Writ of mandamus and quo warranto
shubhra
(Querist) 12 July 2013
This query is : Resolved
NCERT developed 10 kits for science and maths for schools as per the curriculum of Indian schools.
Since they were not in a capacity to mass produce the kits to be supplied to schools all over India. They floated Expression of interest for emplacement of firms to produce and supply the kits to NCERT under their logo and NCERT will sell them keeping 10% margin over the cost of the kits to schools/ institutions and state governments under the SSA and RMSA grants.
This was a Parallel Rate Contract. All bidders were required to put financial and technical bids alongwith samples. First technical bids will be opened and samples will be checked. The bidders whose technical bids are okay and samples are approved, the financial bids of these were opened. Then all bidders were offered to accept L-1 Rates of those approved kits. Hence now only those bidders were selected whose all terms conditions, rates and quality of samples were at par.
The NCERT kept a clause 7.4 "Orders will be received by the NCERT along with 100% advance payment through Demand Draft /Banker’s Cheque from the buyer and NCERT will forward the
requisition to one / more than one / all empanelled firms as per the decision of a
Committee constituted by the NCERT. However, in case any firm facilitates in
getting orders to NCERT, then that order will be placed with that firm. No advance
payment will be released by the NCERT to the firm under any circumstances."
Empanelled firms opposed that fascination of order to one of all empanlled suppliers will lead to unhealthy competition.
Although NCERT did not accept our
suggestion but later on on 22 Feb 2013 in a letter to a buyer they said :council has taken a view that to stop all unhealthy competition amongst empanelled suppliers we will distribute all orders equally amonst all empanelled vendors.
Now the issue is the empanlement was done on feb 1 2013. Till 21st june although NCERT received 200 orders valuing above 8 crores. Ncert did not plance a single order with any of the empanelled firms.
For this we approached MHRR MHRD took steps but we do not know after the meeting the NCERT withdrew there offer for first order of about rs. 20 lakh to each empannned firm state a letter of MHRD.
The letter of 21th June said as under:—
Procurement of Science & Mathematics Kits by State Governments
The Division of Educational Kits, NCERT has developed technically sound criteria for the manufacture of the
Science and Mathematics Kits and accordingly 25 firms were empanelled in the month of February, 2013 for a
period of one year for manufacturing and supplying kits developed by NCERT.
In view of a letter from MHRD, Govt. of India on 14.06.2013 to review the practice of State Government placing
orders with NCERT for Science and Mathematics Kits, NCERT has reviewed the policy and taken the following
decisions:-
1. The State Government will be allowed to place orders directly with the firms empanelled by NCERT and
a copy of the said order will also be sent to NCERT along with 5% of the total cost of order as the
License Fee.
2. The States may empanel firms on their own too and place orders based on the technical specifications
provided by NCERT. In this case too, 5% of the total cost of order will be sent to NCERT as the License
Fee.
3. The State Government will ensure thorough quality check so that Science and Mathematics Kits are
made as per the technical specifications of the NCERT.
4. The list of firms empanelled with NCERT, approved rate list of the Kits and technical specifications of
each kit will be uploaded on NCERT website and communicated to all State Governments.
By this letter they also in process of refunding the amount about 7 crores received from a state government back althout we had submitted bank gurantees for the same.
Now we want to put a petition for writ of quo warranto and mandamus.
PLease adivse our locus standi. The tender also has an arbitration clause:—7.17 If at any time, there shall arise any dispute, difference or question with regard to the
interpretation or meaning of any terms and condition, prices, etc., of this Bid or in
respect of rights, duties and liabilities of the parties hereto or in any way touching or
arising out of these presents or otherwise in relation to the present Bid , then every
such dispute, difference, doubt or question (except the decision whereof is herein
expressly provided for) shall be referred to the Arbitrator appointed by Director,
NCERT under Indian Arbitration & Conciliation Act, 1996 or any statutory
modification re-enactments thereof and rules made thereunder for the time being in
force shall apply to such arbitration. The venue of arbitration shall be the place from
where the contract is finalized.
The terms and conditions are as below:—
7. TERMS AND CONDITIONS FOR BIDDERS
7.1 Firms will be short-listed solely at the discretion and satisfaction of NCERT.
Empanelment of firm will be for one year and extendable upto two years at the sole
discretion of NCERT based on satisfactory performance.
7.2 NCERT (Council) will reserve the right to decide Parallel Rate Contract (PRC) for
the empanelment of firms for the supply of science and mathematics kits. In this
process, NCERT will decide the lowest price bidder from the price bids submitted by
the bidders (who have qualified the technical bid) and then send offers to other
bidders (who are not lowest) to accept the prices of lowest bidder.
7.3 The price quoted by the bidders should include the cost of kit items along with the
packing charges. The total price quoted should be both in figures and words. In case
of any discrepancy, the price quoted lowest either in figure or words will be taken as
final.
7.4 Orders will be received by the NCERT along with 100% advance payment through
Demand Draft /Banker’s Cheque from the buyer and NCERT will forward the
requisition to one / more than one / all empanelled firms as per the decision of a
Committee constituted by the NCERT. However, in case any firm facilitates in
getting orders to NCERT, then that order will be placed with that firm. No advance
payment will be released by the NCERT to the firm under any circumstances.
7.5 The empanelled firm has to provide complete set of science and mathematics kit as
per technical specification provided by NCERT. The firm has to submit Performance
Security @ five per cent of each order value (placed by NCERT) in the form of
Demand Draft/Banker’s Cheque. The demand draft / banker’s cheque should be made
in the name of ‘The Secretary, NCERT, New Delhi 110016’ payable at New Delhi.
7.6 The kit items will be inspected by a team consisting of NCERT experts and
representatives of buyer at the premises of the firm. Based on the inspection, the
buyer will issue the “Certificate of satisfactory inspection” to the firm. NCERT
reserves the right to reject the Kit/Kit items, if found unsuitable and not conforming to
the specifications. The rejected items, if any, shall have to be taken back and replaced
by good quality items at the firm’s cost and no payment will be made for rejected
items/replaced items.
7
7.7 The NCERT’s logo and slip containing information like name of science kits, serial
number (to be specified by the NCERT), name and date of manufacturing, will be put
by the firm on the boxes which have been passed by the inspection team.
7.8 A list of items contained in the box will be printed by the firm and kept in each kit
box.
7.9 Transportation charges, octroi and other charges loading and unloading, will be borne
by empanelled firms and will be paid by the buyer.
7.10 Issues related to the “Insurances” will be the sole responsibility of the firm
7.11 The firm will supply kits to buyer within 90 days after receipt of order from NCERT,
failing which a penalty of 0.1% per day of order value subject to maximum of 10% of
order value would be imposed by NCERT. For delay in delivery, due to reasons
beyond the control of supplier, NCERT may consider waving of liquidity damage
(LD) with concurrence of Secretary, NCERT, however in such a cases adequate
reason must be recorded to justify such a waiver of liquidity damages (LD).
7.12 If any complaint is received from the buyer in respect of quality, penalty of maximum
of order value would be imposed by NCERT.
7.13 The firms will submit claims for payments to the NCERT. The claim should include
the “Certificate of Proof of Satisfactory Inspection and Proof of Delivery” issued by
the buyer. The claim will be examined by the NCERT and the payment will be
released in the form of A/c Payee Cheque / DD/ Banker’s Cheque.
7.14 Warrantee/Guarantee of the sold items/kits should be for the period of three months
from the date of supply.
7.15 The Council reserves the right to terminate the panel/ empanelment of any of the
empanelled firm at any time before expiry of the empanelment period without
assigning any reason.
7.16 The Council reserves the right to seek performance report from clients/users who
purchase science and mathematics kits from empanelled firms. In case performance
report is not satisfactory, empanelment will be cancelled and action will be taken as
per clause 7.17.
7.17 If at any time, there shall arise any dispute, difference or question with regard to the
interpretation or meaning of any terms and condition, prices, etc., of this Bid or in
respect of rights, duties and liabilities of the parties hereto or in any way touching or
arising out of these presents or otherwise in relation to the present Bid , then every
such dispute, difference, doubt or question (except the decision whereof is herein
expressly provided for) shall be referred to the Arbitrator appointed by Director,
NCERT under Indian Arbitration & Conciliation Act, 1996 or any statutory
modification re-enactments thereof and rules made thereunder for the time being in
force shall apply to such arbitration. The venue of arbitration shall be the place from
where the contract is finalized.
7.18 The purchaser requires the bidder to follow the laws against any fraud and corruption
in force in India, namely Prevention of Corruption Act 1988 amended from time and
till date.
Citing the letter dated 14.06.2013 of MHRD on 21.6.2013 reviewed the policy and changed the terms of the contract unilaterlly. Advise us the best way to go forward with the writ.
ajay sethi
(Expert) 12 July 2013
commercial query . you can afford legal fees
shubhra
(Querist) 12 July 2013
first we should know whether we have any writ remidy or not ?
Anirudh
(Expert) 12 July 2013
Even that is a commercial query. As you can afford legal fees, better take paid advice / service from a lawyer.
prabhakar singh
(Expert) 12 July 2013
If you want to know simply writ would lie or not then my answer is in negative.
R.K Nanda
(Expert) 12 July 2013
query too long to reply.
