M/S Savex Technologies Pvt. Ltd. & Anil Jagasia v. Vikram Sarabhai Space Centre (VSSC)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 08TH DAY OF JANUARY 2020 / 18TH POUSHA, 1941** ## **WP(C).No.22043 OF 2019(E)** ## **PETITIONERS:** **1 M/S. SAVEX TECHNOLOGIES PVT. LTD., 124, MAKER CHAMBERS III, NARIMAN POINT, MUMBAI-400 021, REPRESENTED BY ITS DIRECTOR MR. ANIL JAGASIA. 2 ANIL JAGASIA, 16, SOONA MAHAL, MARINE DRIVE, MUMBAI-400002.** **BY ADVS.** **SRI.JOSEPH KODIANTHARA (SR.) SRI.ABRAHAM JOSEPH MARKOS SRI.ISAAC THOMAS SRI.P.G.CHANDAPILLAI ABRAHAM SHRI.VIPIN ANTO H.M. SHRI.ALEXANDER JOSEPH MARKOS SHRI.SHARAD JOSEPH KODANTHARA** ## **RESPONDENT:** **VIKRAM SARABHAI SPACE CENTRE(VSSC), MAIN BUILDING, VIKRAM SARABHAI SPACE CENTRE, THUMBA P.O., TRIVANDRUM, KERALA, PIN-695 022, REPRESENTED BY ITS DIRECTOR.** **R1 BY SRI.K.R.RAJKUMAR, C.G.C. SRI.P.VIJAYAKUMAR ASC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 W.P.(C) No.22043 of 2019 ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **W.P.(C) No.22043 of 2019** ## **-----------------------------------------------** ## **Dated 8[th] January, 2020.** ## **J U D G M E N T** Ext.P17 communication of the respondent in terms of which the first petitioner was informed that they are not eligible to participate in Ext.P1 tender floated by the respondent, is under challenge in the writ petition. 2. The respondent floated Ext.P1 tender for online bids for supply, installation and commissioning of a High Performance Computing System at Vikram Sarabhai Space Centre, Thiruvananthapuram. It is prescribed in the tender notice that the bidder must be either an original equipment manufacturer of servers or their respective Indian subsidiary or their authorised High Performance Computing System Integrator in India. It is also prescribed in the tender notice that if the bidder is a High Performance Computing System Integrator of an eligible original equipment manufacturer in India, they must have installed and commissioned at least one Central Processing Unit based High 3 W.P.(C) No.22043 of 2019 Performance Computing System in India having sustained compute power of minimum 100 TF in the last five years on the date of publication of the request for proposal in order to become eligible to participate in the tender. 3. The first petitioner is a company and the second petitioner is a Director and share holder of the first petitioner company. It is stated that the first petitioner was eligible to participate in Ext.P1 tender in their capacity as the authorised High Performance Computing System Integrator of an original equipment manufacturer and they have, accordingly, submitted their bid pursuant to Ext.P1 tender. Ext.P1 tender notice, among others, provides that the bidders shall submit along with the tender, copies of the purchase orders and installation reports in their name in support of the eligibility criteria prescribed. It is stated by the petitioners that after the submission of the bid, the respondent had called upon the first petitioner to produce copies of the purchase orders and installation reports in their name to prove their eligibility and they have accordingly submitted the required documents. It is also stated by the petitioners that while so, it has come to their notice that the respondent had opened the bids pursuant to Ext.P1 4 W.P.(C) No.22043 of 2019 tender notice and invited other bidders for clarifications on their technical bids. The writ petition was filed at that point of time seeking, among others, a declaration that the first petitioner is eligible to participate in Ext.P1 tender and for directions to the respondent to consider the bid submitted by the first petitioner also. 4. A statement has been filed by the respondent in the matter on 03.09.2019, stating among others that the first petitioner was found to be ineligible to participate in the tender process pursuant to Ext.P1 notice. 5. On 23[rd] September 2019, this court passed an interim order in this matter directing the respondent to communicate to the petitioners the reason, on the basis of which the technical bid submitted by the first petitioner in response to the tender notice has been rejected. Pursuant to the said interim order, the first petitioner has been issued Ext.P17 communication by the respondent. 6. On receipt of Ext.P17 communication, the writ petition was amended and Ext.P17 communication has also been challenged in the writ petition. 7. The respondent has later filed a detailed counter W.P.(C) No.22043 of 2019 5 affidavit in the matter. The stand taken by the respondent in the counter affidavit, in essence, is that the first petitioner did not satisfy the eligibility criteria in terms of the tender notice, as they being a participant in the tender process in their capacity as a system integrator of the original equipment manufacturer, they should have produced along with their bid, copies of the purchase orders and installation reports in their name to establish the eligibility criteria viz, that they have installed and commissioned at least one system of the same nature, and that they have not produced the same. 8. Heard the learned Senior Counsel for the petitioners and the learned Central Government Counsel for the respondent. 9. The learned Senior Counsel for the petitioners submitted that the first petitioner has supplied, installed and commissioned a system of the same nature as required in terms of the tender notice at the Indian Institute of Technology, Delhi as also at the Indian Institute of Technology, Kanpur. Placing reliance on a purchase order dated 30.1.2015 issued by the Indian Institute of Technology, Delhi and an installation report dated 09.05.2017, which are part of Ext.P8 communication sent by the first petitioner to the 6 W.P.(C) No.22043 of 2019 respondent, the learned Senior Counsel submitted that the said documents would satisfy that the petitioners have supplied, installed and commissioned a similar system at Indian Institute of Technology, Delhi. Similarly, Placing reliance on a purchase order dated 24.09.2013 issued by the Indian Institute of Technology, Kanpur and an installation report dated nil which are part of Ext.P8 communication sent by the first petitioner to the respondent, the learned Senior Counsel submitted that the said documents would show that the petitioners have supplied, installed and commissioned a similar system at Indian Institute of Technology, Kanpur. Placing reliance on a communication dated 01.02.2019 of Hewlett Packard Enterprise, the learned Senior Counsel for the petitioners submitted that the said document would establish that the first petitioner is an authorised High Performance Computing System Integrator of Hewlett Packard Enterprise, an original equipment manufacturer. According to the learned Senior Counsel, in the light of the aforesaid documents, the finding rendered by the respondent that the first petitioner is not eligible to participate in the tender process is arbitrary. 10. Per Contra, the learned Central Government W.P.(C) No.22043 of 2019 7 Counsel contended that the documents on which reliance was placed by the learned Senior Counsel for the petitioners do not establish that the first petitioner is eligible to participate in the tender process. 11. I have considered the rival contentions of the parties. It is not disputed that as a System Integrator of the original equipment manufacturer, the first petitioner was required to produce, in terms of the tender document, copy of at least one purchase order and installation report in their name. The relevant clause in the tender document reads thus: “If the bidder is a HPC system integrator in India authorised by eligible Server OEM, the bidder must have installed and commissioned at least one CPU Based HPC System in India having sustained (Rmax) compute power of minimum 100 TF in last 5 years on the date of publication of this RFP. The purchase order and installation certificates from the End user in the name of bidder to this effect must be submitted with the bid document. (Any phototype installation/test set-up or installation in bidder's or its affiliated premises will not be accepted.” (underline supplied) 8 W.P.(C) No.22043 of 2019 A perusal of the purchase order dated 30.01.2015 claimed to have been issued by the Indian Institute of Technology, Delhi to the first petitioner as produced by the first petitioner before the respondent does not indicate that the same is one issued in the name of the first petitioner, the bidder. It is issued in the name of M/s Savex Singapore PTE Ltd. The learned Senior Counsel for the petitioners submitted that M/s Savex Singapore PTE Ltd. Is a fully owned subsidiary of the first petitioner and therefore, the same must be treated as one issued to the first petitioner. It was also contended by the learned Senior Counsel that the purchase order was obtained in the name of the subsidiary of the first petitioner so as to raise a foreign currency invoice against the purchaser for their tax benefits. Be that as it may. The installation report dated 09.05.2017 claimed to have been issued by the Indian Institute of Technology, Delhi to the first petitioner as produced by the first petitioner before the respondent does not also indicate that the installation of the system was made by the first petitioner. The said document would only indicate that an official of Indian Institute of Technology, Delhi has confirmed the installation of a system in the letter head of the first petitioner. It is not clear from the materials on record as to the 9 W.P.(C) No.22043 of 2019 reason for such a confirmation by the Indian Institute of Technology, Delhi in the letterhead of the first petitioner. It is relevant in this context to refer to Annexure R1 (b) produced by the first petitioner before the respondent. In terms of the said document, the Indian Institute of Technology, Delhi has confirmed that they have procured a High-Power Computing System of M/s. Hewlett Packard Enterprise from M/s. Savex Singapore PTE Ltd. Similarly, it is confirmed in the said document that the system referred to therein was installed by M/s Hewlett Packard Enterprise. If one goes by Annexure R1(b) letter issued by the Indian Institute of Technology, Delhi, it is clear that the purchase order and the installation report referred to by the petitioners to satisfy their qualification criteria are not issued to the first petitioner. Even if it is taken that the supplier mentioned in the purchase order issued by the Indian Institute of Technology, Delhi is a fully owned subsidiary of the first petitioner and the said purchase order can be regarded as one issued in favour of the first petitioner, there is no satisfactory material to indicate that the installation of the system referred to therein is one made by the first petitioner. Similarly, purchase order dated 24.09.2013 issued by the Indian Institute of Technology, Kanpur as produced by the first petitioner 10 W.P.(C) No.22043 of 2019 before the respondent also is one issued in the name of M/s Savex Singapore PTE Ltd., and not in the name of the first petitioner in terms of the requirement of the tender. The installation report in relation to the said system is also one similar to the installation report made available by the petitioners in respect of the system procured by the Indian Institute of Technology, Delhi. Even the letter of M/s Hewlett Packard Enterprise, on which reliance was placed by the learned Senior Counsel for the petitioners, would only indicate that the first petitioner is their authorised distributor. The said document also does not in any way help the first petitioner to satisfy that they have the eligibility to participate in the subject tender. In short, in a case of this nature, the respondent cannot be faulted for having taken the view that the first petitioner has not produced the purchase order and installation certificates from the end-user in their name to the effect that they have installed and commissioned at least one Central Processing Unit based High Performance Computing System in India having sustained compute power of minimum 100 TF in the last five years so as to establish their eligibility to participate in the tender process. I take this view also for the reason that it is trite that authorities procuring 11 W.P.(C) No.22043 of 2019 sophisticated systems of the instant nature are the best persons to understand and appreciate their requirements and interpret their documents and the courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions [See **Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd.** , (2016) 16 SCC 818]. The petitioners do not have a case that the decision of the tender inviting authority which is impugned in the writ petition is one vitiated by malice. Similarly, the decision cannot be said to be perverse as well. In the aforesaid circumstances, the writ petition is devoid of merits and the same is, accordingly, dismissed. **Sd/-** ## **P.B.SURESH KUMAR, JUDGE.** YKB 12 W.P.(C) No.22043 of 2019 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE RELEVANT PORTIONS OF THE TENDER DOCUMENT.** - **EXHIBIT P2** **TRUE COPY OF THE RELEVANT PORTION OF THE BID DOCUMENT (WITHOUT TECHNICAL OR COMMERCIAL TERMS).** - **EXHIBIT P3 TRUE COPY OF RECEIPT NO.29412 ISSUED BY THE RESPONDENT TO THE IST PETITIONER.** - **EXHIBIT P4 TRUE COPY OF EMAIL DATED 23.5.2019 ISSUED BY THE IST PETITIONER TO THE RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF EMAIL DATED 27.5.2019 ISSUED BY THE IST PETITIONER TO THE RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF EMAIL DATED 12.6.2019 ISSUED BY THE RESPONDENT TO THE IST PETITIONER.** - **EXHIBIT P7 TRUE COPY OF EMAIL DATED 14.6.2019 ISSUED BY THE IST PETITIONER TO THE RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF EMAIL DATED 14.6.2019 ISSUED BY THE 1ST PETITIONER TO THE RESPONDENT WITH CLARIFICATIONS.** - **EXHIBIT P9 TRUE COPY OF EMAIL DATED 18.6.2019 ISSUED BY THE 1ST PETITIONER TO THE RESPONDENT.** - **EXHIBIT P10 TRUE COPY OF EMAIL DATED 18.6.2019 ISSUED BY THE 1ST PETITIONER TO THE RESPONDENT.** 13 W.P.(C) No.22043 of 2019 - **EXHIBIT P11** - **TRUE COPY OF EMAIL DATED 20.6.2019 ISSUED BY THE 1ST PETITIONER TO THE RESPONDENT.** - **EXHIBIT P12** - **TRUE COPY OF EMAIL DATED 24.6.2019 ISSUED BY THE 1ST PETITIONER TO THE RESPONDENT.** - **EXHIBIT P13** - **TRUE COPY OF THE RTI REQUESTED DATED 26.07.2019. (PRODUCED IN REPLY AFFIDAVIT DATED 05.09.2019)** - **EXHIBIT P14 TRUE COPY OF THE REPLY TO THE RTI REQUESTED DATED 19.08.2019.(PRODUCED IN REPLY AFFIDAVIT DATED 05.09.2019)** - **EXHIBIT P15 TRUE COPY OF THE ROC RECORD SHOWING THE CHANGE OF NAME OF THE COMPANY. (PRODUCED IN REPLY AFFIDAVIT DATED 05.09.2019)** - **EXHIBIT P16 TRUE COPY OF THE INTERIM ORDER DATED 23.9.2019 PASSED BY THIS HONOURABLE COURT IN WPC NO 22043/2019** - **EXHIBIT P17** - **TRUE COPY OF THE LETTER DATED 27.9.2019 ISSUED BY THE RESPONDENT ALONG WITH ENCLOSURES.** ## **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R1 A A COPY OF THE PRESIDENTIAL NOTIFICATION DATED 18/7/1972** - **EXHIBIT R1 B A COPY OF THE OFFICE ORDER NO.VSSC:DIR:2019 DATED 27/4/2019** - **EXHIBIT R1 C** - **A COPY OF ATTENDANCE SHEET SIGNED BY THE BIDDERS ON THE TENDER OPENING DATE** 14 W.P.(C) No.22043 of 2019 **EXHIBIT R1 D A COPY OF THE DOCUMENT-A OF THE TENDER DOCUMENT** **EXHIBIT R1 E A COPY OF THE DOCUMENT-B OF THE TENDER DOCUMENT** - **EXHIBIT R1 F A COPY OF THE E-MAIL DATED 17/6/2019 RECEIVED FROM THE 1ST PETITIONER** - **ANNEXURE R1 (A) THE TRUE COPY OF THE ADVT NO.VSSC/P/ADVT/277/2018 ISSUED BY THE RESPONDENT DATED 29.03.2019.** - **ANNEXURE R1 (B) THE TRUE COPY OF THE DOCUMENT PRODUCED BY THE PETITIONER IN RESPONSE TO THE CLARIFICATION SOUGHT** - **RESPONDENT'S/S EXHIBITS:** ## **NIL** ## **//TRUE COPY//** **PA TO JUDGE**