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2017 (10) TMI 917 - HC - Companies LawBid determination - formulation of tender conditions - whether the BSNL’s decision that the petitioner did not possess the necessary eligibility is arbitrary? - Held that:- This court is of opinion that there is no infirmity with the BSNL’s approach and stand. Besides, clause 4.1.1 which emphasizes that bidders must be companies, special information to Bidders, Clause 1.3 (which says ““Bidder” shall mean Bidding Company submitting the Bid. Any reference to the Bidder includes Bidding Company.”) and Clause 1.4 (which says “Bidding Company” shall mean the single registered corporate entity that has submitted a Bid in response to this document.”), have to all be read as a part of the eligibility criteria. In the present case, it is not one, but several conditions, that emphasize and reiterate that the bidder company should possess the essential experience and fulfill the turnover criteria, in its own right. The only exception carved out, is with respect to subsidiaries. That ipso facto sheds light on BSNL’s clear intent that the bidder and the bidder alone- save if it were a subsidiary- had to fulfill the turnover and essential experience criteria. The other conditions (reproduced earlier) substantiate this intention. Therefore, this court holds that the rejection of the petitioner’s tender conditions cannot be interfered with; it holds that BSNL’s position is neither arbitrary nor a misinterpretation of the tender terms. The court is also of the opinion that the materials brought on record, nowhere indicate that the sole proprietorship’s business was entirely subsumed or taken over by the petitioner company. There is no document establishing that goodwill was parted; nor was a separate consideration paid. Furthermore, the sole proprietorship continued to function for a while, even after incorporation of the petitioner company. The latter did not reflect any provident fund contributions and appears to have registered early in 2016 and shown its first contributions thereafter. On the other hand, Pratap Technocrats, the sole proprietorship, with its different registration number, continued to make contributions even in June and July 2016. These facts show that the assertion by the petitioner that the sole proprietorship’s business ceased after its incorporation, is not free from doubt; in any case, it cannot be termed as an established fact. Courts, in exercise of judicial review jurisdiction are in a sense second guessing decisions made by the executive, which is tasked by the Constitution to make those decisions, in the first instance. The lens that courts necessarily adopt is narrow rather than wide; they are to permit greater latitude to the public agencies. The determinations of such agencies are not like quasi judicial decisions but with economic and expectedly commercial objectives. Unless a constitutional value is shown to have been undermined, or a law violated, or fair procedure avoided, the outcome of processes adopted by the state agency, or its decisions should not be interdicted.
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