TMI Blog2015 (1) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... fy for the technical evaluation were not satisfied and therefore, the petitioner was not found to be eligible and qualified for technical Evaluation. A perusal of Annexure B5 to the petition which is the minutes of NFHS-4 committee for determining prequalification of field work agencies for technical evaluation makes it clear that it was mentioned therein that the petitioner company had not submitted the survey experience of at least five years with at least one large scale survey and therefore the petitioner company was disqualified - The representative of the petitioner company being was personally present and he appended his signatures on the attendance sheet - the contention of the petitioner that the completion certificate dated 26.03.2014 is required to be considered is misconceived - The requirement as per the tender documents was for last five years which was not received along with the pre-bid documents - therefore it shall not be appropriate to accept the contention of learned advocate for the petitioner – Decided against petitioner. - SCA NO. 9019 of 2014 With CIVIL APPLICATION NO. 10314 of 2014 In SCA NO. 9019 of 2014 With CIVIL APPLICATION NO. 9201 of 2014 In CIVI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present petition is filed. 3. Mr. R.S. Sanjanwala, learned advocate appearing for the petitioner submitted that the action of the respondent in summarily rejecting the pre-bid of the petitioner company despite having complied with all the requirements as per the eligibility criteria of the bid and having been qualified in every aspect is unjust, irrational and arbitrary. He submitted that the decision of respondent to disqualify the petitioner on the ground of lack of five years experience is totally irrational in view of the fact that the petitioner company had been incorporated on 17.03.2009 and since then the petitioner company has been successfully conducting surveys with respondent as well as other organisations without any complaint whatsoever. 3.1 Mr. Soparkar has drawn the attention of this Court to page 440 to the petition, more particularly, Sr. No. 3 4 of Clause 6 being Eligibility Criteria for Technical Evaluation as mentioned in Draft RFP, NFHS-4 (2014-15) which read as under: Sl. No. Pre-Qualification Criteria Proof/Documents Required * * * * * * * ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cs, experience of large scale survey will not be mandatory. 3.5 Mr. Sanjanwala submitted that considering the above checklist and the guidelines, the petitioner company has met with the requirements. He submitted that as per the pre-bid eligibility requirements, the petitioner was required to submit documents pertaining to one large scale survey whereas the petitioner submitted documents pertaining to survey conducted during last five years and therefore the decision of respondent in disqualifying the petitioner company is erroneous. 3.6 Mr. Sanjanwala has drawn the attention of this Court to para 4 of the affidavit-in-reply filed by the respondent which states that the claim of the petitioner to be actively involved in carrying out surveys in all over India is not evident from the documents submitted as part of the Bid document where only one survey has been mentioned. He submitted that if the list of documents required as mentioned on page 312 is compared with page 420 of the petition, it is clear that the documents provided by the petitioner company fulfilled the eligibility criteria and therefore the rejection of the petitioner s bid was wrong. 3.7 Mr. Sanjanwala conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than 50,000 lines. In this regard, it may be mentioned that in their tender offer NHL had mentioned that : (i) NHL is a joint venture company established by Thomson Press (India) Limited (TPI), Living Media (India) Limited (LMI), World Media Limited (WML) and Integrated Information Pvt. Ltd, (IIPL), a wholly-owned subsidiary of Singapore Telecom wherein 60% of shares are held by Mr Aroon Purie, TPI, LMI, WML and other companies in the same group and 40% of shares are held by IIPL; (ii)The joint venture has received approval of the Government of India and is currently in operation; (iii)NHL has been established as an information and database management company with expertise in database processing, publishing, sales/marketing and the dissemination of related information; and (iv)In addition to its projected strength, NHL has access to the benefit of the complete resources and strength of its parent/owning companies, each of which is a recognized market leader. 14. In the counter-affidavit filed on behalf of Respondents 1 to 3 in the High Court it was stated that as per the averments in the writ petition TPI and LMI had printed and bound the telephone directories for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or granting other forms of largesse, the Government cannot act arbitrarily at its sweet will and like a private individual, deal with any person it pleases, but its action must be in conformity with the standards or norms which are not arbitrary, irrational or irrelevant. It is, however, recognised that certain measure of free play in the joints is necessary for an administrative body functioning in an administrative sphere [See : Ramana Dayaram Shetty v. International Airport Authority of India (SCR p. 1034 : SCC pp. 505-06, para 12); Kasturi Lal Lakshmi Reddy v. State of J K (SCR p. 1355 : SCC pp. 11- (1979) 3 SCC 489: (1979) 3 SCR 1014 (1980) 4 SCC 1 :(1980) 3 SCR 1338 490 12, para 11); Fasih Chaudhary v. Director General, Doordarshan (SCR p. 286 : SCC p. 92,); Sterling Computers Ltd. v. M N Publications Ltd.; Union of India v. Hindustan Development Corpn.]. 21. Wednesbury principle of reasonableness to which reference has been made in principle (5) aforementioned is contained in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn7. In that case Lord Greene, M.R. has held that a decision of a public authority will be liable to be quashed or ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company after leaving it. The new company, though having persons with experience in the field, has no experience in its name while the original company having experience in its name lacks persons with experience. The requirement regarding experience does not mean that the offer of the original company must be considered because it has experience in its name though it does not have experienced persons with it and ignore the offer of the new company because it does not have experience in its name though it has persons having experience in the field. While considering the requirement regarding experience it has to be home in mind that the said requirement is contained in a document inviting offers for a commercial transaction. The terms and conditions of such a document have to be construed from the standpoint of a prudent businessman. When a businessman enters into a contract whereunder some work is to be performed he seeks to assure himself about the credentials of the person who is to be entrusted with the performance of the work. Such credentials are to be examined from a commercial point of view which means that if the contract is to be entered with a company he will look into t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he persons working with the company is also required to be taken into consideration as it is the experience of the persons that makes the work done. He has drawn the attention of this Court to the credentials of the people behind the petitioner company and submitted that the team of the company has the required credentials and capacity to carry out the work of NFHS-4 successfully. 4. Mr. K.B. Trivedi, learned Senior Counsel appearing with Mr. Sanjay Mehta and Mr. Dharmesh Shah, learned advocates for the respondents submitted that the petitioner has tried to suppress material facts or in other words has mentioned only half truth before the Court. He submitted that if we look at paragraph 6 of the petition and paragraph 11 of the affidavitin- rejoinder, it will be clear that the documents which are sought to be relied upon today were not produced along with the pre bid documents. 4.1 Mr. Trivedi submitted that the respondent agrees with the description given by the petitioenr about re-bidding for implementation of NFHS-4 in 22 states, which is the decision of the Committee. He submitted that however the respondent disagrees with the reason cited towards no action taken against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , then also on the basis of the same the petitioner No. 1 would not have been meeting with the requirements of eligibility criteria qualifying for Technical Evaluation. Despite this fact, the petitioners in the rejoinder have made a false statement in paragraph 11 at page 142 that Annexure R1 is the copies of surveys conducted during last 5 years and submitted before the respondent . Thus, the petitioners have wrongly stated before this Hon ble court that the bid of the petitioner no. 1 is rejected on account of Black Listing of the petitioner No. 1. 7. I Annex hereto as Annexure B5 the minutes of the NFHS-4 committee for determining prequalification of field work agencies for technical evaluation, which clearly show that the petitioners had not submitted the survey experience of at least 5 years with at least 1 large scale survey , wherein the reason for disqualification of the petitioner no. 1 is also very specifically stated. It is further pertinent to note that when the eligibility criteria for qualifying for technical evaluation were opened for scrutiny, the petitioner no. 2 was very much present on 9th June, 2014 and he has also signed the attendance sheet on 9th June, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prequalification criteria more particularly copies of the work order and certificate of completion to establish that petitioner No. 1 had at least 5 years working experience on large scale household surveys as well as field survey experience which was to be provided in the format given in Appendix H . Thus, the conditions for providing the eligibility criteria to qualify for the technical evaluation were not satisfied and therefore, the petitioner no. 1 was not found to be eligible and qualified for technical Evaluation. 5.1 It is required to be noted that a perusal of Annexure B5 to the petition which is the minutes of NFHS-4 committee for determining prequalification of field work agencies for technical evaluation makes it clear that it was mentioned therein that the petitioner company had not submitted the survey experience of at least five years with at least one large scale survey and therefore the petitioner company was disqualified. The representative of the petitioner company being petitioner no. 2 was personally present and he appended his signatures on the attendance sheet. 5.2 Therefore, keeping in mind the said condition of tender, the petitioner ought to have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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