TMI Blog2016 (7) TMI 1626X X X X Extracts X X X X X X X X Extracts X X X X ..... in hand, the respondent has neither pleaded nor established mala fide exercise of power by the appellant. While so, the decision of tender committee ought not to have been interfered with by the High Court. In our considered view, the High Court erred in sitting in appeal over the decision of the appellant to cancel the tender and float a fresh tender. Equally, the High Court was not right in going into the financial implication of a fresh tender. When the SLP came up for hearing, by an order dated 10.08.2015, while granting interim stay on the operation of the impugned judgment, this Court directed that the appellants shall be free to invite fresh tenders and process the same, but no allotment shall be made without permission of this Court - The learned Attorney General submitted that the entire sub-mergence area of the proposed Icha Dam is in the scheduled area and the remaining land for Icha Dam can be acquired only with the prior consent of the Gram Sabha of the affected villages. It is further stated that the issue was discussed in the meeting of Tribal Advisory Council held on 27.09.2014 and that Tribal Advisory Council and the sub-committee opined that the construction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was found responsive and other two bidders were found unresponsive. Therefore the tender committee took a decision under clause 4.18(d) of the Central Vigilance Commission Guidelines ( CVC Guidelines ) to cancel the tender and go for retender to make the tender process more competitive. The tender committee re-affirmed this decision in a meeting held on 09.07.2014 after the Chief Minister referred an application of the respondent to them. Aggrieved thereof, respondent filed a writ petition before the High Court. 4. The learned Single Judge after examining clauses 4.17 and 4.18 of the CVC Guidelines which provide for procedure in case of a single quote/single valid acceptable quote and in case of lack of competition due to restrictive specifications respectively, came to the conclusion that in the absence of the decision of the tender committee that the specifications were stringent, clause 4.18 could not have been resorted to and tender committee should have resorted to clause 4.17. The Single Judge allowed the writ petition, holding the action of the appellants as arbitrary and against public interest. The matter was then carried in appeal filed by the appellants before the Div ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith Senior Counsel, Mr. Dushyant Dave submitted that cancellation of respondent s tender was arbitrary and against public interest. By referring to clause 4.17 of the CVC Guidelines, learned Senior Counsel submitted that in a case where a single quote or a single valid acceptable quote is received against limited tender or where a tender has resulted in a single vendor situation, it needs to be processed further. It was submitted that the learned Single Judge and the Division Bench rightly held that clause 4.17 of CVC Guidelines ought to have been resorted to and not clause 4.18(d) of CVC Guidelines. Drawing our attention to the financial implications of the project, learned Senior Counsel submitted that by issuance of a fresh tender, the value of the project will go up by about ₹ 100 crores and the same will be detrimental to the public interest causing huge loss to the public exchequer. 7. We have carefully considered the rival contentions, perused the impugned judgment and the material on record including the additional documents filed by the appellant-State. 8. Every tender above the estimated value of ₹ 250/- lakhs has to be in consonance with Standard Biddin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he tender under subject more competitive, the departmental tender committee after due consideration while cancelling the tender has decided to re-invite tenders in light of SBD norms on the basis of which tenders are invited by the department. Chief Engineer, Icha-Galudeeh Complex, Adityapur, Jamshedpur shall, accordingly, ensure action inviting tenders according to the prescribed SBD norms without any delay. It was later realised that the typographical error had been made in the above minutes and therefore technically-cum-pre-qualification bid was later modified to pre-qualification bid in the meeting held on 06.06.2014. 11. Against the decision of tender committee cancelling the tender, SOMA Consortium filed a complaint before the Chief Minister of Jharkhand and in furtherance of order of the Chief Minister, the Departmental Tender Committee held meeting on 09.07.2014. In the said meeting, tender committee decided that the decision taken by the committee in its meetings dated 02.06.2014 and 06.06.2014 was correct and the same was affirmed in the light of clause 4.18(d) of CVC Guidelines, clause 32 of ITB, clause 24 of IFB and the letter of CVC dated 07.05.2004. Tend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 of the Constitution of India. In the case in hand, in view of lack of real competition, the state found it advisable not to proceed with the tender with only one responsive bid available before it. When there was only one tenderer, in order to make the tender more competitive, the tender committee decided to cancel the tender and invited a fresh tender and the decision of the appellant did not suffer from any arbitrariness or unreasonableness. 15. The appellant claims that the decision of re-tendering was in the light of the restrictive nature of the conditions introduced in the NIT in departure from the SBD and was in consonance with clause 4.18(d) of CVC Guidelines. Clause 4.18 of CVC Guidelines reads as under:- 4.18. Re-tendering- Retendering may be considered by the TPC/CFA with utmost caution, under the following circumstances: (a) Offer do not confirm to essential specification (b)Wherever there are major changes in specification and quantity, which may have considerable impact on the price. (c) Prices quoted are unreasonably high with reference to assessed price or there is evidence of a sudden slump in prices. (d)There may be cases when the lack of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd stringent resulting in request to the Chief Engineer for issuing corrigendum as the above clauses added an additional qualification of showing of quantity of work done in one project. The Division Bench thereafter examined clauses 4.17 and 4.18 of CVC Guidelines and came to the conclusion as under:- ...there was certainly a competition within three companies including SOMA in which SOMA turned out to be a single vendor and therefore it cannot be said to be a case for retendering on account of lack of competition due to restrictive specification. Lack of competition has to be construed in that manner only. In this eventuality, it is only clause 4.17 of CVC guidelines which ought to have been invoked and not clause 4.18 of CVC guidelines as rightly held by learned Single Judge. 18. Admittedly, in the pre-bid meeting held on 24.03.2014, ten tenderers have participated. After conclusion of the pre-bid meeting on 24.03.2014, as a result of stringent conditions prescribed in clause 4.5(A)(a) and 4.5(A)(c), only three tenderers could participate in the bidding process and submit their bids. As noticed earlier, upon scrutiny two were found non-responsive. In our considered view, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be struck down. 20. The government must have freedom of contract. In Master Marine Services (P) Ltd. v. Metcalfe Hodgkinson (P) Ltd. and Anr. (2005) 6 SCC 138, in para (12) this Court held as under:- 12. After an exhaustive consideration of a large number of decisions and standard books on administrative law, the Court enunciated the principle that the modern trend points to judicial restraint in administrative action. The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible. The Government must have freedom of contract. In other words, fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principles of reasonableness but also must be free from arbitrariness not affected by bias or actuated by mala fides. It was al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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