Debangsu Basak, J. - (1.) The petitioners have sought a direction upon the respondents to allow the first petitioner to participate in the bid in respect of tender for supply of non-arsenal (NARS) Spares for Jaguar aircraft being (RFP) No. AIRHQ/CPF/243/AHQ/JAGUAR/W1725041 dated March 12, 2018.
(2.) Learned senior advocate appearing for the petitioners has submitted that, the first petitioner is engaged in the business of providing repair and maintenance services, ground support equipment and also in supply of spares and consumables to the air force. The first petitioner is registered with the Hindustan Aeronautics Limited. He has referred to the various registrations of various categories that the first petitioner has with Hindustan Aeronautics Limited. He has submitted that, the first petitioner is registered with the Naval Aircraft Yard, Kochi. He has also referred to the list of supplies made by the first petitioner to various defence organisations appearing at page 48 of the affidavit in reply. He has drawn the attention of the Court to the vendor login issued by Indian Air Force in favour of the first petitioner. He has submitted that, the first petitioner had applied for registration with the Director General of Aeronautical Quality Assurance on March 27, 2017. The making of such an application and the decision thereon is governed by the Standard Operating Procedure. Clause 23 of the Standard Operating Procedure requires the authorities to decide on the application within 90 days. The authorities did not decide on such registration. The petitioners had issued two reminders to the authorities. Even thereafter, the authorities did not decide on the application for registration. Referring to the letter dated January 6, 2018 issued by the authorities, learned senior advocate appearing for the petitioners has submitted that, the authorities claim that, the application for registration is under further deliberation. In effect, the authorities have not decided on the same. He has referred to page 50 of the writ petitioner and submitted that, the first petitioner has a certificate issued by the foreign manufacturer. He has referred to the orders passed by the High Court at Delhi as also the order of the Division Bench of this Hon'ble Court with regard to the petitioners being allowed to participate in similar tender processes. He has submitted that, the petitioners have always quoted less than the rates quoted by the other participants in the tender processes and that, the rate quoted by the petitioners is about 38% less than the last quoted rate of other participants. However, despite the Division Bench allowing the petitioners to participate in such tender process, and despite the petitioner quoting a rate which is less than 38% of the last rate quoted by other participants, no work order has been issued in favour of the petitioners, in respect of such tender process.
(3.) Learned senior advocate appearing for the petitioners has referred to the Request for Proposal dated March 12, 2018 issued by the Directorate of Procurement Foreign Purchase wing of the Air force and submitted that, the petitioners are capable of supplying the goods listed in Appendix A of the Request for Proposal dated March 12, 2018. He has referred to the General Informations contained in Part I of the Request for Proposal and submitted that, the Request for Proposal requires participants to submit the bids online. It requires a participant to disclose amongst other things, an Agency Agreement with Foreign Manufacturer/ Original Equipment Manufacturer (OEM) for specific product. It also requires a participant to upload the Permanent Account Number, CST/VAT/TIN/Registration. He has submitted that, the Request for Proposal makes Defence Procurement Manual, 2009 applicable to the tender process. He has referred to clause 1.5.2 of the Defence Procurement Manual, 2009. Under such clause, internal orders and instructions, including Standard Operating Procedures issued by various wings of the Ministry of Defence and the Services have been deemed to be modified by the provisions of the Defence Procurement Manual, 2009 to the extent the former are not in conformity with such manual. Referring to clause 3.2.5 of the Defence Procurement manual, 2009, learned Senior Advocate appearing for the petitioners has submitted that, a firm registered with any department of the Ministry of Defence, the Services or Ordinance Factory Board or the Inter-services organisations, may be considered as a registered firm for procurement of other departments of the Ministry or the other services, for the same range of products/goods/services for which the firm is registered with any of the such organisations. According to him, the first petitioner being registered with the Hindustan Aeronautics Limited and the Naval base, the first petitioner has the right to participate in the tender process. He has referred to the Request for Proposal and submitted that, the same is for a Limited Tender Enquiry. The Defence Purchase Manual, 2009 has dealt with Limited Tender Enquiry at clause 4.3 thereof. He has referred to Chapter 9 of the Defence Procurement Manual, 2009 and submitted that, the procurement of goods and services from foreign countries has been dealt with in such Chapter. Clause 9.3 of the Defence Procurement Manual, 2009 deals with registration of foreign Original Equipment Manufacturer and Vendors. According to him, such clause does not disqualify the first petitioner from participating in the tender process. He has submitted that, the petitioners should be allowed to participate in the tender process. The petitioners having participated in the tender process, in terms of the interim order passed by the Court, the bid of the petitioners be evaluated, in accordance with law.;