W.P.(C)--12868/2019. Case: CONSORTIUM OF SIEMENS LTD. INDIA, SIEMENS SA SPAIN AND SIEMENS AG GERMANY & ORS Vs. DEDICATED FREIGHT CORRIDOR CORPORATION OF INDIA LTD. & ANR.. High Court of Delhi (India)
| Case Number | W.P.(C)--12868/2019 |
| Citation | NA |
| Judgement Date | December 06, 2019 |
| Court | High Court of Delhi (India) |
$~31, 34 & 35 * IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 06.12.2019
+ W.P.(C) 12857/2019
CONSORTIUM OF SIEMENS LTD. INDIA, SIEMENS SA SPAIN AND SIEMENS AG GERMANY & ORS.....Petitioners
Through: Mr. Rajiv Nayar, Senior
Advocate with Mr. Dayan Krishnan, Senior Advocate, Mr. Susmit Pushkar, Advocate, Mr. Gaurav Sharma, Advocate and Ms. Bhavna Mishra, Advocate. versus
DEDICATED FREIGHT CORRIDOR CORPORATION OF INDIA LTD. & ANR. ..... Respondents
Through: Ms. Pinky Anand, ASG with
Mr. Jitender Kumar Singh, Advocate, Mr. Sumit Teterwal, Advocate and Ms. Saurabh Sharma, Advocate for respondent No.1.
Mr. Jagjit Singh, Senior Standing Counsel with Mr. Preet Singh, Advocate and Ms. Rachita Garg, Advocate for respondent No.2.
+ W.P.(C) 12868/2019
CONSORTIUM OF SIEMENS LTD. INDIA, SIEMENS SA SPAIN AND SIEMENS AG GERMANY & ORS.....Petitioners
Through: Mr. Rajiv Nayar, Senior
Advocate with Mr. Dayan Krishnan, Senior Advocate, Mr. Susmit Pushkar, Advocate, Mr.
WPC12857/2019, 12868/2019 & 12869/2019 page 1 of 28
Gaurav Sharma, Advocate and Ms. Bhavna Mishra, Advocate. versus
DEDICATED FREIGHT CORRIDOR CORPORATION OF INDIA LTD. & ANR. ..... Respondents
Through: Ms. Pinky Anand, ASG with
Mr. Jitender Kumar Singh, Advocate, Mr. Sumit Teterwal, Advocate and Ms. Saurabh Sharma, Advocate for respondent No.1.
Mr. Jagjit Singh, Senior Standing Counsel with Mr. Preet Singh, Advocate and Ms. Rachita Garg, Advocate for respondent No.2.
+ W.P.(C) 12869/2019
CONSORTIUM OF SIEMENS LTD. INDIA, SIEMENS SA SPAIN AND SIEMENS AG GERMANY & ORS.....Petitioners
Through: Mr. Rajiv Nayar, Senior
Advocate with Mr. Dayan Krishnan, Senior Advocate, Mr. Susmit Pushkar, Advocate, Mr. Gaurav Sharma, Advocate and Ms. Bhavna Mishra, Advocate. versus
DEDICATED FREIGHT CORRIDOR CORPORATION OF INDIA LTD. & ANR. ..... Respondents
Through: Ms. Pinky Anand, ASG with
Mr. Jitender Kumar Singh, Advocate, Mr. Sumit Teterwal, Advocate and Ms. Saurabh Sharma, Advocate for respondent No.1.
Mr. Jagjit Singh, Senior Standing Counsel with Mr.
WPC12857/2019, 12868/2019 & 12869/2019 page 2 of 28
Preet Singh, Advocate and Ms. Rachita Garg, Advocate for respondent No.2.
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
J U D G M E N T
G.S.SISTANI, J. (ORAL)
C.M. No.52539/2019 (exemption) in W.P.(C) No.12857/2019 C.M. No.52573/2019 (exemption) in W.P.(C) No.12868/2019 C.M. No.52575/2019 (exemption) in W.P.(C) No.12869/2019
Exemptions are allowed, subject to all just exceptions.
Applications stand disposed of.
W.P.(C) No.12857/2019 and C.M. No.52538/2019 W.P.(C) No.12868/2019 and C.M. No.52572/2019 W.P.(C) No.12869/2019 and C.M. No.52574/2019
These three writ petitions under Article 226 of the Constitution
of India pertain to three tenders for procurement of Design, Supply,
Construction, Installation, Testing and Commissioning of 2x25kV AC
Electrification, Signalling & Telecommunication, E&M and
Associated Works on Design-Build Lump Sum Basis. Although the
terms and conditions of these tenders are the same, the tenders were
issued and dealt with separately for the reason that the stretches of
road to which they pertain are different. The essential factual matrix in
these three petitions is essentially the same and the petitions involve
identical issues; hence these petitions are being decided by this
common judgment. For convenience, the facts of W.P.(C)
No.12857/2019 are being referred to for purposes of the present
WPC12857/2019, 12868/2019 & 12869/2019 page 3 of 28
judgment.
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Petitioners are aggrieved by communication dated 26.11.2019
issued by the respondents, by which the technical bid of the petitioners
stand rejected.
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With the consent of the parties, the writ petitions are set-down
for final hearing and disposal at the admission stage itself.
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In the year 2015, respondent No.1 issued an invitation for prequalification dated 22.12.2015 bearing ICB no. HQ/SYS/EC/DB/Dadri-Khurja for procurement of Design, Supply, Construction,
Installation, Testing and Commissioning of 2x25kV AC
Electrification, Signalling & Telecommunication, E&M and
Associated works on Design-Build Lump Sum Basis for Dadri-Khurja
section (approximately 47 Route Km of Double Line) of Eastern
Dedicated Freight Corridor ( ‘ project’ for short). For completeness it
may be noted that the length of the stretch of road in the other two
petitions is 175 km for Sahnewal-Pilkhani and 220 km for KhurjaPilkhani respectively.
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Petitioner No.1 responded to this invitation on 25.05.2016. On
13.06.2017 the petitioner was informed that the consortium was prequalified for the project. The tender process which commenced on
22.12.2015 continued between the period 2016 to 2019 and it is not
necessary to explain in detail the process, except to say that petitioner
No.4 addressed a communication to respondent No.1 on 05.06.2018,
which reads as under:-
WPC12857/2019, 12868/2019 & 12869/2019 page 4 of 28
“ Madrid, June 5th, 2018
Dedicated Freight Corridor Corporation of India. Ltd. (DFCC)
5th Floor, Pragati Maidan,
Metro Station Building Complex
New Dehll- 110001
Ref: Transfer of contracts from Siemens, S.A, to Siemens Mobility, S.L.U
Dear Sir,
We make reference to the Public Tender for the "Design, Supply, Construction, Installation, Testing and Commissioning of 2x25kV AC Electrification, Signalling & Telecommunication, E&M and Associated Works on Design-Build Lump Sum Basis of Dadri- Khurja Section (approximately 47 Route Km of double Line) of Eastern Dedicated Freight Corridor", ICB No.: HQ/SYS/EC/D-B/ Dadri-Khurja, announced on June 14th, 2017.
On June 13th, 2017, the consortium comprised by Siemens AG, Siemens, S.A. and Siemens, LTD, were prequalified.
By means of this letter, we would like to formally inform you that Siemens is into a restructuring process as result of its decision to combine the mobility business with Alstom (subject to necessary approvals). Within the framework of this global transaction, Siemens, S.A., incorporated in Spain, has transferred its mobility business to Siemens Mobility, S.L.U on June 1st, 2018, as it is reflected in the public deed of the contract executed on April 23, 2018. Please find attached as Exhibit 1 the incorporation public deed of Siemens Mobility, S.L.U and its Bylaws, and as Exhibit 2 , the extract of the public deed where it is contained the mobility business transfer.
The transfer of Siemens, S.A. (Spain) mobility business to Siemens Mobility, S.L.U includes all rights and obligations
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regarding the bid process and contracts pertaining to Siemens' mobility business, and therefore the corresponding credentials. The Siemens Mobility, S.L.U. is a wholly owned subsidiary of Siemens AG, one of the consortium members.
Counting on your support of the global transaction we kindly ask you to please consent to the transfer and assignment of the contractual relationships to Siemens Mobility, S.L.U, by signing the acknowledgment below and returning it to us, to the following address.
Siemens Mobility, S.L.U
For the attention Of: David Arenas
Ronda de Europa 5, 28760, Tres Cantos, Madrid Phone:+346.70043578
E-Mail: david.arenasr@.siemens.com
Should you have any questions, please do not hesitate to contact us.
Thank you in advance for your support and for your cooperation.
Sincerely yours, Siemens, S.A.
Name: Enrique Torres Verdasco Attorney”
(Emphasis Supplied)
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Accordingly, by the above communication respondent No.1 was
informed that Siemens, S.A. was in the process of restructuring to
combine the ‘mobility business’ with Alstom. Respondent No.1 was
also informed that Siemens, S.A. incorporated in Spain, had
transferred its mobility business to Siemens Mobility, S.L.U on
WPC12857/2019, 12868/2019 & 12869/2019 page 6 of 28
01.06.2018. It is common ground that the subject tender is related to
the ‘mobility business’ of the petitioners. Respondent No.1 was also
informed that Siemens Mobility, S.L.U is a wholly owned subsidiary
of Siemens A.G., one of the consortium members; and respondent
No.1’s consent was sought for transfer and assignment of the
contractual relationships in relation to the tender to Siemens Mobility
S.L.U. The consent sought was however declined, though with much
delay, by communication dated 26.11.2019, by which the petitioner’s
technical bid was also rejected, which we reproduce below:-
“No.: HQ/S&T/EC/DER-KRJ/Eval./91/Part-IV
Date. 26.11.2019 Consortium of Siemens Ltd. India, Siemens SA Spain and Siemens AG Germany
Birla Aurora, Level 21, Plot no. 1080,
Dr. Annie Besant Road, Worli,
Mumbai 400030
(Kind Attention, Mr. Anupam Arora & Mr. Puneet Mehra)
Sub: Design, Supply, Construction, Installation, Testing and Commissioning of 2x25kV AC Electrification, Signalling & Telecommunication, E&M and Associated Works on Design-Build Lump Sum basis for Dadri-Khura section (approximately 47 Route km of double line) of Eastern Dedicated Freight Corridor (CP 105).
Ref: 1) Your letter No.:MO-TPE-RE/D3526/ARA/CP-105/Clarification-6, dated 16.11.19.
2) This office letter No.:HQ/S&T/EC/DERKRJ/Eval./91/Part-IV, dated 14.11.19.
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In reference to your letter at #1 above, It is reiterated that the rejection of your technical proposal submitted for subject work is due to failure of consortium to meet the minimum qualification criteria required under ITA 25.4 of PQ document.
Based on the documents submitted by the consortium, it is established that the mobility business of SIEMENS AG and SIEMENS SA (the original bidders) has been transferred to wholly owned subsidiary of SIEMENS AG namely Siemens Mobility SLU, Spain and Siemens Mobility GmbH, Germany. These new entities are not part of the bid. As a result of these changes, the qualification of the original bidders is different from the time they were qualified. As per ITA 25.4 of the PQ document, only the qualification of the Applicant shall be considered. In particular the...
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