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Tender for outsourcing of canteen services at FEW Palluruthy. Kochi India — Fertilisers and Chemicals Travancore Limited. Published October 20, Receive tenders like this by October Last Date of Document Collection. TENDER No// DATED (Two Bid). The Fertilisers And Chemicals Travancore Limited (FACT) invites sealed. e-Published Date, Bid Submission Closing Date, Tender Opening Date, Title/Ref. Fertilisers And Chemicals Travancore Ltd.||Head Office - FACT||Corporate.
The company was incorporated in and is under the administrative control of Ministry of Chemicals and Fertilizers, Government of India. The definition of networth and sales for the purpose of the qualifying criteria are set out below: Where sales in the Balance Sheet is inclusive of any taxes and duties, a statement showing sales net of such levies need be provided.
For further details, interested parties may refer to the Securities and Exchange Board of India regulations in this regard. Furthermore, this invitation confers neither any right nor expectation to any party to participate in the said process. In the case of a consortium or joint venture the EoI must be signed by a duly authorised representative for the group.
In addition, Statements of Legal Capacity and RFQs have to be submitted by interested parties and each member of any consortium or joint venture. This comprises the EoI Package. Submission of the aforesaid documents by fax, e-mail or other electronic means will not be acceptable. It is the responsibility of the interested party ies alone to ensure that its EoI with required documents is delivered at the address given below by the stated time and date.
GoI or FACT or Deloitte have the sole discretion to determine the impact of the change in membership on the quality of the consortium and reject a proposal for such reason. Clause 11 is relevant and crucial. We extract the same below: We would refer to clause 13 and the same is W. Delivery of the lots as put up for sale, are subject to change by nature's wear and tear No complaint will be entertained regarding quality or incorrect description for the materials sold once the bid is accepted.
No reason need be assigned in regard thereto. He would complain that the learned Single Judge has not at all adverted to the effect of clause 11 in particular.
In short, his contention is that this is a case where the property in goods has not passed to the 1st respondent. Fundamental error is committed by the learned Single Judgeit is pointed out, in ignoring the impact of clause The learned senior counsel for the first respondent, on the other hand, would submit that there is no merit in the appeal.
The amount involved in the bid is for more than Rs. He would point out that there are three valuation reports. Projects and Development India Ltd. FEDO, which was asked to review of the valuation made by the earlier valuer, conducted a detailed study and reported that the physical assets are having value of Rs.
This valuation was done in August,before the 'e-auction' was W. He would, therefore, point out that the price, which was offered by the first respondent as Rs. He would also submit that this is not a case that there is any justification for the appellant, which is an authority under Article 12 of the Constitution, to not proceed with the sale letter.
He would also point out that, at any rate, having regard to Ext. P7, by which the offer was accepted and confirmed, the property in the goods passed to it. He further submit that however, clauses which are referred to by the appellant relate to the enforcement of the contractual obligation and will not detract from the property of the goods passing to the first respondent. The contention of the 1st respondent is that upon the writ petitioner becoming the highest bidder and what is more bid being accepted and the sale letter being issued, EMD being paid, the writ petitioner being further ready to pay the balance amount and to comply with the conditions otherwise, W.
He would contend that working of clause 7 relates to the enforcement of the contract which already stands concluded with the issuance of Ext.
Fertilisers & Chemicals Travancore : Amc of Ac in Sulphate Plant | MarketScreener
Clause 8 also relates to enforcement of the contract and cannot militate against the concluded sale. As far as clause 11 itself, it is case of the 1st respondent that clause 11 must be understood as falling in two parts, at any rate. According to him, the contract should not be allowed to go through the respondent. We must consider what was it that this court found in the earlier round of litigation culminating in Ext. A number of persons intervened and offered higher price.
While so, the learned Single Judge disposed of the Writ Petition finding intera alia as follows: The sale in question has never been cancelled. The sale was put on hold based on some complaints. According to the appellant company the Board was to take a final decision. Nobody had challenged the sale by raising any allegation or fraud, collusion or any material illegality.
The question to be decided was whether the bid knocked in favour of the writ petitioner and the confirmation granted to him needs to be cancelled, merely because subsequent offers for higher price has come up before the Court. It is here that learned Single Judge took the view that it is for the appellant company to decide at the first instance considering the circumstances prevailing and also considering the legal principles. Learned Single Judge found that according to the counsel for the appellant company, they are not in a position to take any risk by affording a re-tender, especially in view of the fact that bid of the writ petitioner was W.
It was noted that the stand of the company was that it was interested in getting more money. Considering overall situations, the learned single Judge took the view that it is for the respondent company to take final decision on the matter.
In regard to the applicant who sought impleadment except writ petition Nos. The company was asked to take final decision on the question of proceeding with further steps pursuant to the tender confirmed in favour of the petitioner, through decision of its Board of Directors. It was further held if the respondent propose to cancel the bid finalised in favour of the writ petitioner, they should be given opportunity of personal hearing and a reasoned order is to be passed.
It is inter alia directed to decide the question as to whether there exist any valid reasons for cancellation of the bid, which was confirmed in favour of the petitioner, taking note of all the facts and circumstance prevailing and on the observations contained in W. R1 f purports to be the minutes of the th meeting of the Board. R1 f reveals that the matter was discussed at some length and different opinions were expressed by the Directors.
It reads as follows: Extract from the Minutes of th meeting of the board held on 9. The Board considered the representation received from various parties, who had filed impleading petitions before the Hon'ble High Court of Kerala, making their offers. Annan Steels P Ltd. He also told that others who are promising higher amounts are not regular buyers of scrap and they are only interested to get commission from him for ensuring trouble free sale. Vijayakumar requested to confirm the sale order in favour of them and expressed willingness to remit the balance amount.
They have produced before the Board a Solvency certificate for Rs. Tamilnadu Mercantile Bank Ltd. The Board observed that the huge difference in the value of structural steels, reformer tubes etc. It was also opined that since the market value of nickel is around Rs. The dismantling cost is based on quantity and not on the rate W.
This is also not realistic. Neyveli Lignite Corporation Ltd. NLC fetched an amount of Rs. The Board noted that there was a complaint that NLC had imported certain goods under the concessional rate of custom duty for use in the revamping of the said Fertilizer plant and put up for sale.
The Board expressed doubt about whether the issue relating to customs duty is properly addressed while taking a decision on the sale of scrapped plant of FACT CD. The Hon'ble High Court of Kerala had directed the parties who had filed impleading petitions, to submit their representation before the Board of FACT and they have offered higher amount for the scrapped plant as compared to HI offer received against e-tender.
Annam, Steels P Ltd. Annam, Steels is the third tender floated through MSTC and the participation of the tender was through open bidding process only. The discovery of the actual realizable value would be effected only through tendering by way of market forces and expressed doubt about higher realization in the event of re- tendering. Chandrasekharan, Director Marketing said that the only way to know the correct price would be through tendering process.
Anil, Director Technical informed that there were certain additions to the Ammonia-Urea plant in around through import and the customs duty aspect thereof need to be examined.
Annam Steels has already given a letter informing FACT about their financial loss due to delay in processing the tender in their favour. As informed, FACT's scrapped plant is having reformer tubes, and the value, therefore, would be higher than what has been indicated in the valuation report.
Gupta, Director, said that the reports of outside Consultants have to be internally discussed before their finalization and acceptance by the Company. He stated that instead of Board evaluating the value of the scrap on its own, it would be better that the instances and valuation of similar scrap items in case of RCF and NLC are also brought to the notice of EIL.
EIL should suitably consider the same in their valuation and submit a revised report. Given that a decision in the matter is required to be taken urgently in order to comply with the orders of the Hon'ble High Court, Dr.
Significant differences amongst the three valuation reports and the recent sale of reformer tubes by RCF at a much higher price than what has been indicated in the three reports clearly point out to the conclusion that none of the three reports could be relied upon and fair value of the ammonia urea plant would be significantly higher. The NLC scrap sale clearly indicates that the ammonia urea plant has the potential to fetch a much higher price on re-tendering.
After deliberation, the Board considered the following: The parties who have filed the impleading petitions before the Hon'ble High Court of Kerala in their representation submitted to FACT, have offered higher amount. The issue of customs duty on imported items used in the ammonia-urea plant is not thoroughly analysed. Annam Steels P Ltd. Learned senior counsel for the appellant-FACT drew support from the following case law: In Michigan Rubber India Ltd.
State of Karnataka and Others 8 SCCthe Apex Court was dealing with the question as to whether state and their undertaking have discretion to set tender conditions and whether the court may interfere on the grounds that some other terms could have been fairer, wiser or more logical. The court took the view that the Government and their undertakings must have a free hand in setting terms of the tender and only if they are arbitrary, discriminatory, mala fide or actuated by bias, the court would interfere.
In this case the court was dealing with the case of challenge to the awarding of contract to the 2nd respondent in the writ petition on the ground that he had not complied with eligibility requirements in NIT. Paragraph 17 reads as follows; " In Raunaq International Ltd.
Meerut Development Authority v. This decision related to disposal of public property by an instrumentality of the State. In the said context, the Court inter alia held as follows; " A tender is an offer. It is something which invites and is communicated to notify acceptance.
Broadly stated it must be unconditional; must be in the proper form, the person by whom tender is made must be able to and willing to perform his obligations. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.
Fertilisers And Chemicals Travancore Limited (FACTL) eProcurement Tenders
However, a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor-made to suit the convenience of any particular person with a view to eliminate all others from participating in the biding process. The bidders participating in the tender process have no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tenders in a transparent manner and free from hidden agenda.
One cannot challenge the terms and conditions of the tender except on the above stated ground, the reason being the W. No bidder is entitled as a matter of right to insist the authority inviting tenders to enter into further negotiations unless the terms and conditions of notice so provided for such negotiations.
It is so well settled in law and needs no restatement at our hands that disposal of the public property by the State or its instrumentalities partakes the character of a trust. The methods to be adopted for disposal of public property must be fair and transparent providing an opportunity to all the interested persons to participate in the process.
The Authority has the right not to accept the highest bid and even to prefer a tender other than the highest bidder, if there exist good and sufficient reason, such as, the highest bid not representing the market price but there cannot be any doubt that the Authority's action in accepting or refusing the bid must be free from arbitrarinesses or favouritism".
Kisan Sahkari Chini Mills Ltd. Vardan Linkers 12 SCC There were six State controlled sugar mills in Uttaranchal State which produced molasses. Sale of molasses by them was controlled by the Molasses Sale Committee constituted by the State Government.
On the basis of tender received the Committee permitted the respondent in the appeal to lift 85, quintals of molasses from the mills at a particular price. The Government received a report that the W. In the amended writ petition filed by the respondents, the High Court took the view that there was a concluded contract and that having regard to the doctrines of part-performance, legitimate expectation, estoppel and acquiescence, cancellation of the allotment letter was unsustainable.
Probably this is a case which is closest to the facts of the instant case and in fact relied on by the learned Single Judge also. We may refer to paragraphs 23 and 24, which are quoted herein as follows: If the dispute was considered as purely one relating to existence of an agreement, that is, whether there was a concluded contract and whether the cancellation and consequential non- supply amounted to breach of such contract, the first respondent ought to have approached the civil court for damages.
In a civil suit, the emphasis is on the contractual right. The issue whether there was a concluded contract and breach thereof becomes secondary. In exercising writ jurisdiction, if the High Court found that the exercise of power in passing an order of cancellation was not arbitrary W.
Even in cases where the High Court finds that there is a valid contract, if the impugned administrative action by which the contract is cancelled, is not unreasonable or arbitrary, it should still refuse to interfere with the same, leaving the aggrieved party to work out his remedies in a civil court. In other words, when there is a contractual dispute with a public law element and a party choose the public law remedy by way of a writ petition instead of a private law remedy of a suit, he will not get a full-fledged adjudication of his contractual rights, but only a judicial review of the administrative action.
Fertilisers And Chemicals Travancore Limited Tender.
The question whether there was a contract and whether there was a breach, may however be examined incidentally while considering the reasonableness of the administrative action. But where the question whether there was a contract is seriously disputed the High Court cannot assume that there was a valid contract and on that basis, examine the validity of the administrative action.
Our attention was drawn by the learned counsel to the decision in Tata Cellular v. Union of India 6 SCC It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism.
However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State.
It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government.
But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the government tries to get the best person or the best quotation.
The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down. Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself.
The duty of the court is to confine itself to the question of legality. Its concern should be ; 1. Whether a decision-making authority exceeded its powers?
Committed an error of law, 3. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. This means the decision- maker must understand correctly the law that regulates his decision-making power and must give effect to it. Irrationally, namely Wednesbury unreasonableness.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact in R. Secretary of State for the Home Department, ex Brind Lord Diplock 1 ACLord Diplock refers specifically to one development namely, the possible recognition of the principle of proportionality.
In all these cases the test to be adopted is that the court should "consider whether something has gone wrong of a nature and degree which requires its intervention". Two other facets of irrationality may be mentioned. It is open to the court to review the decision- maker's evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision -maker.
If the weight of facts pointing to one course of action is overwhelming, then a decision the other way cannot be upheld. Thus, in Emma Hotels Ltd v. The divisional Court analysed the factors which led the Secretary of State to that conclusion and, having done so, set it aside. A decision would be regarded as unreasonable if it is impartial and unequal in its operation as between different classes.
On this basis in R. Barnet London Borough Council, ex. Johnson 35 88 LGR 73 the condition imposed by a local authority prohibiting participation by those affiliated with political parties at events to be held in the authority's parks was struck down.
There is no unfettered discretion in public law: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is "fairplay in action". The learned counsel for the 1st respondent drew our attention to the following case law; 1. The State of Bombay and Another v.
Balsara SCR The Apex Court took the view that Article 19 1 f of the Constitution was wide enough to include movable as well as immovable property.
It is pertinent to note that Article 19 f stands deleted. No doubt, ' property' would take in unless in the context it is having limited meaning movable W.
The Apex Court while dealing with the case of sale of teas by auction took the view that the property in the goods passed when the contract was accepted on the fall of the hammer in Fort Cochin which fell at that time in the Madras State. Agricultural Market Committee v. Shalimar Chemical Works Ltd. The Apex Court took the view that when conditions for applicability of Section 20 of Sale of Goods Act was satisfied viz.
Paragraphs 39 and 41 of the above decision reads as follows: Section 20which contains the first rule for ascertaining the intention of the parties, provides that where there is an unconditional contract for the sale of "specific goods" in a "deliverable state", the property in the goods passes to the buyer when the contract is made. This indicates that as soon as a contract is made in respect of specific goods which are in a deliverable state, the title in the goods passes to the purchaser.
The passing of the title is not W. If the time for payment of price or the time for delivery of goods, or both, is postponed, it would not affect the passing of the title in the goods so purchased.
In order that Section 20 is attracted, two conditions have to be fulfilled: If these two conditions are satisfied, Section 20 becomes applicable immediately and it is at this stage that it has to be seen whether there is anything either in the terms of the contract or in the conduct of the parties or in the circumstances of the case which indicates a contrary intention.
This exercise has to be done to give effect to the opening words, namely, "Unless a different intention appears" occurring in Section 19 3. In Hoe Kim Seing v. Maung Ba Chit it was held that intention of the parties was the decisive factor as to when the property in goods passes to the purchaser.
If the contract is silent, intention has to be gathered from the conduct and circumstances of the case. Dist Board, Hoshiarpur v. A Division Bench of the said Court held that physical delivery of goods is not essential and sale can be completed without affecting immediate delivery or even without immediate payment.
This is a case of an auction sale of company's assets to the highest bidder. The court referred to the decision in Kayjay Industries P Ltd. Asnew Drums P Ltd. The court reasoned that if there is fraud, as fraud vitiates everything, it would be a different matter. It would also be a different matter if the auction was held without adequate publicity in the well known newspapers having wide circulation.
It is further held that the situation may be different if an auction sale is finalised for Rs. The court held that in this situation it is possible to infer that there was some fraud. The court took the view that once the sale is confirmed by the authority in the case of auction, certain rights accrued in favour of the auction purchaser and these rights cannot be extinguished except in exceptional cases such as fraud.
It is to be noticed that the case related to a court auction. The counsel also refers to the decision reported in Kumari Shrilekha Vidyarthi and others v. Paragraph 20 of the said decision reads as follows; " Even apart from the premise that the 'office' or 'post' of DGCs has a public element which alone is sufficient to attract the power of judicial review for testing validity of the impugned circular on the anvil of Article 14we are also clearly of the view that this power is available even without that element on the premise that after the initial appointment, the matter is purely contractual.
Applicability of Article 14 to all executive actions of the State being settled and for the same reason its applicability at the threshold to the making of a contract in exercise of the executive power being beyond dispute, can it be said that the State can thereafter cast off its personality and exercise unbridled power unfettered by the requirements of Article 14 in the sphere of contractual matters and claim to be governed therein only by private law principles applicable to private individuals whose rights flow only from the terms of the contract without anything more?.
We have no hesitation in saying that the personality of the State, requiring regulation of its conduct in all spheres by requirements of Article 14does not undergo such a radical change after the making of a contract merely because some contractual rights accrue to the other party in addition.
It is not as if the requirements of Article 14 and contractual obligations are alien concepts, which cannot co- exist. On the other hand, the learned counsel for the writ petitioner would contend that there is no fraud committed in the matter of holding the auction.
There are no irregularities attending the sale. He would point out that a mistake as to fact hardly suffices to vitiate a contract. He relied on Section 25 of the Contract Act to point out that mere inadequacy of consideration cannot vitiate the contract. The learned counsel would submit that there is an unconditional contract of sale of specific goods in a deliverable state and there is nothing which militates against the passing of title with the sale being confirmed.
P7, the property of the goods passed. FACT could not divest the writ petitioner of its title to the goods. The decision not to proceed with the sale was clearly illegal. The State could not proceed to re- auction the property of another in view of the fact that the title had passed to the writ petitioner. The State could not act in an arbitrary manner. He also drew support from clause 13 of W.
P5 and contended that it clearly shows that the property had been passed by virtue of the confirmation of the sale as it is is stated therein that after confirmation of the sale, the goods left are at the risk of the buyer. Therefore, there cannot be any doubt that the property had passed to the successful bidder. He also would point out clause 46 of Ext.
Cancel the contract with immediate effect for the materials under the contract not taken delivery by the bidder as on that date, in which case the Performance Bank Guarantee will be invoked. The learned senior counsel for the first respondent further submits that clause 46 was available only when there is a breach by the buyer and it enables cancellation of the contract among other remedies. And Others JT 10 SCthere is jurisdiction with writ court to decide the disputed question of facts.
JT 8 SC 1. In paragraph 10 of the said decision, the Apex Court held as follows; " It is clear from the above observation of this Court in the said case, though a writ was not issued on the facts of that case this Court has held that on a given set of facts if a State acts in any arbitrary manner even in a matter of contract, an aggrieved party can approach the court by way of writ under Article of the Constitution and the court depending on facts of the said W.
This Judgment in K. State of Mysore was followed subsequently by this Court in the case of D. Ram Sanehi Singh wherein this Court held: We are unable to hold that merely because the source of the right which the respondent claims was initially in a contract, for obtaining relief against any arbitrary and unlawful action on the part of a public authority he must resort to a suit and not to a petition by way of a writ.
In view of the judgment of this Court in K. Guruswamy case supra there can be no doubt that the petition was maintainable, even if the right to relief arose out of an alleged breach of contract, where the action challenged was of a public authority invested with statutory power.