- (1.) HEARD Mr. M. S. Mittal, learned counsel for the petitioner and Mr. Anil Kumar Sinha, learned senior counsel for the Respondents and perused the counter affidavit filed by the Respondents.
(2.) CHALLENGE in this writ application is to the Clause No. 1.3.2 (i) of the Tender No. SAIL/DSP - PUR/139/CP -FA/SiMn/I -Transmission Line JAN/ 2009, dated 16.01.2009, which relates to the eligibility criteria enclosing a condition therein, that "in order to be eligible to participate in the said Tender, the Tenderer must be a manufacturer of Silico Manganese and must have installed and supplied 2500 Silico Manganese per month and the Tenderer must offer minimum 7500 MT to be supplied on monthly pro -rata basis during the contract period of three months i.e. at the rate of minimum of 3750 MT or each one and half months sub cycle. Besides praying for quashing the aforesaid Tender, the petitioner has also prayed for issuance of a writ of mandamus commanding upon the Respondents to allow the petitioner to participate in the aforesaid Tender without insisting upon the eligibility criteria as laid down in Clause 1.3.2. (i) of the terms and conditions for participating in the said Tender. Pursuant to the interim order passed by this Court by which the Respondents have allowed the petitioner to participate in the Tender and to consider Tender papers submitted by the petitioner alongwith other papers, the petitioner had submitted his Tender Papers and on considering the same, the Respondents had rejected his Tender on the ground that it does not qualify according to the eligibility criteria and such information was communicated to the petitioner by letter dated 05.02.2009 issued by the Senior Manager (Purchase) of the Durgapur Steel Plant. The petitioner has made a further prayer to quash the aforesaid letter. Petitioner's case in brief is that the petitioner -Company is a manufacturer of Silico Manganese, TMT Bars as well as Iron Ingots, having its manufacturing unit and plant at Koderma within the State of Jharkhand. The Steel Authority of India has a Central Purchase Auction Scheme, (C.P.A.), whereby the goods are centrally auctioned for purchase of various goods to be supplied at its various steel plants located all over [W.P. (S) 422 of 2009] [W.P. (S) 422 of 2009] India including Durgaur, Bhilai, Rourkela, Asansol, Vishakhapatnam and Bokaro Steel City. The Steel Authority of India Ltd., upon its requirement of Silico Manganese for all its Plants, issued a Tender Notice No. SAIL/DSPPUR/ 139/CP -FA/SiMn/I -Transmission Line -JAN/2009, dated 16.01.2009 to procure 31,400 M.T. of Silico Manganese through open tender from the manufacturers of Silico Manganese. In the Tender documents, it was declared that the S.A.I.L. will be requiring about 31400 MT of Silico Manganese during the period February, 2009 to April, 2009 for supplying to Bokaro Steel Plant, Durgapur Steel Plant, Rourkela Steel Plant, Bhilai Steel Plant and I.I.S.C.O. The last date for submitting of Tender was 30.01.2009. The Tender documents was to be submitted within the time stipulated in the Tender notice, at 03rd Floor, Ispat Bhawan, Dugapur Steel Plant, Durgapur or to be sent by post or courier to the Executive Director (MM) at the aforesaid address. An earnest money of Rs. 10.00 lakhs in the form of Bank Guarantee or Bank Draft was to be submitted alongwith the tender documents. Request for quotation (RFQ), was also enclosed to the tender, stating the details of the various terms and conditions, in relation to the procurement of 31400 MT through open tenders. The eligibility criteria as stipulated in the Tender notice, included the impugned clause in the following terms: "1.3.2 - Eligibility/Criteria/Ground Rules for Participation. (i) In order to be eligible to participate in this tender, the tenderer must be a manufacturer of Silico Manganese and must have installed capacity to produce and supply 2500 MT of Silico Manganese per month. Also, the tenderer must offer minimum 7500 MT to be supplied on monthly prorate basis during the contract period of three months i.e. @ minimum of 3750 MT or more for each 1 1/2 months sub cycle." The petitioner is aggrieved with the aforesaid condition which places a restriction upon the petitioner's participation in the Tender process, since the petitioner does not have the installed capacity to produce and supply 2500 MT of Silico Manganese per month. Such a condition, according to the petitioner, has been imposed only with a mala fide intent to oust the petitioner and similarly situated other small scale manufacturers from entering into contract with the Respondent -SAIL.
(3.) ASSAILING the impugned eligibility clause, Mr. M. S. Mittal, would submit that the insertion of the impugned restrictive clause is solely intended to deny the petitioner of the opportunities of participating in the Tender and is a [W.P. (S) 422 of 2009] [W.P. (S) 422 of 2009] mala fide action on the part of the Respondents -authorities. In order to demonstrate the alleged mala fides, learned counsel submits that it is not the first time that the petitioner had offered to participate in the contract with the Respondents -SAIL. Rather, on so many previous occasions, the Respondents have granted work order to the petitioner and on each occasion, the petitioner had satisfactorily completed the work. Discord with the petitioner, arose when in the month of August, 2008, a Tender was floated and an order was issued to the petitioner for supply of Silico Manganese @ Rs. 80,000 per MT. Thereafter, the price had considerably fallen by half the earlier price. The Respondents arbitrarily cancelled the contract and against such cancellation, the petitioner had initiated legal proceedings by filing a writ petition before this Court. The matter was ultimately settled by the Respondents agreeing to purchase the product @ Rs. 70000/ -per MT, though at the relevant time, the market rate was around Rs. 40000/ -per MT. Learned counsel explains further that on earlier occasions when there was huge price fluctuation the petitioner had quoted the rate of Rs. 40000/per MT and when subsequently the price rose to Rs.60000/ -per MT, the petitioner was compelled to supply at the originally quoted price of Rs. 40000/per MT and thereby entailing the petitioner to suffer a loss of Rs. 25 Crores. The contention of the learned counsel is that on account of such controversy and the fact that the petitioner had resorted to legal proceedings against the Respondents, the concerned authorities of the Respondents have borne grudge and malice against the petitioner and it is only on account of such malice that the Respondents have inserted the impugned restrictive clause in the Tender Notice to eliminate the petitioner from participating in the Tender bid.;