect we have already dealt with earlier and no further remarks are therefore, necessary.

IV) Objection of the respondents:

Clause 7(aa)(c) requires production of a valid license under the Food Safety and Standards Act, 2006. Certificate of one of the two units produced by the petitioner does not fulfill the experience requirement under clause 12(h).

Response of the petitioner:

Case of the petitioner is that the technical evaluation committee has not raised this contention and has categorically approved the license produced by the petitioner. Such objection is therefore not valid.

Our conclusions:

Since this objection does not flow from the conclusion of the technical evaluation committee, the same cannot be permitted through the affidavit in reply.

V) Objection of the respondents:

As per clause 7(aa)(j), the bidder would have to provide a consent to establish and to operate the manufacturing unit for the food item in question issued by respective State Pollution Control Board. According to the respondent such consent was issued on 19.8.2015 under the Water and Air Act. Since such consent is granted only on 19.8.2015 and in case of unit No. 2, validity period is not stated, requirements of clause 12(h) and 7(aa)(j) have not been complied.

Response of the petitioner:

The petitioner contends that consent under the Water and Air Act has been submitted for both the units. Same have no relation to the eligibility clause contained in 12(h). Clause 7(aa)(j) merely requires production of such document which has been duly complied with.

Our conclusions:

Clause 7(aa)(j) requires filing of document in the nature of a consent to establish and operate the manufacturing unit for specified items from respective State Pollution Control Board. Admittedly, the petitioner has filed such documents. This condition does not require that all previous such consents should also be filed. To link any current documents with the requirement of manufacturing experience contained in clause 12(h), is wholly impermissible. There is voluminous material to suggest that the petitioner has been a direct manufacturer since long. Without there being any reason to discard such material, to read the date of issuance of consent in order to overwhelm all such materials, is a clear error of interpretation on part of the respondent authorities.

VI) Objection of the respondents:

As per clause 7(i), the bidder would have to file self-certificate stating manufacturing capacity earmarked for ICDS work. The petitioner submitted self certificate mentioning the production capacity earmarked for ICDS work of 22.500 metric tones per annum which is less than the combined production capacity required under zones 1 and 4 for which the petitioner has applied. For such zones, monthly required production capacity was 1334.82 metric tones and 1700.61 metric tones respectively and a total of 3035 metric tones between the said two zones.

Response of the petitioner:

The petitioner has other uncommitted manufacturing capacity. In any case, the petitioner's commitment of 22.500 metric tones of its manufacturing activity per year for ICDS work was more than sufficient to cover individually zone No. 1 or zone No. 4. The petitioner therefore, could not have been disqualified for both the zones. The petitioner would point out that when the question of financial capability of Flora-O-Foods came to be reckoned in similar background and it was found that it did not have enough financial ability to compete for all four zones for which it had applied, the said agency was allowed to pick three zones so as to bring the offer within its financial capability.

Our conclusions:

It is true that as per its own certificate, the petitioner's uncommitted manufacturing capacity which the petitioner undertook to dedicate exclusively for ICDS work was less than the combined requirements of zones No. 1 and 4 for which the petitioner had applied. The petitioner's contention that it had other uncommitted capacity which could be dedicated to this work cannot be accepted since this does not form part of the declaration made by the petitioner in the tender documents. The petitioner was required to state and certify such uncommitted capacity which would be earmarked exclusively for the purpose of ICDS work. However, it is undisputed that the petitioner's uncommitted capacity which it dedicated to this work of 22.500 metric tones per annum was greater than the requirement individually for both zones No. 1 as well as 4. If therefore, Flora-O-Foods could be granted consideration by allowing it to chose the lesser number of zones for bidding even when its financial capability was insufficient to cover all zones for which bid was made, there is no reason why the petitioner also could not have been granted such consideration. Even if the respondents did not want to waste any time in calling individual tenderers for such purpose, the least that the respondents could have done was to qualify the petitioner for any one of the two zones without leaving such a choice to the petitioner. In any case, to hold the petitioner ineligible for both the zones on this ground was wholly impermissible.

VII) Objection of the respondents:

As per clause 7(o), a bidder was required to submit affidavit in format at Annexure-C to the tender documents which required besides other, a declaration that in certain cases there would be "forfeiture of EMD and/or Security Deposit". As against this, the declaration made by the petitioner did not contain the expression "security deposit", but what the respondents contend a deliberate change, was typed as "society deposit".

Response of the petitioner:

This is only a typographical error. There is no attempt to tamper with the document. Even otherwise the petitioner has accepted all the tender terms which would include forfeiture of security deposit in case of breach on part of the petitioner.

Our conclusions:

We have earlier dealt with similar contention of the respondent in earlier petition in case of Bihari Agro Foods Pvt. Ltd. (SCA No. 20388/2015). In the present case the omission is even more innocuous. Instead of "security deposit", it is typed as "society deposit", an apparent typographical error. We do not think such typographical error of one word could render the otherwise qualified tenderer disqualified. Even otherwise, the petitioner has already submitted to all tender conditions which would include forfeiture of security deposit in case of breach on part of the petitioner.

VIII) Objection of the respondents:

Clauses 7(e) and 12(j) require the petitioner to submit turnover certificate along with certified copies of purchase orders and other supporting documents. The bidder would also submit a performance certificate of a regular and formal contract for supplying at-least the quantity and value equal to required turnover of applied zone. These conditions were not satisfied.

Response of the petitioner:

The petitioner points out that technical evaluation committee has found that the performance certificates submitted by the petitioners are in order. This objection is therefore, an afterthought.

Our conclusions:

When the objection raised in the affidavit in reply is not forming part of the comments of report of the technical evaluation committee, the same would clearly be an exercise in afterthought and would not be permissible.

IX) Objection of the respondents:

As per clause 7(r), the bidder had to submit credit worthiness certificate of minimum 15% worth of the estimated tender value. The respondents have objected to the certificate produced by the petitioner.

Response of the petitioner:

The petitioner would point out that such objection was not raised by the evaluation committee and does not form part of this report.

Our conclusions:

When the objection raised in the affidavit in reply is not forming part of the comments or report of the technical evaluation committee, the same would clearly be an exercise in afterthought and would not be permissible.

X) Objection of the respondents:

As per clause 7(j), the bidder would have to have in-house quality control facilities, its own machinery and quality control laboratory equipped with appropriate laboratory equipments for testing. As per the respondents, the petitioner merely submitted a list of instruments and list of personnel engaged in laboratory without specifying technical qualifications. Nothing is produced to show that the petitioner has such in-house quality control facilities, its own machinery and equipments.

Response of the petitioner:

The petitioner had submitted a list of equipments of the laboratory, list of technically qualified personnel along with their qualifications. The petitioner has produced necessary documents to show that it has duly equipped laboratory as per the parameters prescribed in the Food Safety and Standards Act.

Our conclusions:

Clause 7(j) required a bidder to have an in-house quality control facilities, its own machinery and quality control laboratory equipped with appropriate laboratory equipments for testing the parameters prescribed in Food Safety and Standard Act (Prevention of Food Adulteration Act). The petitioner had produced such documents in support of the claim (copy at page-478 of the compilation) including the details of instruments available for chemical and microbiological laboratory respectively and the technically trained personnel. Merely stating that the petitioner did not have qualified trained staff would not be sufficient.

XI) Objection of the respondents:

As per clause 7(q), the bidder would have to submit a turnover certificate showing his turnover of ready to cook food mixes manufactured, produced and supplied as take home ration premixes during the last two financial years. Against such requirement, the petitioner produced purchase orders and supply orders which were in Marathi. Summary in English does not tally with the contents of the purchase orders. The purchase orders cannot be considered as certificates as required under clause 7(q).

Response of the petitioner:

The petitioner has produced turnover certificates. Nothing is pointed out as to what were the discrepancies between the original and the translated summary.

Our conclusions:

Merely because the documents of the petitioner came in Marathi language in which it would be issued being the region where the petitioner is having his business, would not be a ground to disqualify a person. It is not even the case of the respondent that such purchase orders were not genuine. No discrepancies are elaborated in such purchase orders in the English summary. Additionally, the petitioners had also produced certificate issued by their Chartered Accountant (copy at page-481 of the compilation) certifying that the petitioner is a manufacturer and supplier of ready to cook food premixes and its turnover during last two financial years is as under:

SCA No. 20413/2015

(Petitioner-Venkateshwara Mahila Audhyogik Utpadak Sahakari Sanstha Ltd. had applied for zones No. 3, 5 and 7)

I) Objection of the respondents:

The petitioner is a cooperative society but not a Multi-State Cooperative society as in case of Maharashtra Mahila Sahkari Gruh Udyog Sanstha (SCA No. 20349/2015). The petitioner is therefore, not qualified in terms of clause 12(a) and 12(g) of the tender documents.

Our conclusions:

We have given our detailed consideration to this contention earlier and it is therefore, not necessary to repeat the discussion.

II) Objection of the respondents:

Clause 7(aa)(j) requires filing of consent to establish and operate the manufacturing unit issued by State Pollution Control Board. As per the respondents, certificate dated 23.5.2010 submitted by the petitioner only mentions establishment of the unit and not actual operation. Further as per clause 12(h), the bidder must have experience of manufacturing the specified food items. Certificate produced by the petitioner is in reference to therapeutic food and not extruded fortified blended food. The consent to operate issued by Maharashtra Pollution Control Board is dated 5.3.2014 which means the unit would be operational only after that date, implying deficient experience. Like-wise, the license issued by Food Safety and Standards Authority of India is dated 14.3.2014 which would also imply insufficient experience. The respondents refer to certificate of District Industries Centre dated 7.11.2012 that the production activity has commenced on 7.11.2012, but point out that this is merely an application of the petitioner and certificate of District Industries Centre is dated 6.1.2014.

Response of the petitioner:

Regarding deficiency of certificate dated 5.3.2014 of the Maharashtra Pollution Control Board, it is pointed out that no such objection has been raised by the technical evaluation committee. The petitioner points out that several documents have been produced to establish the manufacturing experience of the petitioner of more than two years. However, the respondents have overlooked such documents.

Our conclusions:

Ignoring the objections not raised by the technical evaluation committee, we may recall that in earlier discussion, we have not accepted the formula of respondents in treating the experience of entity only from the date of certificate issued by the Pollution Control Board or Food Safety and Standards Authority of India. Without there being anything additional, other evidence on record cannot be ignored only on that basis. Since as recorded, such certifications have periodicity, the last certificate cannot be taken to be the date of issuance of first certificate. In this context, we notice that the petitioner has produced earlier certificate of Pollution Control Board dated 23.8.2015 (copy at page-502 of the compilation), agreement between the petitioner and State of Maharashtra for supply of such items dated 28.4.2010 (copies at pages No. 504 to 517 in the compilation), supply order dated 31.5.2011 issued by the Commissioner, Integrated Child Development Services (copies at pages No. 518 to 520 in the compilation), certificate of experience given by Commissioner of Integrated Child Development Services, Maharashtra dated 12.8.2015 (copy at page No. 582 in the compilation), copy of ISO 9001 certificates from 22.11.2010 (copies at pages No. 583-585) and such other documents, all pointing to establishment and operation of manufacturing unit since long.

In view of such overwhelming materials on record, the respondents committed a serious error in referring to the dates of the certificates or consent orders issued by the Pollution Control Board and such other agencies, to hold that the petitioner had insufficient experience. When there was overwhelming other evidence on record, such conclusion was wholly impermissible that too on the basis of date of issuance of such certificates.

III) Objection of the respondents:

Clause 7(m) requires a bidder to supply copies of latest balance sheet and profit & poss accounts for the period for which experience and turnover have been claimed. In case for the year 2014-15, if such accounts are not finalized, the bidder could submit provisional balance sheet and profit and loss account. In terms of clause 12(d), a bidder must have a minimum annual turnover derived from manufacturing or producing extruded fortified blended food. According to the respondents, the petitioner has submitted consolidated balance-sheet for the financial year 2013-14 without showing what portion of the turnover was derived from extruded fortified blended food. For the financial year 2014-15, the petitioner did not submit any balance-sheet and profit and loss account.

Response of the petitioner:

The tender conditions only require submission of audited balance sheet and profit and loss account for one financial year. The petitioner however, submitted the same for financial years 2012-13 and 2013-14. There was no insistence that annexure to the balance-sheet should also be filed. The objection that the balance-sheet did not indicate break-up of the turnover is not valid since the balance-sheet is not supposed to carry such details.

Our conclusions:

Clause 7(m) requires a bidder to submit copies of the latest balance sheets and profit & loss accounts for the period as required in the eligibility criteria, certified by a Chartered Accountant. This reference to the period as required in the eligibility criteria has to be seen in the background of other conditions since it is not specified in this condition No. 7(m). If the reference of this condition is to the experience requirement, in terms of clause 12(d), the minimum annual turnover prescribed would have to be satisfied in any one of the two financial years 2013-14 and 2014-15. In clause 12(e), a bidder would have to have a proven track record of supplying such items in India in any one year in last five years. In terms of clause 12(h), a bidder should have experience of manufacturing such items for a minimum of two years. Thus these conditions even read simultaneously nowhere provides that the bidder must have experience of manufacturing and supplying such items necessarily in both the year 2013-2014 and 2014-15. If therefore, the petitioner filed the balance-sheet and profit and loss accounts for the financial year 2012-13 and 2013-14, there was no breach of the requirement of clause 7(m) which, as noted above, required latest balance-sheet and profit and loss account for the period as required in the eligibility criteria. It is true that the respondents later on clarified and relaxed this requirement by providing that if accounts are finalised for the year 2014-15, even provisional balance-sheet and other related documents would suffice. Further, clause 7(m) does not require giving of break-up of manufacture.

IV) Objection of the respondents:

Clause 7(q) required the bidder to submit a turnover certificate. Clause 12(d) prescribed the minimum annual turn over matching with the bid of the petitioner for a particular zone in at-least one of the last two financial years. Such turnover must be derived from manufacturing or producing of extruded fortified blended food only. The petitioner produced two certificates of turnover by the Chartered Accountant for last four years. According to the respondents, the figures of turnover in these two certificates are not matching.

Response of the petitioner:

The requirement was to produce such certificate duly certified by the Chartered Accountant. The petitioner had accordingly submitted the certificates. There are no deficiencies. These certificates provide details of overall turnover of the petitioner's unit and the turnover in respect of extruded fortified blended food under the ICDS scheme to the State of Maharashtra respectively.

Our conclusions:

We notice that in the certificate dated 13.8.2015 (copy at page-588 of the compilation), the Chartered Accountant has certified turnover of the petitioner stating that the petitioner has been manufacturing and supplying supplementary nutritional food upto anganwadi centres, i.e. extruded fortified blended food Shira, Upma Sattu and Sukhadi all premixes for ICDS scheme for State of Maharashtra during the year 2010-11 to 2014-15. The relevant portion of the total turnover of such business during the said years was certified as under:

On the other hand, at page-587 of the compilation, his another certificate also dated 13.8.2015 is produced in which the Chartered Accountant has specified the turnover of the petitioner through supply of extruded fortified blended food to ICDS scheme in the State of Maharashtra during the said period. Relevant portion of this certificate reads as under:

"Their turnovers for supply of Extruded Fortified Blended food i.e. Shira (premix), Upma (premix), Sattu (premix) and Sukhadi (premix) to Integrated Child Development Scheme of State of Maharashtra during the preceding four years are as given below:

This is further certified that the above turnover is part of the total turnover declared by Venkateshwar Mahila Audyogik Utpadak Sahakari Sanstha Ltd., Udgir in balance sheet."

It can thus be seen that certificate at page-588 refers to total turnover of the petitioner society whereas certificate at page 587 is concerning the petitioner's turnover from out of supply of extruded fortified blended food to ICDS scheme in Maharashtra during the same period. For example for the financial year 2012-2013, the petitioner's total turnover was Rs. 238.58 crores (rounded off) out of which Rs. 233.53 crores (rounded off) represented its supply for extruded fortified blended food to ICDS scheme. The figures for the financial year 2013-14 are Rs. 205.58 crores (rounded off) and Rs. 178.72 crores (rounded off) respectively. There is thus no discrepancy between these figures or the certificates issued by the Chartered Accountant.

SCA No. 20388/2015

(Petitioner - Mahalaxmi Mahila Gruh Udyog and Bal Vikas Bahuudeshya Industrial Cooperative Society Ltd., Nanded had applied for zone No. 6)

I) Objection of the respondents:

As per the respondents, the petitioner is a cooperative society but not a Multi-State Cooperative society and therefore, is not qualified in terms of clause 12(a) and 12(j) of the tender documents.

Our conclusions:

We have already dealt with this issue elaborately in earlier portion of this judgment. Such discussion is therefore, not repeated.

II) Objection of the respondents:

As per section 12(h), the bidder should have experience of manufacturing the ready to cook food mixes for a minimum period of two years. The certificate of District Industries Centre has been issued only on 4.4.2014 and therefore, does not indicate two years of experience. Consent to operate has been granted under the Water and Air Act only on 18.3.2015. License is issued by the Food Safety and Standards Authority of India only on 16.2.2015. License under the Factories Act has been issued on 10.6.2014. According to the respondents these documents would demonstrate that the petitioner did not have the minimum required two years of experience for manufacturing the specified items.

Response of the petitioner:

The petitioner however, contends that these were only additional documents produced by the petitioner. There was sufficient other evidence to establish the requirements. The petitioner has been supplying such items to the Government of Maharashtra since June 2010. The certificate issued by the Government has been produced. The purchase orders for the financial year 2013-14 have also been produced. Initial certificate of District Industries Centre was issued on 1.8.2010. License by Food Safety and Standards Authority of India was issued in the year 2013 and subsequently it was renewed. The factory license was issued in the year 2010 and was renewed from time to time.

Our conclusions:

We have already discussed this issue in the earlier portion of the judgment. If there is enough evidence to demonstrate that the petitioner had been carrying out manufacturing activities since long, it would not be possible to disqualify such an agency on the ground of insufficient experience referring only to the date of latest certificates issued by various authorities. As noted, such certificates require periodic renewal and up-gradation. Merely because the petitioner produced the latest certificate would not mean that earlier manufacturing activity was not being carried on or being carried on in defiance of law.

In this context, we notice that at page 312 of the compilation, a copy of license issued under the Food, Safety and Standards Act 2006 is annexed which specifies the date of issue/renewal as 22.4.2013. Merely because the current license is issued for the period 1.1.2015 to 31.12.2017, would not mean that the factory was not in existence earlier.

(24.2.2016)

The petitioner has also produced various supply orders issued by the Women and Child Welfare department, State of Maharashtra, for supply of extruded fortified blended food under ICDS scheme for the year 2012-13. The petitioner had also produced Chartered Engineer's certificate dated 28.7.2015 certifying that the petitioner had started doing manufacturing operation in the financial year 2010-11.

III) Objection of the respondents:

As per condition 7(m), the bidder is required to submit copies of the latest balance sheets and profit & loss accounts for the financial year 2013-14 and 2014-15. As per clause 12(d), a bidder must have a minimum annual turnover derived from manufacturing or producing of extruded fortified blended food. As per clause 12(g), a bidder would have to submit copies of audited balance sheet and profit & loss accounts for one financial year out of the last two, duly certified by the Chartered Accountant. According to the respondents against such requirement, the petitioner did not produce audited balance-sheet and profit and loss account but produced consolidated financial statements of the said two financial years 2013-14 and 2014-15. If such balance-sheet and profit and loss account were produced, it would have been possible to ascertain the petitioner's turn over from manufacturing extruded fortified blended food. The statement for the financial year 2013-14 is incomplete and does not show the turnover from such production. Also for the financial year 2014-15, the break-up of turnover from production of extruded fortified blended food is not indicated.

Response of the petitioner:

The petitioner had produced audited balance-sheet and profit and loss account as required under the tender notice. Merely because there is a note regarding the consolidated financial statement, the condition cannot be stated to have been breached. The balance-sheet and profit and loss account for all units of the petitioner society have been consolidated and hence the note. The tender conditions never required that the turnover from production of extruded fortified blended food must be reflected in the balance-sheet or profit and loss account which even otherwise would not be so reflected.

Our conclusions:

The petitioner has admittedly filed the profit and loss account and balance-sheet for the relevant years. The footnote stating that the same is consolidated for all units of the petitioner would not mean that the documents were not in order. It is not even the case of the respondents that the other documents did not contain the requisite details. The grievance that the profit and loss account did not reflect separately the sales of the petitioner through manufacturing of the said food product is also not valid. Since the profit and loss account would not contain such microscopic details. Clause 7(m) required a tenderer to file the latest balance-sheet and profit and loss account for the period as required in the eligibility criteria. Clause 12(d) required a bidder to have minimum annual turnover matching with the bid for the respective zone in any one of the two financial years 2013-14 or 2014-15. Such turnover must be derived from manufacturing or producing ready to cook food mixes. We do not see breach of any of these conditions. In particular, clause 12(d) never required that proof of minimum annual turnover from production of such food items must come from the balance-sheet. As noted, ordinarily a balance-sheet would not contain such break-up. If therefore, the petitioner supplied such evidence through other sources, condition No. 12(d) cannot be stated to have been breached.

IV) Objection of the respondents:

Clause 7(q) requires the bidder to submit a turnover certificate for last two financial years certified by a Chartered Accountant. Clause 12(d) refers to bidder's annual turnover from production of the specified food. According to the respondents, it was not possible to verify from the financial statements produced by the petitioner, the turnover derived from manufacturing such items. The financial statements do not specifically point out income derived from manufacturing and producing extruded fortified blended food. It is not possible to correlate the turnover certificate produced by the Chartered Accountant with the financial statements submitted by the petitioner.

Response of the petitioner:

There is no breach of clause 7(q) nor there is any discrepancy between the two sets of documents since the balance-sheet and the statement of account would provide figures of total turnover whereas the certificate of Chartered Accountant was specific on the turnover of the petitioner derived from manufacturing extruded fortified blended food.

Our conclusions:

Clause 7(q) merely required a bidder to submit a certificate showing his turnover of ready to cook food mixes manufactured and produced and supplied as take home ration premixes during the last two financial years i.e. 2013-14 & 2014-15 which would be certified by a Chartered Accountant. This has been duly done. It is not even the case of the respondents that no such certificate was produced. Clause 12(d), as noted, requires that for a bidder to be eligible for a particular zone, it must have a minimum annual turnover matching with the requirement of zone in question for any one of the two financial years i.e. 2013-14 and 2014-15 and that such turnover should have been derived from manufacturing or producing of ready to cook food mixes. This condition nowhere requires that proof of such turnover must come from the financial statements. In fact, it is clause 7(q) which requires that such turnover should be certified by a Chartered Accountant. Advisedly, therefore, in clause 12(d), no additional condition has been imposed that such turnover must be reflected in the balance-sheet which as we have recorded more than once, would ordinarily not provide such break-up. The company which is engaged in multiple manufacturing activities may derive its income and turnover from different sources. The preparation of balance-sheet does not mandate that break-up from different sources must be specified in such a statement. It is precisely for this reason that clause 7(q) requires certification of turnover derived by the petitioner through manufacture and production of such food items which certificate admittedly, as noted, in the present case had been produced. The contention that figures in the financial statements of the petitioner society and those given by the Chartered Accountant in his certificate dated 13.8.2015 do not match, is also not a valid objection. The Chartered Accountant in the said certificate gave details of the petitioner's turnover of supply of ready to cook food to Integrated Child Development Scheme during three financial years 2012-13, 2013-14 and 2014-15. The certificate also stated that suc

Please Login To View The Full Judgment!

h turnover is part of the total turnover declared by the petitioner. V) Objection of the respondents: As per clause 12(f), the bidder is required to submit a certificate of a Chartered Accountant certifying the bidder's turnover along with purchase orders against the supply and other supporting documents and performance certificate. According to the respondents, purchase orders were produced for the financial year 2013-14 and the same were not produced for the financial year 2014-15. Response of the petitioner: According to the petitioner, clause 12(f) does not insist on submission of documents for both the years. Clause 12(f) seen in continuation with clauses 12(d) and 12(e) would require production of such documents for only one of the two years. Our conclusions: Clause 12(d) provides qualification of minimum annual turnover equal to the requirement of zone for which the bid is made. Such turnover should be through manufacturing or producing specified food items and to have been achieved by the bidder in any of the last two financial years. As per 12(e), the bidder should have a proven track record of supplying of such items anywhere in India in one of the last five years. In this context, clause 12(f) provides that "the above mentioned turnover and its derivation must be certified by a Chartered Accountant .....". Thus clause 12(f) does not lay down an additional or new condition of qualification but merely requires certification of satisfaction of such requirements specified in clauses 12(d) and 12(e) by a Chartered Accountant. In that view of the matter, the requirements would be of minimum specified turnover from the specified sources in any one of the last two financial years and of a proven track record of supplying such items in any one of the last five years. Clause 12(f) therefore, never required that supporting documents must be for both the financial years. VI) Objection of the respondents: According to the respondents, clause 12(i) required the bidder to submit its uncommitted production capacity of extruded fortified blended food supported by a proof to this effect by appropriate authority preferably Government. The self certificate produced by the petitioner may comply with the requirement contained in clause 7(j) but not clause 12(i). Response of the petitioner: The petitioner contends that in addition to the self certificate, the petitioner had also produced other documents such as purchase orders, certificate of Chartered Accountant, turnover certificate, agreements with the authorities which also reflected the capacity of the bidder. Additionally, the petitioner had also undertaken to dedicate manufacturing capacity to the extent of 36000 metric tones per annum for the current project. This was far in excess of the required minimum monthly capacity of 1226.85 metric tones for zone No. 6. Our conclusions: We have discussed this issue earlier. However, briefly, we may recall that section 12(i) requires a bidder to possess required minimum capacity to manufacture the products specified in the tender. It further requires that uncommitted production capacity of the bidder should not be less than 100% of the monthly requirement for the zone for which the bid is offered. Proof to this effect should be issued by the appropriate authority preferably the Government. The respondents have not pointed out any authority which would be certifying the uncommitted capacity of any manufacturer much-less any Government authority. The reference to "a proof to this effect issued by the appropriate authority (preferably Govt.) should be enclosed with the bid" must be, at best, understood in the context of the petitioner's overall manufacturing capability and not regarding its uncommitted production capacity. Out of the existing production capacity how much a bidder has already committed to other on-going contracts and which part of such manufacturing capability, the petitioner agrees to dedicate exclusively to the present project, are issues exclusively within the petitioner's domain and no certification for such uncommitted capacity can come from the Government authority. In this context, the petitioner had produced sufficient evidence to establish its total manufacturing capacity duly supported by the documents and also had made a declaration that out of such total capacity, the petitioner would set apart 36000 metric tones for the present project. The petitioner had thus fulfilled such requirements. 20. In addition to such specific objections raised by the Government authorities, the private respondents had also before us contended that the petitioners who were applying for highly sophisticated and responsible nature of work, ought to have obtained proper advise before filling up the tender. They therefore, cannot be allowed to improve or correct the mistake, if any, made during the filling up of the tender form. We have not allowed the petitioners to refill the tender nor allowed them to correct any mistake nor at-least those which can be stated to be significant or amounting to breach of any essential conditions of the contract. 21. They had also contended that several petitioners had been engaged in supplying such food products for the State of Maharashtra under the ICDS scheme where one of the essential requirement was that the contractor should be self help groups, Mahila mandals other than a manufacturer. In this case therefore, the petitioners cannot claim to be manufacturers. This contention cannot be accepted for multiple reasons. Firstly, there is no evidence to this effect that the scheme of State of Maharashtra required only those contractors who were themselves not manufacturers. Secondly, this is not an objection raised by the Government authority but presented by the private respondents before us. Thirdly, what is relevant in the present case is, whether the petitioners fulfill all the eligibility criteria and not whether they were rightly or wrongly held eligible by the State of Maharashtra in its procurement under the ICDS scheme. 22. We are equally unimpressed by the attack of the petitioners to the qualification of the two tenderes namely, Kota Dall Mills and Flora-O-Foods. The authorities have examined their tender documents carefully and found all the documents in order. It is true that in case of Flora-O-Foods, the financial capacity did not cover all seven zones for which the applications were made. However, the tender itself contained a condition that, in any case, no tenderer would be awarded more than four zones. The financial capacity therefore, could have been seen in light of the largest four out of seven zones. Even there, the tenderer felt short. The authorities therefore, we may recall allowed a choice to the tenderer to limit the tender to three zones for which its financial capability was sufficient. This of-course is a degree of flexibility shown by the Government to the tenderer. We do not strike down the action merely on this basis. However, when it came to the petitioners, we do carry an impression, the approach of the authorities was to go rather by the rule book. 23. We do not for a moment question the Government authorities scrutinising minutely, the tender and qualification of the tenderer particularly, when the tender of the present nature requiring production of sophisticated food items, which in turn, would require sophisticated skill and expertise, supply of such items regularly at various centres in the State and the total size of the tender. However, we are somewhat perplexed by the nature of objections sought to be raised by the authorities which eventually disqualified four out of six tenderers leaving virtual monopoly in as many as four zones. Some of the petitioners have been supplying precisely these very items to the State of Maharashtra since quite some time under similar ICDS scheme. It is not even the case of the Government that there have been any complaints against the petitioners in the course of such supplies. The price difference between those offered by the petitioners and the lowest price which the respondents were in the process of finalising when projected over all zones, we are informed worked out to nearly Rs. 200 crores. Even for the four zones which are to be allotted to Kota Dall Mills, this difference would come close to Rs. 100 crores. We have not adopted these figures with any precision. Nevertheless, the scales of difference are there to be seen. The attempt on part of the Government authority can always be to shortlist only those tenderers who are qualified and their track record experience, production capacity and such like, inspire confidence enough to supply such items on regular basis for a prolonged period. Nevertheless, there cannot be an attempt to knock down a serious tenderer out of contention on the basis of objections which may seem superficial or frivolous. 24. We may recall in case of Maharashtra Mahila Sahkari Gruh Udyog Sanstha (SCA No. 20349/2015), the petitioner had applied for two zones namely, zone No. 1 and 4 but his uncommitted production capacity dedicated to ICDS project was sufficient only to cover one of the two zones and not both. Now that the price bid secrecy is substantially violated, we would not allow the choice of which zone to be retained with the said petitioner. We instead provide that the petitioner's bid would be considered for such zone for which its offer is the lowest. In case of identical offers, it would be the choice of Government which would prevail. 25. Under the circumstances, all the petitioners are held duly qualified. The Government authorities are therefore, directed to consider their price bids before taking any final decision to award the contract in any of the zones to Kota Dall Mills or any other agency. 26. Petitions are disposed of accordingly. 27. At this stage, request is made on behalf of the Government as well as Kota Dall Mills to stay this judgment for a reasonable period to enable them to approach the Supreme Court. However, since we have not given any direction to complete this exercise in a time frame, it is always open for the Government to have this judgment tested before taking any further steps in furtherance of the same.
O R