J.S. SEKHON, J. :- - (1.) Through this writ petition, the petitioner challenges the proposal/decision of the Punjab State Electricity Board to accept tender of M/s. Gaco Systems (India) Private Limited (Respondent No. 2) for awarding contract for the design/erection etc. of water treatment plant having two streams each of net rated capacity of 90 tonnes per hour and maximum capacity of 100 tonnes per hour at Phase 3 of Thermal Plant, Ropar, on the ground of ineligibility of Respondent No. 2 to obtain tender documents to file tender due to lack of requisite experience in the commissioning of water treatment plants of the similar capacity.
(2.) The brief reand'sumeand' of facts relevant for understanding the controversy is that the Punjab State Electricity Board, hereinafter referred to as the Board (Respondent No. 1) floated a tender (Annexure-P. 1) for the design, manufacture, supply, delivery handling and storage at site, erection testing and commissioning on turn key basis as per specification No. 425 / PNRTP of water treatment plant having two streams, each of net rated capacity of 90 tonnes per hour and maximum capacity of 100 tonnes per hour. The tender notice was published in various papers all over the country. The tender notice, inter alia, contained certain mandatory stipulations, the material being that the tender documents will be issued only to those firms who have already supplied, erected and commissioned water treatment plants of similar capacity and produce certificate of satisfactory service and performance for a period of two years from at least two clients/utilities and that these certificates must be enclosed with the request for purchase of tender documents. It is also stipulated that the set of tender documents containing specification, general instructions and terms and conditions for the submission of tender can be obtained from the office of the Board on payment of cost of tender specification along with certificate of experience. In response to the said notice, the petitioner company submitted tender for the above-referred water treatment plant after producing the requisite certificates of experience and purchasing the set of tender documents. Gaco Systems India Private Ltd. (Respondent No. 2) as well as three other concerns (including the petitioner) also submitted tenders.
(3.) The tenders were opened on 31-3-1989 by Respondent No. 1 in the presence of the representatives of the petitioner as well as other tenderers viz. Respondent No. 2 M/s Termax Private Ltd. and M/s Watco Technics Bombay. The tender of Respondent No. 2 was then seen by the petitionerand's representative and it was found that it did not have the certificates of two clients regarding the supply of water treatment plants of similar capacity, what to say of satisfactory functioning of such plants for a period of more than two years. The tender of M/s Watco Technics was not opened because it had not deposited the earnest money as required in the tender notice. Thus, only three parties were left it in the field. It is further averred by the petitioner that Respondent No. 2 had never supplied the water treatment plants of the above-referred capacity and in fact while submitting the tender, Respondent No. 2 had not appended any such certificate. In the year 1986, the Board had also floated a tender for the supply of water treatment plant and Respondent No. 2 had submitted a tender for getting that contract, but it was not accepted as Respondent No. 2 had not the requisite experience certificates for the supply of water treatment plants. Therefore, its tender was rejected, although lower in price. On that occasion, the tender filed by the petitioner-company was also rejected due to quoting of higher price while that of M/s Termax Private Ltd. was accepted. The petitioner further maintains that Gaco Systems (India) (Respondent No. 2) was not even eligible to purchase the tender documents as it had not the requisite experience of commissioning water treatment plants of similar capacity. The Board had decided on 12-9-1989 to accept the tender of Respondent No. 2 arbitrarily, mala fide and on some extraneous considerations. It was further elaborated that usually the Board used to advance 10 per cent of the total cost of the plant to the contractor, but in the case of Respondent No. 2 the Board had agreed to advance 20 per cent of the total cost of tender work which roughly amounted to rupees seventy lacs. This favour to Respondent No. 2 by the Board was also termed as motivated resulting in huge loss to the public exchequer. Thus, the above-referred action of the Board was contended to be contrary to the mandate of Art.14 of the Constitution of India as it had resulted in treating the petitioner and Respondent No. 2 not equally. It is noteworthy that this writ petition was filed on 23-9-1989 while the Board had issued the letter of intent accepting the tender of Respondent No. 2 on 27-9-1989.;