M/S TRICOLOR INDIA SCHAUSPIEL PVT LTD vs INDIAN OIL CORPORATION LTD. & ORS.
$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10859/2023 M/S TRICOLOR INDIA SCHAUSPIEL PVT LTD ….. Petitioner
Through: Mr.Gautam Khazanchi, Mr.Subham Jain, Advocates
versus
INDIAN OIL CORPORATION LTD. & ORS. ….. Respondents
Through: Mr.Nitesh Jain, Ms.Kangan Roda, Mr.Vatsal Chandra, Mr.Manish Shyam Sharma, Advocates for R-5
% Date of Decision: 03rd May, 2024.
CORAM: HON’BLE THE ACTING CHIEF JUSTICE HON’BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
JUDGMENT
MANMOHAN, ACJ: (ORAL) CM APPL.25928/2024
1.
Present application has been filed on behalf of the applicant-petitioner seeking early hearing of the writ petition on the ground that respondent no. 5 has purportedly completed the work under the subject tender.
2.
Issue notice.
3.
Mr.Nitesh Jain, learned counsel accepts notice on behalf of respondent no.5. He states that that he has no objection to the early application being allowed and the matter being taken up for hearing today itself.
4.
Consequently, with the consent of parties, the present application is
allowed and the matter is taken up for hearing.
W.P.(C) 10859/2023
5. Learned counsel for the petitioner states that the work under the subject tender has been completed. In support of his contention, he relies on the certificate dated 23rd April, 2024 issued by the Indian Oil Foundation which reads as under:
Date: 23.04.2024 TO WHOMSOEVER IT MAY CONCERN
1) Name of work: Concept, Design, Engineering, Supply, Installation and Commissioning of Multimedia Show and its Comprehensive Maintenance for 3 years at Golconda Fort, Hyderabad.
2) Work Order No.: RHQCC23031/2023-24/NOA/041 dated 28.7.2023 3) Name of Contractor: M/s E Factor Experiences Limited 4) Contract value: Rs.8,47,24,483.90 exclusive of GST @ 18%
The work has been successfully completed at the site and was subsequently inaugurated on 24.01.2024. The show is presently operational by ASI.
This certificate is being issued as per request of M/s E Factor Experiences Limited and issuance of this certificate does not confer any liability, financial or otherwise, on The Indian Oil Foundation.
Sd/(Vikas Gandotra)
Dy General Manager (I/c)
6.
He, however, states that the tender has been completed in violation of the Public Procurement (Preference to Make in India), Order 2017. He contends that it is necessary that directions are issued to the respondent no. 3 to take action on the petitioners complaint dated 18th July, 2023.
7.
Learned counsel for the respondent no.5 (successful tenderer) states that the petitioners complaint has already been examined by the
respondents and rejected. In support of his submission, he relies upon
paragraphs 19, 20, 21 and 27 of the counter affidavit filed by respondent
no.4. The said paragraphs read as under:
19. Taking into consideration the complaint raised by the Petitioner vide its letter dated 28.06.2023 and legal notice dated 07.07.2023, the Tender Evaluation Committee looked into the grievances of the Petitioner. During the process vide e-mail dated 21.07.2023 the Respondent No. 5 who was the lowest bidder in the Class-I Local Suppliers category was called upon to submit the submit a detailed breakup of the local content and further provide supporting documents. The copy of e-mail dated 21.07.2023 is hereby annexed as Annexure B.
20.
I state that on 24.07.2023 the Respondent No. 5 sent a letter wherein a detailed breakup of local content calculation along with an undertaking from the Chartered Accountant was provided. The supporting documents consisting of inter alia quotations, declarations from vendors, contractors and suppliers were also provided to substantiate the origin and authenticity of the local content. The copy of letter dated 24.07.2023 along with the documents submitted by the Respondent No. 5 is hereby annexed as Annexure C (Colly).
21.
I state that that the work under the Tender was to be executed in 45 days, however due to the grievances raised by the Petitioner vide its Complaint dated 28.06.2023, no work order was awarded then because the complaint of the Petitioner was being examined. The Tender Evaluation Committee on 21.07.2023 scrutinized and evaluated the documents submitted by the bidders and it was only thereafter the work order was finally issued to the Respondent No. 5 vide Notice of Award dated 28.07.2023. The copy of Minute of Meeting dated 21.07.2023 of Tender Evaluation Committee is hereby annexed as Annexure D. The copy of Award dated 28.07.2023 is hereby annexed as Annexure E.
xxxx xxxx xxxx xxxx
27. I state that the Tender Process was conducted in consonance with the PPPMII Policy and terms of the Tender. I state that after the awarding of work order the Respondent No. 5 has already started the work and substantial part of the work has already been done for which material has been Purchased and installation work has been done at the site. I further state that the work being done by the Respondent No.5 is being monitored and regular updates are being taken from the Respondent No.5.The Respondent No 5 has submitted documents of the local content in the equipment used for the project and the total percentage of local content for the project is above 50% i.e. amounting to INR 4,87,58059/and the imported content is less than 50 % amounting to INR 3,59,65,697/-. The break-up of the local content submitted by the Respondent No. 5 is hereby annexed as Annexure F.
8.
Having perused the paper book, this Court finds that the respondent nos.1 and 2 have specifically averred in their counter affidavit that the petitioners main and sole grievance that over 70% of the value of the bill of quantities of the specific makes (model) as stated in the tender are not manufactured by respondent no.5 in India is incorrect. In fact, respondent nos.1 & 2 in their counter affidavit have specifically averred that the grievances of the petitioner was duly investigated by the Tender Evaluation Committee and it was found that no false representations had been made by the other bidders in respect of the local content.
9.
Though this Court has not examined the issue of the local content as claimed by the respondent no.5, yet keeping in view the aforesaid as well as the fact that the tender has been fully executed by the respondent no.5, this Court is of the view that no further orders are called for.
10.
Accordingly, the present writ petition is dismissed and the next date of hearing is cancelled.
ACTING CHIEF JUSTICE
MANMEET PRITAM SINGH ARORA, J MAY 3, 2024 AS