TMI Blog2022 (3) TMI 1589X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments. The satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of expectations from the tenderers while evaluating the consequences of non-performance. In the tender in question, there were 15 bidders. Bids of 13 tenderers were found to be unresponsive i.e., not satisfying the tender conditions. The writ Petitioner was one of them. It is not the case of the writ Petitioner that action of the Technical Evaluation Committee was actuated by extraneous considerations or was malafide. Therefore, on the same set of facts, different conclusions can be arrived at in a bona-fide manner by the Technical Evaluation Committee. Since the view of the Technical Evaluation Committee was not to the liking of the writ Petitioner, such decision does not warrant for interference in a grant of contract to a successful bidder. The Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present-day economic activities of the State and this limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Bank Guarantee. Such Bank Guarantee was not in the format as prescribed in the SBD. It was also found that the Bank Guarantee was valid from 8.7.2019 to 7.3.2020, which was prior to the date on which NIT was issued on 20.8.2019, apart from the fact that the amount mentioned in numerical and in words were different. Still further, the bid capacity of Respondent No. 1 amounting to Rs. 60.66 crores was less than the estimated cost of work of Rs. 1,05,71,13,019/-. Additionally, the affidavit and undertaking supporting the bid were not properly notarized. 5. The technical bid of the Appellant was declared to be substantially responsive and after due evaluation of its financial bid, work contract was issued to the Appellant on 3.10.2019. The Appellant started the work on the stipulated date of commencement on 22.10.2019 and completed earth work for 21.9 kms out of the 24 kms proposed road. As per the Appellant, it had completed work of approximately Rs. 8.5 crores and had mobilized the plants and machinery to Garwa. 6. Respondent No. 1 filed a Writ Petition on 11.10.2019 for quashing of the decision of the Technical Evaluation Committee holding its bid to be non-responsive. 7. The S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecifications professed by the employer. While the Appellant in the final paragraph of the bid security document made the bank guarantee extendable at the bank's sole discretion contrary to the requirement of the format and the bid document whereunder the employer had the right reserved to get the bank guarantee extended and notice for such extensions to the bank waived, the writ Petitioner had also deviated on this count by introducing a notwithstanding Clause which was not part of the format... 23. The principles of law as enunciated by the Apex Court and profusely relied upon by this Court in the judgment dated 7th October, 2021 therefore do squarely apply to the facts of the present case as well. If the opinion of the learned Single Judge on those counts do not suffer from any perversity, there is no reason for the appellate court to take a different view of the matter and substitute its opinion. xx xx xx 25. Having analyzed the reasonings rendered by the learned Single Judge in the conspicuous facts of the case, we are of the view that the decision of the tender evaluation committee in accepting the technical bid of the successful tenderer M/s. N.G. Projects Limited while r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: (i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) Irrationality, namely, Wednesbury unreasonableness. (iii) Procedural impropriety. The above are only the broad grounds but it does not Rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, consider whether something has gone wrong of a nature and degree which requires its intervention . xx xx xx 94. The principles deducible from the above are: (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 the manner in which the decision was made. (3) The court does not have the expertise to corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icter than the prescribed format is neither here nor there. It is not for the employer or this Court to scrutinise every bank guarantee to determine whether it is stricter than the prescribed format or less rigorous. The fact is that a format was prescribed and there was no reason not to adhere to it. The goalposts cannot be rearranged or asked to be rearranged during the bidding process to affect the right of some or deny a privilege to some. xx xx xx 47. The result of this discussion is that the issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. As held in Ramana Dayaram Shetty [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489] the terms of NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular [Tata Cellular v. Union of India, (1994) 6 SCC 651] there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the understanding or appreciation or in the application of the terms of the tender conditions. 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. 13. This Court sounded a word of caution in another judgment reported as Silppi Constructions Contractors v. Union of India and Ors., wherein it was held that the Courts must realize their limitations and the havoc which needless interference in commercial matters could cause. In contracts involving technical issues, the Courts should be even more reluctant because most of us in judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down 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 would cause unnecessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich 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 then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind, we shall deal with the present case. (Emphasis supplied) 14. In National High Speed Rail Corpn. Ltd. v. Montecarlo Ltd., this Court sounded a word of caution while entertaining the writ petition and/or granting stay which ultimately may delay the execution of the Mega projects. It was held as under: 95. Even while entertaining the writ petition and/or granting the stay which ultimately may delay the execution of the Mega projects, it must be remembered that it may seriously impede the execution of the projects of public importance and disables the State and/or its agencies/instrumentalities from discharging the constitutional and legal obligation towards the citizens. Therefore, the High Courts should be extremely careful and circumspect in exercise of its discretion while entertaining such petitions and/or while granting sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... civil court and thus, attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted . [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517] XX XX XX 42. We must begin by noticing that we are examining the case, as already stated above, on the parameters discussed at the inception. In commercial tender matters there is obviously an aspect of commercial competitiveness. For every succeeding party who gets a tender there may be a couple or more parties who are not awarded the tender as there can be only one L-1. The question is should the judicial process be resorted to for downplaying the freedom which a tendering party has, merely because it is a State or a public authority, making the said process even more cumbersome. We have already noted that element of transparency is always required in such tenders because of the nature of economic activity carried on by the State, but the contours under which they are to be examined are restricted as set out in Tata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly clear that if the format for a bank guarantee is an essential condition of the Contract, the format in which the Respondent has opted to submit it is a substantial variation in the terms of the contract. If the variation that is done by Respondent No. 1 is considered to be an acceptable variation, then it would create an onerous burden on the tendering authority to ensure that each underlying bank guarantee is valid and further to consider whether the amendment letter itself was with the full knowledge and consent of the bank. As it were, on the facts of the case, the State informed the High Court that it had attempted to verify the amendment but there was no response from the Bank. This being the case, it is submitted that the relaxation in the format to bank guarantee was rightly not provided to the Respondent. 19. The Specific Relief Act, 1963 was amended by Central Act 18 of 2018 when Clause (ha) was inserted in Section 41 of the said Act to say: (ha) if it would impede or delay the progress or completion of any infrastructure project or interfere with the continued provision of relevant facility related thereto or services being the subject matter of such project. 20. Such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to hold its hand to stay the construction of the infrastructure project. Such provision should be kept in view even by the Writ Court while exercising its jurisdiction Under Article 226 of the Constitution of India. 22. The satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of expectations from the tenderers while evaluating the consequences of non-performance. In the tender in question, there were 15 bidders. Bids of 13 tenderers were found to be unresponsive i.e., not satisfying the tender conditions. The writ Petitioner was one of them. It is not the case of the writ Petitioner that action of the Technical Evaluation Committee was actuated by extraneous considerations or was malafide. Therefore, on the same set of facts, different conclusions can be arrived at in a bona-fide manner by the Technical Evaluation Committee. Since the view of the Technical Evaluation Committee was not to the liking of the writ Petitioner, such decision does not warrant for interference in a grant of contract to a successful bidder. 23. In view of the above judgments of this Court, the Writ Court should refrain itself ..... X X X X Extracts X X X X X X X X Extracts X X X X
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