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M/s.Vinayak Industries Pvt.Ltd. & Others v/s The Managing Director, Raj. State Food and Civil Supply Corpn. & Another

    S.B. Civil Writ Petition No.19338 of 2012

    Decided On, 08 January 2013

    At, High Court of Rajasthan


    For the Petitioners: D.S. Punia, Advocate. For the Respondents: Krishna Verma, Advocate.

Judgment Text

This petition has been filed aggrieved of the rejection of petitioners' bid for supply of fortified Aata with reference to notice inviting tender (NIT) dated 16-8-2012 issued by the Rajasthan State Food and Civil Supply Corporation Ltd. (hereinafter `the Corporation') as modified on 7-9-2012. In the context of rejection of petitioners' bid it has been prayed that the tender process for grant of contract for the supply of fortified Aata be quashed and set aside and fresh tenders be called for where under the case of petitioner firm for grant of contract for supply of the goods in question be considered.

The facts of the case are that a NIT came to be issued on 16-8-2012 by the Corporation inviting applications/ tenders for consideration for grant of contract for supply of fortified Aata to the dairy booths and ration shops under public distribution system. The NIT was amended on 7-9-2012, where under the last date for submission of application by way of uploading the application online for consideration of the Corporation was fixed as 20-9-2012. The bidding process was two part: Technical and Financial. The technical related to eligibility condition and the financial to price competitiveness. Financial bids of only those successful in the technical bids were to be opened. The technical bids were to be opened on 21-9-2012.

It would be in place to point out that the mandatory terms and conditions of the tender as set out in the NIT were to be complied with by each of the bidders. Tenderers intending to participate were required to upload the tender form (digitally signed) as per check-list along with all essential documents. For the purpose of the present writ petition it is admitted position that the bidders were required as an essential condition of their bid to upload a certificate issued to them by MSME Development Institute (Ministry of Micro, Small and Medium Enterprises), a Central Government organisation determining and verifying grinding capacity of the tenderer/ applicant at a minimum 10 Metric Ton per day. The importance of the capacity certificate issued by the MSME cannot be discounted for the reason that the evaluation of the capacity of the tenderer was essential for determining the ability of successful bidder for supply of Aata of the requisite quantity.

The petitioner firm uploaded its tender application along with certain documents as mandated in the NIT. It is however an admitted position that the petitioner firm did not upload the MSME certificate evidencing that it had the capacity of grinding minimum 10 MT per day. In these circumstances on the opening of the technical bid on 21-11-2012, the petitioner firm was not found eligible and consequently its bid was rejected disentitling it from the consideration of its financial bid.

Learned counsel for the petitioner submits that the MSME certificate evidencing grinding capacity of the petitioner firm could not be obtained from the competent authority prior to 40 days from the date of moving an application therefor. The petitioner firm, it is stated, moved the requisite application for the MSME certificate on 14-9-2012, which could not be available up to 40 days thereafter, consequent to which the tender was uploaded without the MSME certificate. Counsel submits that the MSME certificate was received from MSME-(a Government of India Organisation) and mode available to the competent authority on 27-11-2012-at the time of the opening of the financial bids of the other successful bidders. It is submitted that in the interest of justice and wider participation in the bidding process to facilitate competitive bids the MSME certificate of the petitioner firm ought to have been considered along with its bid. It is submitted that MSME organisation is a central government undertaking and the procedural laches in the grant of capacity certificate ought not to have worked against the right of consideration of the petitioner firm.

Mr. Krishna Verma, learned counsel for the respondents would however submit that the terms and conditions of the tender are within the domain of the Corporation. It is submitted that even though while considering bids, waiver of non-essential conditions in non-discriminatory fashion was a discretion of the Corporation, yet wherein non compliance was of an essential condition, (such as the capacity certificate by the MSME in the instant case) it was a fundamental flaw fatal to the bid. It is submitted that it was only in the context of capacity certificate issued by the MSME, that the Corporation would have been able to evaluate the capacity of potential supply of goods. Counsel submits that the last date for uploading the tender form was 20-9-2012, and the prospective bidders had to be eligible as on that date. Admittedly the petitioner firm did not have the capacity certificate issued by the MSME on the said date. Counsel submits that on the date of consideration of technical bid on 21-11-2012 the capacity certificate issued by the MSME was not available with petitioner's tender, consequent to which the petitioner firm was not found eligible for consideration in terms of the conditions of the tender. Reliance has been placed on the case of Michigan Rubber (India) Limited Vs. State of Karnataka [(2012) 8 SCC 216], wherein the Hon'ble Supreme Court has held that where no case of detriment to public interest arbitrariness, malafide or discrimination is made out from the conditions of tender, courts under Article 226 of the Constitution of India should not interfere.

Heard learned counsel for the parties and perused the material available on record of the writ petition.

It is an admitted fact that the capacity certificate issued by the MSME was a essential mandatory condition of eligibility to participate in the NIT processes by the respondent Corporation. The importance of the MSME certificate cannot be discounted as such a certificate was essential for the evaluation of the capacity of the successful bidder to make smooth and regular supply of the goods in question as per the scheduled plan of the Corporation. Consequently on the date of opening of bid on 21-11-2012, the bid of the petitioner firm was incomplete and was rightly rejected. Subsequent issue of MSME certificate on 27-11-2012 was of no avail. I find no force in the submission of counsel for the petitioner that on the last date of submitting tender form, the application of the petitioner firm for issuing capacity certificate by the MSME was pending before the MSME, and for the laches by

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the MSME, the petitioner firm should not be penalised. It goes without saying that the MSME organisation was/ is not an agent of the respondent Corporation and it is a separate organisation of the Central Government. The petitioner firm was under an obligation to satisfy the conditions of eligibility for making a bid by the last date notified by the respondent Corporation i.e. 20-9-2012. This the petitioner firm failed to do. Hence, according to the terms and conditions of the tender form the petitioner firm was not eligible to participate in the tender process and its bid was rightly rejected. I therefore find no force in the writ petition, and the same is dismissed. Stay application also stands dismissed.