Protik Prakash Banerjee, J. - (1.) A continuing story of an alleged arbitrariness in the conditions of an open tender has been narrated in WP No. 3722 (W) of 2018 and WP No. 16227 (W) of 2018 which have been instituted under Article 226 of the Constitution of India before this Court. The purported arbitrariness was alleged to be connected with the notices inviting e-tenders for the 3rd and 4th Quarter of 2017-2018 and 1st Quarter of 2018-19 by the respondent no.1, reliefs for which have been sought in WP No. 3722 (W) of 2018 and on the same issues in connection with the notice inviting tender for the 2nd Quarter of 2018-2019 narrated in WP No. 16227 (W) of 2018. The prayers made in the two writ petitions are set out hereinbelow: - Prayers made in WP No. 3722 (W) of 2018:- A] A writ of and / or writs in the nature of Mandamus directing the respondent authorities forthwith rescind/withdraw/revoke the said changed evaluation criteria so incorporated from the 3rd and 4th Quarter 2017-18 and 1st Quarter 2018-19 in the etenders as mentioned in paragraph no. 16 of the instant writ petition so as to enable your petition company to participate in the said e-tenders for procurement of HDAN and B] A writ and/or writs in the nature of Mandamus directing the respondent authorities to immediately disclose the methodology of the distribution of the tender quantities of HDAN so as to enable petitioner to participate in the said e-tender for procurement of HDAN; AND C] A writ and/or writs in the nature of Mandamus directing the respondent authorities immediately disclosed the name of the Independent External Monitors so as to enable the petitioner to ventilate their grievance in case there is a violation of the tender terms and conditions: AND D] A writ of and/or writs in the nature Certiorari directing the respondent authorities concerned to forthwith transmit the records of the instant case, before this Hon'ble Court so that conscionable justice can be done; AND E] A writ in the nature of prohibition be issued restraining the respondent authorities from giving effect to the changed evaluation Criteria so incorporated from the 3rd and 4th Quarter 2017-18 and 1st Quarter 2018-19 in the e-tenders as mentioned in paragraph no. 16 of the instant writ petition so as to enable your petitioner company to participate in the e-tenders for procurement of HDAN till disposal of the instant writ petition; AND F] An Ad Interim Order directing the respondent authorities to immediately disclose the methodology of the distribution of the awarded quantities and HDAN and/or disclose the minimum quantity of the HDAN to be mandatorily be procured from the lowest bidders so as to enable the petitioner company to participate in the e-tenders for procurement of HDAN; AND G] An Ad Interim Order of injunction be issued upon the respondent authorities thereby restraining them from giving effect to the said changed evaluation Criteria so incorporated from the 3rd and 4th Quarter 2017-18 and 1st Quarter 2018-19 in the etenders as mentioned in paragraph no. 16 of the instant writ petition so as to enable your petitioner company to participate in the e-tenders for procurement of HDAN till disposal of the instant writ petition; AND H]An Ad Interim Order of injunction be issued upon the respondent thereby restraining them from giving an opportunity of distribution of tender quantity to a non-bidder, i.e., who had not participated in the tender and not complied with the tender condition. AND I] Rule NISI in terms of prayers [A], [B], [C] & [D], [E], [F], [G], [H] & [I] made hereinabove; AND I] Interim Order in terms of prayer [A], [B], [c] & [d], [E], [F], [G], [H] & [I] made hereinabove; AND J] Pass such other Order or Orders and/or direction and/or directions, as Your Lordships would deem fit and proper. Prayers made in WP No. 16227 (W) of 2018:- A] A writ of and / or writs in the nature of Mandamus directing the respondent authorities forthwith rescind/withdraw/revoke the said changed evaluation criteria so incorporated in e-Tender No. BGE/HDAN/18-19/Q2 dated 08.06.2018 for the second quarter of the year 208-19 so as to enable your petitioner company to participate in the said e-tenders for procurement of HDAN; AND B] A writ and/or writs in the nature of Mandamus directing the respondent authorities to immediately disclose the methodology of the distribution of the tender quantities of HDAN so as to enable petitioner to participate in the said e-tender for procurement of HDAN; AND C] A writ in the nature of Mandamus be issued not to incorporate the said changed evaluation Criteria so incorporated in the e-Tender No. BGE/HDAN/18-19/Q2 dated 08.06.2018 for the second quarter of the year 2018-19 in the upcoming years to be issued by the respondent authorities for procurement of HDAN; AND D] A writ of and/or writs in the nature Certiorari directing the respondent authorities concerned to forthwith transmit the records of the instant case, before this Hon'ble Court so that conscionable justice can be done; AND E] A writ in the nature of prohibition be issued restraining the respondent authorities from giving effect to the changed evaluation Criteria in e-Tender No. BGE/HDAN/18- 19/Q2 dated 08.06.2018 for the second quarter of the year 2018-19 and in upcoming tenders to be issued by the respondent authorities for procurement of HDAN so as to enable your petitioner company to participate in the e-tender for procurement of HDAN till disposal of the instant writ petition; AND F] An Ad Interim Order directing the respondent authorities to immediately disclose the methodology of the distribution of the awarded quantities and HDAN and/or disclose the minimum quantity of the HDAN to be mandatorily be procured from the lowest bidders so as to enable the petitioner company to participate in the e-tenders for procurement of HDAN; AND G] An Ad Interim Order of injunction be issued upon the respondent authorities thereby restraining them from giving effect to the said changed evaluation Criteria so incorporated from the 3rd and 4th Quarter 2017-18 and 1st Quarter 2018-19 and in second Quarter 2018-19 in the e-tenders and in future tenders so as to enable your petitioner company to participate in the e-tenders for procurement of HDAN till disposal of the instant writ petition; AND H] An Ad Interim Order of injunction be issued upon the respondent thereby restraining them from giving an opportunity of distribution of tender quantity to a non-bidder, i.e., who had not participated in the tender and not complied with the tender condition; AND I] Rule NISI in terms of prayers [A], [B], [C] & [D], [E], [F], [G], [H] & [I] made hereinabove; AND I] Interim Order in terms of prayer [A], [B], [c] & [d], [E], [F], [G], [H] & [I] made hereinabove; AND J] Pass such other Order or Orders and/or direction and/or directions, as Your Lordships would deem fit and proper.
(2.) The facts of the two cases are rather convoluted. The complications are not as much of the facts as the manner in which they have been drafted. After going through the chronological confusion of the pleadings, I have been able to discern the facts which I have restated hereinafter. The petitioner is a manufacturer of Technical Ammonium Nitrate (referred to hereinafter as "TAN"). The petitioner claims to be the largest manufacturer of the same in India and its 4th largest manufacturer in the world. The said TAN includes High Density Ammonium Nitrate (HDAN) and Low Density Ammonium Nitrate (LDAN) and Ammonium Nitrate melt. The petitioner company also admittedly supplies TAN, including HDAN and LDAN to Government Organization and Public Sector Units including the respondent Indian Oil Corporation Limited. These are the only purchasers of the said supplies on a bulk scale, and are ingredients of explosives required, inter alia, for the purposes of mining and extraction of crude oil and coal. The petitioner claims to have participated in all tenders floated by the respondent no. 1 for TAN in the last 30 years including in the e-tender for the 1st Quarter in the year 2017-18 and without prejudice to its rights and contentions in the 2nd Quarter of the year 2018-19. The petitioner's grievance is that though the etender was stated to be an open tender, from the 3rd Quarter of 2016-17 onwards, the respondent no. 1 went back on the terms and conditions of the tender by not awarding 100 per cent of the quantity for the respective locations to the lowest bidder while awarding the bulk of the amounts at a lower price to Public Sector Units which had neither participated in the tender nor bid for the tender. The petitioner submits that even though it did not participate in the tenders of the 2nd, 3rdand 4thQuarters of 2017-18 according to the evaluation criteria in all these tenders the respondent authorities were bound to procure the tender quantity of HDAN from the lowest bidders in the respective locations but the 3rd and 4th Quarter of 2016-17 and the 1st Quarter of 2017-18 saw the respondent no. 1 procuring less than the full tender quantities of HDAN from the lowest bidder contrary to the evaluation criteria. It is the petitioner's case that it asked for the clarification by amendment of the tender conditions, that those who had not participated in the tender process could still be allotted the quantity of tender amount if they match the price of the lowest bidder so long as these outsiders were Public Sector Unitsso that the petitioner could take legal steps. Since this clarification was not made in the tender for the 2nd quarter of 2017-18, the petitioner could not participate in the tender and when meetings were held with the respondent no. 1 the respondent no. 1 made it clear that it was procuring the balance quantities of HDAN from Government or Public Sector Undertakings.
(3.) Thereafter, the tender for the 3rd Quarter of 2017-18 was floated in which the evaluation criteria was changed and the changed criteria was as follows: "Bidders acknowledged that IOCL as an existing arrangement for supplyof HDAN from the Government/PUS sources. In the event that the price of HDAN from these sources are lesser than the quoted L1 rates of bidder against this tender, IOCL may, at its absolute discretion allocate any quantity, including up to 100 per cent of the tender quantity, to the said Government/PSU sources to ensure economical procurement of the material. In such case, if IOCL decides to procure any quantity of HDAN under this tender, then the tender quantity would be deemed to mean such remaining quantity, and IOCL may at its discretion place order on the L1 bidder for such remaining quantity in accordance with the terms and conditions of the tender and the bid. If, however, no quantity of HDAN remains to be procured, then IOCL may cancel the tender process without incurring any liability towards the bidders.";