- (1.) The short facts that are necessary for the disposal of the above writ petition are as follows: on 01.12.2006, the second respondent issued a tender notification inviting tender from licensed and reputed manufacturers for master origination, manufacture and supply of polyester hologram excise labels as per the specifications described in the tender notice. As per the tender notification, the last date for submission of tender was 05.01.2007 and the technical bids were to be opened at 3.30 pm on the same day. As per the tender conditions only those tenderers who qualify in the technical evaluation will be considered for price bid opening and the tenderers who did not qualify in the technical bid will not be considered in the price bid opening. The tenderers who qualify in the technical bid will be invited to the opening of the price bid. The said tender consists of five sections, which are as follows: Sec.1 : tender notice section 2 : instructions to tenderers section 3 : technical specifications and product specifications. Sec.4 : general terms and conditions. Sec.5 : tender form and price schedule. Sec.2 contains the instructions to tenderers, while section 3 deals with the technical and product specifications. Sec.4 of the tender contains general terms and conditions, while Sec.5 deals with the tender form and price schedule.
(2.) According to the petitioner, the petitioner submitted their tender by complying with all the conditions and specifications within the time prescribed. The petitioner submitted a representation on 04.01.2007 to the first respondent setting out the facts relating to Dr. Agarwal, the third respondent herein, along with a request to see that Dr. Agarwal does not participate in the Expert Committee to evaluate the Technical Bids and bias and mala fides have been attributed against the third respondent. The said representation was followed by another representation dated 11.01.2007. Though the first respondent assured to look into the matter, the third respondent continued to be a member of the committee. According to the petitioner, out of seven tenders, the tender submitted by M/s. Flex Industries Limited is incomplete and consequently it is the tender of the petitioner and the fourth respondent, M/s. Holostic India Private Limited, which would qualify at the technical bid stage and be eligible for the opening of the price bids. The petitioner, on coming to know that the Committee is visiting the units of the tenderers, by their representation dated 25.01.2007 sought for inspection of the petitioner's unit. Pursuant thereto the Committee visited the petitioner's unit at Cochin alone although they fully knew that the full-fledged unit of the petitioner is situated at Coimbatore. According to the petitioner, the officers of the petitioner's unit had brought to the notice of the Committee that another unit of the petitioner, which is under a single roof is situated in Coimbatore which should also be visited by them, but the committee did not visit the petitioner's unit at Coimbatore. According to the petitioner, the petitioner came to know that the Committee headed by the third respondent had disqualified the petitioner's tender besides four other tenderers also and had certified only the tender of the fourth respondent and M/s. Alfa Laser Tech Private Limited as being technically qualified. According to the petitioner, M/s. Holostic India Private Limited and M/s. Alfa Laser Tech Private Limited have formed a cartel along with few others which has also been brought to the notice of the respondents. It is alleged by the petitioner that the action of the respondents in seeking to disqualify the tender of the petitioner at the stage of technical bid is vitiated by bias in fact, bias in law besides being arbitrary and unreasonable violative of Article 14 of the Constitution of India only for the purpose of selecting and continuing the fourth respondent to be the manufacturer and supplier of the Hologram labels for collateral considerations.
(3.) A detailed counter affidavit has been filed by Respondents 1 and 2. In the counter affidavit, the various allegations levelled against Respondents 1 to 3 by the petitioner have been denied. In paragraph 9 of the counter affidavit, the reasons for disqualifying the tender of the petitioner in the technical bid stage is stated, which reads as follows:- "9. All the facility viz. Art work creation, Master Origination, glass negative preparation, Developing of glass master, Nickelling process, Metal master preparation, embossing lamination, Die-cutting, coating and other intermediary processes involved in the manufacture of hologram excise label is not located in the same premises under one roof (as per Condition No.6 of Part-4 of Tender Document, 2006 ). On Inspection it was found that embossing, lamination, die-cutting, coating and re-combination machineries were not available in the factory premises. In addition, the Dot Matrix origination facility is less than three years. The samples supplied by the tender do not conform to the prescribed specifications such as the recombination of holographic masters made from both 2d/3d conventional and DOTMATRIX Digital Origination System, four channel effect, multilevel animation effect, pearl effect with hidden micro text, concealed animated image and multiple LASER viewable animated covert image" required as per the technical specifications in part-3 of Tender document".;