[Make in India? ] Allegation Of Govt Discriminating Against Indian Bidders: Delhi HC Directs PMO To Bring It To The Attention Of PM If Bidder Files Representation

A Division Bench of Justices Vipin Sanghi and Rekha Palli refused to stay the Tender process on account of inordinate delay made by the Petitioner in approaching the Court.

However, it noted that this tender was process was found to be irregular by the High Court in another case and thus, it would be appropriate to grant liberty to the Petitioner to approach the highest authorities.

"We also permit the petitioner to make a representation addressed to the Hon'ble Prime Minister of India highlighting the aspects with regard to wrongful evaluation of the bids and discrimination meted out to some of the bidders.

In case such a representation is made, we request the PMO to ensure that the same receives the attention of the Hon'ble Prime Minister of India.

We are inclined to grant this liberty to the petitioner in the light of the fact that the petitioner is an Indian manufacturer and we had earlier found merit in the claim of the petitioner in Macpower CNC Machines Limited v. Union of India (supra) that Indian bidders are being discriminated against, even though the tender conditions itself stipulated that Indian manufacturers would be given preference," the order stated.

Background

The case of the Petitioner, Bharat Fritz Werner Limited, was that it was disqualified from the Tender process without assigning any reasons. It was also pointed out that the contract was awarded to Respondent No. 2, even though the Petitioner's financial bid was substantially lower than that of Respondent No. 2.

The Petitioner's counsel further informed the Court that in Macpower CNC Machines Limited v. Union of India, WP 3942/2020, another Division Bench of the Delhi High Court (led by the same Judge, Justice Vipin Sanghi) had after examining the records relating to the same tender, found various infirmities in the matter of evaluation of the various bids and the discriminatory treatment meted out to some of the bidders.

It was contended that the Petitioner is also a victim of the same illegal process.

Findings

The Court noted that there was merit in this contention, as already discussed in Macpower CNC Machines (supra) and thus, granted liberty to the Petitioner to institute appropriate civil proceedings.

I]It also granted liberty to the Petitioner to approach the PMO, for appropriate action. The order stated,

"Keeping in view the fact that the Government of India is laying emphasis on "Make in India" (AtmaNirbharta), the grievances of the petitioner appear to be correct and in our view require serious consideration at the highest level."

However, the Bench refused to interfere in the tender process or grant any relief to the Petitioner on account of doctrine of laches. It said,

"As noticed hereinabove, the contract already stands awarded to respondent No. 2 in June 2020. Keeping in view the fact that substantial time has elapsed since the award of the tender in favour of respondent No. 2, we are not inclined to interfere in these proceedings at this stage. We have therefore, not gone into the merits of the petitioner's claim or the respondent's defence.

In these circumstances, even though we are not inclined to interfere with the award of the tender in favour of respondent No. 2 at this stage, we make it clear that it shall be open for the petitioner to raise all its pleas and claim whatever relief is available to him at this stage in appropriate civil proceedings."

Senior Advocate Akhil Sibal and Advocate Gaurav Juneja appeared for Petitioner; Standing Counsel Harish Vaidyanathan Shankar for UoI; Advocate Moazzam Khan for Respondent No. 2.

Case Title: Bharat Fritz Werner Ltd. v. Union of India & Anr.

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