BHARATI SHIPYARD PVT LTD Vs. PARADEEP PORT TRUST

JUDGEMENT

(1.) Paradeep Port Trust floated a tender for construction and delivery of one 18-ton bollard pull tractor tug fitted with schettel propulsion system by publishing a notice dated 6-5-1993 in newspapers. Tenders were invited from experienced and reputed ship-builders having built and delivered tractor tugs of 15-ton bollard pull. The last date for submission of tenders was 21-7-1993. In order to see that more parties submitted tenders, the last date for rolling (Giling) the tenders was extended to 30-7-1993 and for opening the tenders, it was extended to 20-8-1993. Tenders were to be submitted in two sealed envelopes, one containing technical bid and the other containing financial bid. On 20-8-1993, the technical bids were opened and thereafter on evaluation certain deficiencies/ differences were noticed in the technical specifications. The tenchnical requirements were then modified and finalised and all the three tenderers who had submitted their tenders were advised to submit their revised price bid if that was found necessary by them. The date fixed for opening the revised price bid was declared as 13-9-1993. On that day, all the three tenderers were found and declared as technically qualified and the revised financial bids submitted by them were also considered. The financial bid of the petitioner was the lowest, but in view of certain conditions imposed by it, it was called for negotiations on 13-10-1993. The other two parties were also called for negotiations on that day. It appears that Hooghly Dock and Port Engineers did not attend on 13-10-1993 and, therefore, the petitioner and M/s. Shalimar Works, the remaining two tenderers, were requested to submit their revised offers. It was also decided to give a similar chance to Hooghly Dock and Port Engineers, the third bidder. The said bids were to be opened on 27-10-1993 and intimation to that effect was given to all of them. The revised financial bids were scrutinised on 27-10-1993, 4-11-1993, 6-11-1993 and lastly on 10-11-1993. The Tender Committee appointed by the Port Trust unanimously decided to accept the tender of M/s. Shalimar Works. The said decision was approved by the Board of Trustees on 26-11-1993. The petitioner, feeling aggrieved by the said decision, presented this petition on 30-11-1993.

(2.) The grievance of the petitioner is that M/s. Shalimar Works is not eligible according to the eligibility criteria fixed by the Port Trust and, therefore, their tender should have been rejected outright at the initial stage of evaluating the technical bid and they should not have been given any opportunity to submit their revised financial bid. The Port Trust should not have considered the same on this ground and also on the ground that an assurance was given to the petitioner that if it matched the lower price offered by M/s. Shalimar Works, then the bid of the petitioner could be accepted. As the petitioner was willing to do so, its tender or bid should have been accepted, and in not doing so, the Port Trust has acted arbitrarily and, therefore, its said action should be regarded as violative of Art.14 of the Constitution. On the basis of such averments made in the petition, the petitioner desires this Court to quash the decision of the Board of Trustees and direct the Port Trust to give the contract for construction and delivery of the tug to it.

(3.) What is contended by Mr. Palit, learned counsel for the petitioner, is that as disclosed by the notice and also the tender documents, only experienced and reputed ship-builders who have built and delivered tugs of 15-ton bollard pull and above are to be considered as eligible for awarding the contract. The petitioner does satisfy that condition, but M/s. Shalimar Works does not satisfy that eligibility criteria inasmuch as it has not so far delivered a tug having 15-ton bollard pull and above. He submitted that the important words in the advertisement and the tender documents are 'built' and 'delivered'. By the time the bid of M/s. Shalimar Works was accepted, they had not delivered a tug of that description. The documents show that they had till then built and delivered tugs of 13-ton capacity only. Thus, though they were building one tug of higher capacity for the Vishakhapatnam Port Trust and two tugs of higher capacity for the Cochin Port Trust, they cannot be said to have built and delivered tugs of 15-ton capacity and above. He further submitted that the word 'delivered' has been purposely and significantly used, because it is only on delivery of a tug that its performance can be evaluated and it can be found out whether the performance of the tug which has been built is satisfactory or not. The said eligibility criteria having been fixed not only keeping in mind the building experience but also the performance of the tugs built, it could not have been relaxed without either cancelling the tenders and inviting fresh tenders or without making it known publicly to all concerned and giving an opportunity to those who did not participate earlier but would have liked to participate as a result of relaxation of that eligibility criteria. In support of his contention that such an eligibility criteria cannot be relaxed, he relied upon the following observations of the Supreme Court in paragraphs 7 and 10 in Ramana Dayaram v. International Airport Authority, AIR 1979 SC 1628. He particularly referred to the following observations made in those paragraphs :-