Mohammad Rafiq, J. - (1.) THE petitioner, Jindal Saw Limited, is a company incorporated under the Indian Companies Act and is engaged in the work of manufacture and supply of ductile pipes and ancillary items. The petitioner -company has approached this Court by way of present writ petition challenging the condition that successful bidder shall source all Ductile Iron Pipes(for short 'DI pipes') from manufacturers (or any of its group Companies) having ISO:9001 certification and experience of supplying for at least ten years and whose DI pipes and fittings are in satisfactory performance for at least three years in Indian projects for which documentary evidence will have to be submitted from Government Authority not below the rank of Executive Engineer, which has been stipulated in Eligibility Criteria under Clause II(b)(h) of Technical Criteria in Notice Inviting Bid No. 03/2014 -15 dated 05.08.2014 (for short 'NIB') issued by the respondent -Rajasthann Rajya Vidyut Utpadan Nigam Limited(for short 'the Nigam') for Design, Engineering, Manufacturing, Procurement and Construction on turnkey basis for River Water System comprising of civil, mechanical, electrical and C&I works for 2 x 660 MW Coal Based Supercritical Chhabra Thermal Power Project, Chhabra, District Baran (Raj). It is alleged that the aforesaid condition has been tailor made to qualify Respondent No. 3, M/s. Electrosteel Casting Limited alone and to exclude all other beneficiaries including the petitioner.
(2.) ACCORDING to assertion made in the writ petition, the petitioner -company is one of the biggest manufacturers and suppliers of DI pipes in India and is currently producing approximately 3,50,000 MT of DI pipes and is catering to Indian as well as international market. It is having ISO:9001 certification and is engaged in the business of DI pipes for more than nine and half years since the date it was granted BIS licence on 12.05.2005. The petitioner -company has supplied DI pipes worth more than Rs. 1,400 crores in State of Rajasthan to various departments such as PHED, RUIDP, JDA, UIT etc. It is averred that estimated cost of the work as per above referred to NIB was approximately Rs. 350.00 crores. Scope of the work mentioned in NIB includes supplying, laying, jointing, testing and commissioning of DI pipes of diameter 700/900/1000 mm class K7 and K9 for the length 156 KM from Lhasi and Parwan rivers to power plant site. Out of total project cost of Rs. 350.00 crores, cost of DI pipes itself amounts to approximately Rs. 250.00 crores. Since it is a turnkey project, the petitioner as well as the Respondent No. 3, who are manufacturers of pipes, themselves participate in the bid process. As per the technical specifications given in the above referred to NIB under the caption "Technical Criteria", the bidder was required to possess experience of at least seven years, up to the date of submission of tender, of execution and successful commissioning either of, (i) three similar works costing not less than the amount of Rs. 140 crores each; or (ii) two similar works costing not less than the amount Rs. 175 crores each; or (iii) one similar work costing not less than the amount of Rs. 280 crores. Similar works means the works related to raw water/drinking water supply schemes/projects awarded by Government Generating Company/Water Resources Department/Irrigation Department/State Government Water Works Department, including O&M works. This was because the scope of work also included operation and maintenance of quality conveying system from Lhasi and Parwan Rivers to site plan for a period of ten years. Scope of the work has been detailed out in the document (Annexure -3) titled 'Turnkey Specifications for Engineering, Procurement and Construction of River Water System' which is running into 984 pages.
(3.) MR . Kamlakar Sharma, learned Senior Counsel appearing for the petitioner has argued that the impugned condition is highly arbitrary and irrational. Insertion thereof has been made for reasons of malafide and oblique considerations. While for the bidder, who has to carry out the entire work under the tender, total experience required is seven years, but it has been asked to source all ductile iron pipes and fittings from manufacturer(or any of its group Companies) having ISO:9001 certification and experience of supplying for at least ten years and whose DI pipes and fittings are in satisfactory performance for at least three years in Indian Projects. This condition is opposed to public policy and has been tailor made to suit and qualify only Respondent No. 3 and its group Companies. Referring to Page 221 of paper book of Annexure -3, it is argued that standard of the pipes has been laid down in Clause 2.0 under heading "Codes and Standards". It has been stated therein that the bidder shall submit as Appendix -VII, a Memorandum of Understanding (MOU) between contractor/bidder and Pipe manufacturer. Apart from the condition of ten years experience, it has also been provided in the MOU that the annual manufacturing capacity of the manufacturer should be 1,00,000 MT minimum. Thus, even without providing for ten years experience, the Nigam had sufficiently ensured quality of pipes as well as capacity of the manufacturer. And this has been further ensured by giving specific design, manufacture, dimensions, tolerances, mechanical properties, internal cement mortar lining, external zinc coating along with bituminous finished layer, inspection and testing of DI water pipes complying with the latest Indian Standard and fitting should comply with IS 8329 (Centrifugally cast (spun) ductile iron pressure pipes for water, gas and sewage -specification) or equivalent international standard unless otherwise specified elsewhere in the Technical Specification and "IS 9523 (Ductile iron fittings for pressure pipes for water, gas and sewage -specification). Submission of learned Senior Counsel is that in the face of all these stringent requirements and conditions, which otherwise ensure quality of DI pipes and other items, condition of requiring the manufacturer to have ten years experience was absolutely unnecessary. It has no nexus with the purpose sought to be achieved.;