TMI Blog2019 (6) TMI 1715X X X X Extracts X X X X X X X X Extracts X X X X ..... lies in the eligibility criteria for other contractors referred to above wherein it has been clearly mentioned that they should meet the enlistment criteria of Class 'SS' MES Contractors. Even otherwise it would be a travesty of justice if enlisted contractors should only be limited companies and unlisted unknown contractors, could be a firm, individual etc. This is not the purpose of the criteria. There are no merit in the petitions which stand dismissed. - Hon'ble Judges Deepak Gupta and Surya Kant JJ. For the Appellant : P.N. Ravindran, Sr. Adv., Suman Yadav, Rajiv A. George and B. Vijayalakshmi Menon, Advs. For the Respondents : Vikramjit Banerjee, ASG, R. Balasubramanian, Meenakshi Arora, Sr. Advs., Rajan K. Chourasia, Akshay Amritanshu, Vaibhav Chadha, A.K. Sharma, Yugandhara Pawar Jha, Pragyan Pradip Sharma, Atul Jha, Chandan Goswami, Rashmi Singh, Deepu Thankan, Joseph Kodyantra and Raji Joseph, Advs. ORDER 1. Keeping in view the urgency of the matter, after detailed hearing the Special Leave Petitions were dismissed and we had directed that a reasoned order would follow. Hence the present order. 2. Respondent Nos. 1 and 2 issued not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not shown that the said decision was mala fide; thirdly, since the sister company had not challenged the adverse remark the learned single judge could not have set aside the same in the writ petition filed by the Petitioner-firm; and lastly, the direction of the learned single judge to direct the tendering authorities to consider the financial bid of the Petitioner virtually meant that the technical bid of the Petitioner was accepted. 6. Aggrieved, the original writ Petitioner is before us in these petitions. This Court in a catena of judgments has laid down the principles with regard to judicial review in contractual matters. It is settled law that the writ courts should not easily interfere in commercial activities just because public sector undertakings or government agencies are involved. 7. In Tata Cellular v. Union of India (1994) 6 SCC 651, it was held that judicial review of government contracts was permissible in order to prevent arbitrariness or favouritism. The principles enunciated in this case are: 94........ (1) The modern trend points to judicial restraint in administrative action. (2) The Court does not sit as a court of appeal but merely reviews th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view in respect of contracts, the Court should concern itself primarily with the question, whether there has been any infirmity in the decision-making process. By way of judicial review, Court cannot examine details of terms of contract which have been entered into by public bodies or State. 12. In B.S.N. Joshi Sons Ltd. v. Nair Coal Services Ltd. (2006) 11 SCC 548 it was held that it is not always necessary that a contract be awarded to the lowest tenderer and it must be kept in mind that the employer is the best judge therefor; the same ordinarily being within its domain. Therefore, the court's interference in such matters should be minimal. The High Court's jurisdiction in such matters being limited, the Court should normally exercise judicial restraint unless illegality or arbitrariness on the part of the employer is apparent on the face of the record. 13. In Jagdish Mandal v. State of Orissa (2007) 14 SCC 517 it was held: 22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made lawfully and not to check whether choice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson to understand and appreciate its requirements and interpret its documents. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given. 16. In Montecarlo v. NTPC Ltd. AIR 2016 SC 4946 it was held that where a decision is taken that is manifestly in consonance with the language of the tender document or sub-serves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints. 17. In Municipal Corporation, Ujjain and Anr. v. BVG India Ltd. and Ors. (2018) 5 SCC 462 it was held that the authority concerned is in the best posit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give fair play in the joints to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer. 20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision to be made in the notice of tender as such a Contractor or Corporation, wishing to be registered as an approved Contractor, should give particulars of all MES registered Contractors with whom he/it has business relationship, irrespective of the fact whether there is blood/close relationship or not. These would include all sister concerns of the Contractor or Corporation also. (b) In case of Contractors having blood/close relation with each other but not any business relation whatsoever, particulars of such related contractors need not be given under serial No. 7 of the enlistment form. In such cases, it would not be correct to deny issue of tenders to these contractors if they otherwise fulfil all requirement in selection for issue of tenders. However, while deciding a tender in favour of one party, it shall be ensured that fair competition has taken place. (c) A Contractor/Corporation is termed to have business relationship with other Contractor(s)/Corporation(s) when one or more partner(s)/directors (s) are common. 24. It is not disputed before us that all the partners of the Petitioner firm are the directors of the sister company and, therefore, there can be n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s set aside. 29. However, as far as the first objection is concerned, merely because extension of time has been granted, it does not in any manner mean that the Department has come to the conclusion that the contractor is not at fault. Sometimes extension is granted because a lot of money has already been invested and cancellation of contract and appointment of new contractors would lead to unnecessary litigation and increase in costs. We may also point out that though we have held that the Petitioner firm can challenge the correctness of the material used against the sister concern, we cannot lose sight of the fact that in the present case the sister company has not got its enlistment renewed. Some of the adverse remarks were conveyed to the sister company much prior to the issuance of notice inviting tenders in the present case. The sister company not only did not get its enlistment renewed but also did not care to even represent against the adverse remarks. It has been pointed out to us that as per the Manual on Contracts, 2007 if any adverse remarks are conveyed to the enlisted contractor the said contractor has a right to represent against the same. If no representation is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . department, police verification/passport etc. Enlistment criteria may be seen in para 1.4 of section 1 of part I of MES Manual on Conttracts 2007 (Reprint2102) as available in all MES formation. These firms shall also submit copy of police verification from police authority of the area where the registered office of the firm is located/notarized copy of valid passport of proprietor/each partner/each director. (d) They should not carry any adverse remarks in WLR/or any other similar report of any authority. A bare reading of the eligibility criteria would clearly show that as far as MES enlisted contractors are concerned, they should be enlisted in SS Category a(i) and secondly, they should not carry adverse remarks in WLR of competent engineer authority. As far as other contractors are concerned, they are required to meet the same criteria as SS MES contractors category a(i) and these contractors was specifically told that they could see enlistment criteria in the MES Manual Contracts. 32. The Manual also provides criteria for enlisting of contractors. We are only concerned with ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
