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Judgment
A.S. Bopanna, J.—The petitioner is seeking quashing of the tender and the amended tender at Annexures-B and C. The order dated 24.05.2013 passed by the first respondent at Annexure-AE in relation to the said tender process is assailed. Further the petitioner is also seeking that letter of intent dated 17.12.2012 and the detailed work award dated 29.12.2012 as also the agreement dated 19.12.2012/18.01.2013 at Annexures-X, AB and AC be quashed. The brief facts are that the second respondent issued the tender bearing enquiry No. BESCOM/GM(Rev)/BC-27/01/2012-13 inviting the service providers to provide web based Total Revenue Management (TRM) services for the sub-divisions and accounting sections of Bangalore rural area zone and Chitradurga zone. Certain of the qualifying requirements therein was amended by the notification dated 25.09.2012. The petitioner and the fourth respondent had submitted their bids. The Tender Scrutiny Committee (TSC for short) through its proceedings held on 22.11.2012 has evaluated the bids of the petitioner and the fourth respondent. The bid of the fourth respondent was considered as techno-commercially responsive, while that of the petitioner was considered as techno-commercially non-responsive. The petitioner claiming to be aggrieved by the same filed an appeal before the first respondent as provided u/s 16 of the Karnataka Transparency in Public Procurements Act, 1999 (''KTPP Act'' for short). In the said appeal, the interim order sought by the petitioner had not been considered. The petitioner was therefore before this Court in W.P. No. 18989/2013. The petition was disposed of on 09.05.2013 with a direction to the Appellate Authority to extend an opportunity of hearing on 17.05.2013 and conclude the proceeding and pass orders on or before 27.05.2013. Pursuant thereto, the Appellate Authority by the order dated 24.05.2013 has dismissed the appeal filed by the petitioner. The petitioner is therefore before this Court seeking for the relief as indicated above. The respondents No. 2 and 3 on the one hand and respondent No. 4 on the other have filed detailed objection disputing the claim put forth by the petitioner and justifying the action of the respondents No. 2 and 3 and also the order passed by the Appellate Authority.
Heard Sri Udaya Holla, learned senior counsel on behalf of Sri Vivek Holla, learned counsel appearing for the petitioner, Sri S. Naganand, learned senior counsel on behalf of Sri Sriranga for respondents No. 2 and 3, Sri D.N. Nanjundareddy, learned senior counsel on behalf of Sri V.S. Naik, learned counsel for respondent No. 4 and Sri H.V. Manjunatha, learned Government Advocate for respondent No. 1 and perused the petition papers.
At the outset, it is to be noticed that though the first prayer in the petition is to quash the tender enquiry and the amended tender, no serious issues have been raised with regard to the same. Even otherwise the petitioner having responded to the tender, cannot subsequently assail the same at this point after taking a chance and failing as he has been disqualified. One other aspect which is also to be noticed is, though a subtle effort was made to contend that the appeal would not be an efficacious remedy before the present Appellate Authority, the said contention also cannot be accepted since after filing the appeal, the petitioners were before this Court in W.P. No. 18989/2013 and the said writ petition was disposed of allowing the Appellate Authority to consider the appeal. Further the Appellate Authority has in the course of the order recorded that the learned counsel for the appellant though had reiterated his reservation on the authority of the present Appellate Authority to hear the appeal, left it to the discretion of the Appellate Authority to hear and dispose of the matter. In such situation, I am of the opinion that the correctness or otherwise of the order passed by the Appellate Authority is what requires consideration.
Before adverting to the fact situation, the legal aspect relating to the nature of consideration that could be resorted to by this Court is to be kept in perspective by noticing the decisions referred to by the learned senior counsel for the parties. The learned senior counsel for the petitioner has relied on the decision in the case of West Bengal State Electricity Board Vs. Patel Engineering Co. Ltd. and Others, wherein it is held that the tender inviting authority and the bidders are bound by the rules which must be complied so as to avoid discrimination, arbitrariness and favouritism. The discretion available to the Government and agencies is also indicated therein and the interference would arise only if there is arbitrariness in the action and on the decision in the case of Meerut Development Authority Vs. Association of Management Studies and Another, wherein the method of disposal of public property and the fair procedure to be adopted is referred. The judicial interference is permissible when there is discrimination and arbitrariness is the view.
The learned senior counsel for the second respondent on the other hand has relied on the decision in the case of Surya Dev Rai Vs. Ram Chander Rai and Others, wherein it is held that certiorari jurisdiction though available is not to be exercised as a matter of course and the High Court would be justified in refusing the writ of certiorari if no failure of justice had been occasioned. The examination by the Court is only to determine whether on the face of the record the inferior Court has committed any error occasioning failure of justice; in the case of Delhi Development Authority and Another Vs. UEE Electricals Engg. (P) Ltd. and Another, wherein the scope for judicial review of administrative action being limited only when there is illegality, irrationality and procedural impropriety is highlighted. It is further held that the Courts should be slow to interfere in matters relating to administrative functions unless the decision is tainted by any vulnerability, such as lack of fairness in procedure, illegality and irrationality. Mere assertion in that regard would not be sufficient, but it has to be established. Reliance is also placed on the decision in the case of Michigan Rubber (India) Ltd. Vs. The State of Karnataka and Others, wherein it is held that a Court before interfering in tender or contractual matters in exercise of power of judicial review should pose to itself the following questions:
i) Whether the process adopted or decision made by the authority is malafide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the Court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached"? and
ii) Whether the public interest is affected?
If the answers to the said questions are in the negative, then there should be no interference is the view taken.
In the light of the stated legal position, all that is necessary to be noticed presently is as to whether the Appellate Authority has exercised its appellate jurisdiction in an appropriate manner to verify the correctness of the decision taken by the TSC in its evaluation procedure to come to a conclusion that there is no procedural irregularity, irrationality and impropriety in the nature of appreciation of the qualification criteria based on the documents that had been submitted by the bidders in support of their claim. The qualification criteria provided in clause 6.0 which is relevant in the instant case as provided in the amended tender conditions is that the bidder should have minimum two years experience in maintaining or performing web based TRM having minimum five lakh consumer base and involving issue of spot bills to the consumers or web based revenue management system having minimum five lakh consumer base and involving issue of spot bills to the consumers or web based billing and collection system having minimum five lakh consumer base and involving issue of spot bills to consumers. The other requirement regarding which an issue arises is that the bidder should have one Data Centre Manager (Functional Executive) having qualification B.E. (Computer Science)/B.Tech. (Computer Science)/MCA/BCA with one year experience as Functional Executive in any of the Project as per the qualification requirement. The said requirement is in view of the scope of work contemplated in clause 5.0. of the tender document.
The bid submitted by the petitioner and the fourth respondent was evaluated by the TSC in its meeting held on 22.11.2012. In the copy of the proceedings at Annexure-J to the petition, while considering the documents produced by the bidders, the case of the petitioner has been evaluated at Sl. No. 2 and in respect of the qualification required as per clause-6(i), a detailed recording has been made with regard to the requirement and while stating that the said conditions have not been complied, each of the documents submitted by the petitioner has been referred and on analysing the same, it has been observed that the nature of work carried out under the said document does not satisfy the said requirement. In respect of the requirement relating to the demonstration of sending the E-mail instantly on bill generation, it is observed that it was not complied. Further the demonstration of the functionalities for immediate implementation of web based software was also held as not complied for the reasons which has been recorded therein. In addition, the requirement of the qualified person for the Data Centre Manager was held as not complied since the certificate produced was of Diploma in Electrical and Electronics. The assessment of the document submitted by the fourth respondent has also been made in detail. But, at this juncture, it is necessary to notice that only if the petitioner also complies the requirements and the rival claims are to be evaluated, the qualification of the fourth respondent will arise for consideration.
As noticed, the TSC has made a detailed evaluation of the documents submitted by the petitioner. In the course of evaluation, the documents have been referred and the compliance or otherwise based on such documents has also been referred. The learned senior counsel for the petitioner would however contend that the conclusions reached therein is contrary to the document. In such situation, when the petitioner was before the Appellate Authority, the documents taken note of by the TSC is to be considered by the Appellate Authority in the background of the contention of the petitioner that the said documents have not been properly considered by the TSC. Hence, the nature of consideration made by the Appellate Authority would be relevant before this Court accepts the correctness or otherwise of the finding rendered by the Appellate Authority. In that direction, a perusal of the order dated 24.05.2013 passed by the Appellate Authority would indicate that the rival contentions with reference to the documents relied, have been noticed and insofar as the decision relating to evaluation, it is recorded as follows:
As regards the contention of the amendment that the bids have been erroneously held as non-responsive, it is seen from the TSC proceedings that each of the documents furnished by the appellant has been perused and considered.
Perusal of the proceedings of the TSC reveal that M/s. BCITS Bangalore has not complied with the tender condition clause No. 6(i) as amended. The qualifying requirements have not been met because the appellant has only carried out Spot Energy Bill based system at Sub-Dvn. Level. The work awarded by JVVNL in 2007 is not Web based Billing & Collection System. It may be pointed out there is a difference between Web based and Non-web based Spot Billing and Collection System. Since the appellant does not have the experience of Web Based Spot Billing & Collection System, the Tender Scrutiny Committee has come to the conclusion that the appellant is not meeting the qualifying criteria specified in the Tender.
It is further observed that the appellant has also not complied with the requirements of having demonstrated his capabilities on the following features viz.,
a) Biometric based security system
b) Integrated SMS
c) Integrated e-mail to automatically distribute the information
d) Printing of reports in multiple languages
Even assuming the fact that the appellant has inadvertently mentioned the qualification of the Data Centre Manager as a Diploma Holder, the appellant is not able to clearly demonstrate that he has fulfilled the other conditions of the tender notification.
A perusal of the conclusion of the Appellate Authority noticed above, will disclose that the Appellate Authority has referred to the evaluation made by the TSC and has stated that the proceedings of the TSC will reveal that the qualifying requirements have not been met. The conclusion of the Appellate Authority based on the evaluation made by the TSC is with reference to the documents referred therein and obviously on the documents being looked into by the Appellate Authority to arrive at a conclusion that the TSC has evaluated the available documents in its correct perspective. In such situation, though the learned senior counsel for the petitioner has referred to certain documents before this Court, more particularly the documents at Annexures-K, K1, L, N etc., this Court cannot embark upon an enquiry by re-appreciation of all the documents in the limited scope available to this Court in a certiorari proceedings as already noticed from the decision cited supra. In addition the Hon''ble Supreme Court in the case of Heinz India Pvt. Ltd. and Another Vs. State of U.P. and Others, has held that the High Court does not generally determine questions which require an elaborate examination of evidence to establish the right to enforce for which the writ is claimed. It is further held that judicial review does not allow the Court of review to examine the evidence with a view to forming its own opinion about the substantial merits of the case. The assessment by the Appellate Authority with regard to the correctness or otherwise of the evaluation by the TSC on the documents considered by it and the documents relied on by the petitioner which were already submitted with bid were necessary to be looked into by the Appellate Authority to come to a conclusion as to whether the documents which were relied on by the petitioner and available in the records of the respondents No. 2 and 3 has been considered by the TSC. From the conclusions recorded by the Appellate Authority which is noticed above, it has recorded satisfaction of the consideration made. When the evaluation relating to the capability of undertaking a technology based contract is made by the experts in the field based on the available documents and the same is to the satisfaction of the Appellate Authority, I see no valid reason to step in and interfere with the ongoing work.
Therefore, for the aforestated reasons, the writ petition stands dismissed with no order as to costs.