TMI Blog1996 (12) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner in OJC and respondent no. 1 herein, giving them opportunity to make fresh offers and then lowest bidder should be given the Award. The High Court also further directed that if there cannot be any negotation within one month from the date of the judgment then the Port Trust will be free to ask for rebidding for the particular project which is the subject matter of the Writ Petition. It is not necessary to narrate the entire gamut of facts Suffice it to state that for construction of Wharf intended for creation of mechanised handling facility of coal at Paradip Port the Asian Development Bank at Manila had agreed to give loan to the extent of 134.85 million US dollars and it was intended that a part of this amount would be utilised for the construction of the Wharf. The entire project consist of nine major packages and none completion of any package would make the entire project unworkable. A pre- qualification notice was issued inviting the offers and then on receipt of the pre-qualification documents those were sent to a Committee for evaluation. The consultants submitted their evaluation recommending six firms including the appellant and respondent no. 1 for the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bank. The Bank indicated that the suggestions given by the Bank is on due consideration of the practicability of mobilizing finance quickly. On receipt of the said response from the Bank the Tender Committee met on 14.6.96 and then decided to call the appellant to have some clarifications. In the meeting dated 17.6.96 the appellant appeared before the Tender Committee and responded to the clarification sought for. The Project Manager addressed a letter on 12th July, 1996, stating therein that if the additional commercial information has been available at the time of assessment then the outcome would appear to favour award to AFCONS. it also further stated that completing the bid evaluation and making its recommendation of award to Essar the consultant has done so in a professional and impartial manner based upon the information available at that time. It was further stated that in view of the additional information now available there was no technical barrier or commercial disincentive to award to AFCONS, the appellant herein. But even before the award was made in favour of the appellant the respondent no. 1 had approached the High Court, obviously being aware of the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... velopment Bank authorities did not appreciate the evaluation of the bids and on correction the offer of the petitioners being lower than that of AFCON. The special fancy of the Asian Development Bank authorities in favour of AFCON has not been justified with reasons before this Court for reasons best known to the Asian Development Bank authorities. According to the High Court the power of judicial review in the arena of contractual jurisdiction has been widened as has been held by the Supreme Court in Mahabir Auto Stores Ors. vs. Indian Oil Corporation Ors. (1990) 1 SCR 818, as well as in Food Corporation of India vs. M/s. Kamdhenu Cattle Feed Industries (1993) 1 SCR 71, but each case has its own peculiar facts and circumstance and ultimate decision has to be arrived at as the situation demands under the parameters of law as it permits. Having considered the facts and circumstances leading to the award of contract in favour of the appellant the court came to the conclusion that it would be in the public interest to quash the award in favour of the appellant and accordingly it quashed the same and issued directions, as already stated. Mr. Parasaran, learned senior counsel ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not appear nor had given any explanation for preferring the appellant that respondent no. 1 even though respondent no. 1 was the lowest bidder. Consequently such decision on the face of it must be held to be arbitrary and the High Court was fully justified in interfering with the decision of awarding the contract in favour of the appellant. Mr. Sorabjee, learned senior counsel also urged that if this court is of the view that a re-bidding would take an undudly long period which may eventually result in escalation of the cost then this Court may issue appropriate direction as it thinks fit. Mr. Sorabjee, learned senior counsel also in course of arguments produced before us a telex message from the Asian Development Bank whereunder the Bank has agreed to the direction of the High Court for re-bidding but indicates that re-bidding has to be carried out following the procedure acceptable to the Bank which will included a bidding period of atleast 60 days and, therefore, there cannot be any objection to the direction of the High Court for re-bidding. Mr. Upadhyay, learned counsel appearing for Paradip Port Trust on the other hand submitted that the ultimate decision of the Trust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbitrary or capricious or illegal requiring court's interference in the matter of an award of contract. There was some dispute between the Bank on one hand and the consultant who was called upon to evaluate on the other on the question whether there is any power of making any correction to the bid documents after a specified period. The High Court in construing certain clauses of the bid documents has come to the conclusion that such a correction was permissible and, therefore, the Bank could not have insisted upon granting the contract in favour of the appellant. We are of the considered opinion that it was not within the permissible limits of interference for a court of law, particularly when there has been no allegation of malice or ulterior motive and particularly when the court has not found any mala fides or favouratism in the grant of contract in favour of the appellant. In Tata Cellular vs. Union of India (1994) 6 SCC 651 this Court has held that : 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. 2. Committed an error of law. 3. Committed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion :- the technical capability of any of the three bidders to undertake the works is not in question. two of he bids are very similar in price. If additional commercial information which has now been provided by bidders through Paradip Port Trust, had been available at the time of assessment, the outcome appear to the favour award to AFCONS. This being the position, in our considered opinion, High Court was not justified in interfering with the award by going into different clauses of the bid document and then coming to the conclusion that the terms provided for modification or corrections even after a specified date and further coming to the conclusion that respondent no.1 being the lowest bidder there was no reason for the Port Trust to award the contract in favour of the appellant. We cannot lose sight of the fact of escalation of cost in such project on account of delay and the time involved and further in a coordinated project like this, if one component is not worked out the entire project gets delayed and the enormous cost on that score if re-bidding is done. The High Court has totally lost sight of this fact which directing the rebidding. In our considered o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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