M/s CMEC Consulting Engineers Pvt. Ltd. VsUnion of India

Biswanath Rath, J.

Filing the writ petition, the petitioner being a Private Limited Company, has assailed the decision/order of the opposite party under Annexures-6 and

7 thereby rejecting the bid of the petitioner in the technical evaluation process involving invitation of bid through e-tender or RFP for Supervision

Consultant at the instance of National Highway Authorities of India vide Annexure-1.

Petitioner’s case in short is that being a Private Limited Company in association with Agnitio Infrastructure Projects Private Limited

participated in the e-tender invited by the opposite party no.3 for the work of “Consultancy Services of Supervision Consultant (SC) for operation

& Maintenance from Km.0.000 to Km.67.400 of Bhubaneswar-Puri Section of NH-203(New NH-316) in the State of Odisha. For the conditions in

the tender notice, the request for proposal RFP shall be received through “INFRACON†(www.infracon.nic.in) and will be evaluated basing on

details furnished on “INFRACONâ€. It was also a condition in the tender that before submitting tender, the consultant shall mandatorily register

and enlist themselves on the MoRT&H portal “INFRACON†and upload all relevant information to enable correct evaluation of RFP. For the

clause-10 therein. It also required that , the Consultants may apply either as a sole firm or forming Joint Venture with other consultants and in the case

of Joint Venture, maximum number of Joint Venture partners was also limited to 2 i.e. one lead and 1 JV Partners. It is accordingly, on 24.02.2020,

petitioner in association with its partner applied for the above mentioned work and claimed to have uploaded all relevant information on the mandate

site “INFRACONâ€. It is also claimed that the deponent in the writ petition was given power of attorney as the authorized representative to work

on behalf of the company & the association. Petitioner further claimed that petitioner fulfilled all the eligibility criteria in technical evaluation process.

Upon considering the technical bid involving the petitioner, when score was intimated to the petitioner on 24.04.2020 finding it at lower side, the

petitioner vide letter dated 28.04.2020 objected to the said scoring, particularly, claiming that in the matter of scoring on experience, the score was 15

instead of 20 and 8 points in place of 7 points was to be awarded for the five O&M works. Petitioner alleged that in spite of competency and eligibility

according to clause-11 B and submission of all relevant documents concerning MOU with the partner for entire services by sharing the responsibility

jointly and severally for all the obligation and liabilities with leading part of the petitioner along with documents of ownership of the equipments, the

same was not taken into account for the reason best known to the authority and in the opening of the technical bid, petitioner was illegally disqualified

by the opposite party on the reason of “non-responsiveâ€​.

Mrs.K.R.Choudhury, learned counsel appearing for the petitioner in her attempt to substantiate the claim of the petitioner contended that the

Evaluation Committee appointed by the NHAI was required to carry out its evaluation applying the evaluation criteria at Appendix-B-10 and point

system specified in National Highways Authority of India RFP for Supervision Consultant 11 of the data sheet. It is alleged that petitioner’s

complaint in the matter of wrong evaluation by the Evaluation Committee was also not taken into account. Learned counsel for the petitioner further

alleged that petitioner being aggrieved by such evaluation and the illegal rejection of the case of the petitioner, further finding no reason assigned in

intimating the reason for rejection, approached the opposite party no.2 but it was responded intimating the petitioner that they are not bound to give

reasons. Learned counsel for the petitioner on the premises of evaluation being contrary to the tender conditions as well as in violation of principle of

natural justice, prays this Court for interfering in the rejection orders at Annexures-6 and 7 impugned herein.

Taking this Court to the rejoinder affidavit of the petitioner, Mrs.Choudhury, learned counsel for the petitioner while reiterating her submissions

already made, contended that the technical Evaluation Committee has acted contrary to the conditions contained in the tender notice. Taking to the

submission made in paragraph-7 therein, Mrs. Choudhury, learned counsel further contended that technical score was intimated to the petitioner on

24.04.2020 requesting its response within seven days in case of objection, if any, but however without disclosing the score of other bidders. It is

contended that petitioner in response to the said intimation made his objection clearly pointing the discrepancies in the technical score awarded to the

petitioner. Giving reference to Annexure-3, it is alleged by Mrs. Choudhury, learned counsel that there is no proper consideration of the bid of the

petitioner. It is however admitted that for this Court passing an interim order to the effect that award of contract shall be subject to the outcome of the

writ petition, the opposite party continued with the opening of financial bid and ultimately issued letter of award and proceeded with the signing of the

agreement.

Further, taking this Court to a decision in the case of Sampad Samal Vrs. State of Odisha and others, AIR 2017 Orissa 33, Mrs. Choudhury, learned

counsel for the petitioner submitted that for the settled position of law, an authority is required to reject the case of the bidder provided there is proper

and adequate ground for passing such an order and the decision of the competent authority cannot be arbitrary. It is on the premises of rejection of the

case of the petitioner vide the impugned orders without assigning any reason, Mrs. Choudhury, learned counsel appearing for the petitioner bringing

the aforesaid decision to the notice of this Court attempted to cover her case on the principle decided in the aforesaid decision and accordingly in

concluding her submission, Mrs.Choudhury, learned counsel for the petitioner drawing attention of this Court to a document appended to the memo

dated 20.11.2020 attempted to submit that in similar situation when some other party has been given more marks and its tender has been accepted,

there is no reason to reject the case of the petitioner.

Mr.U.Ch.Mohanty, learned Counsel appearing for opposite party nos. 2 to 4 on the other hand while strongly disputing the objection raised by

learned counsel for the petitioner, taking this Court through the counter averments made in paragraphs-3, 4 and 7 submitted that the Evaluation

Committee has made evaluation of the bids involving the participants strictly following the conditions in the tender notice. It is specifically contended

by Mr.Mohanty that for the condition in the RFP requiring to short list 5 (five) bidders from the top and petitioner’s position since stood at Sl.No.6,

there was no occasion on the part of the competent authority to consider the case of the petitioner admittedly remaining outside 5 top contenders. In

his opposition to the allegation of the learned counsel for the petitioner that the rejection of bid of the petitioner and claim of the petitioner not assigning

any reason, Sri Mohanty while disputing such allegations, taking this Court to the decision of the Hon’ble Apex Court in the case ofR ishi Kiran

Logistics Private Limited Vrs. Board of Trustees of Kandla Port Trust and others, (2015) 13 SCC 233 C, handra Sekhar Swain (in both) Vrs. State of

Odisha & ors. (in both), 2017 (I) ILR-CUT-403 and in the case ofS tate of Jharkhand and others Vrs. M/s. CWE-SOMA Construction, AIR 2016 SC

3366, Mr.Mohanty, learned counsel appearing for the contesting opposite parties submitted that for the settled position of law through the above

judgments, there is no obligation on the part of the authority issuing tender notice to accept any of the tender or even the lowest/highest tender and

unless and until the bid is accepted. It is further submitted that successful bidder acquires no vested right to claim for settlement of bid in his favour,

Mr.Mohanty, learned counsel therefore prayed this Court for not entertaining the writ petition and thereby dismissing the same.

Considering the rival contentions of the parties, taking into account the plea taken in the writ petition and the submissions made in the counter

affidavit, this Court finds there is no satisfactory explanation of the petitioner involving violation of any of the conditions in the tender notice in the

matter of technical evaluation involving the bid of the participants. Further, on perusal of the document at Annexure-4, this Court finds there is no

involvement of the case of non-consideration of the case of the petitioner. It is on the other hand from the tabulation provided in Annexure-4, this

Court finds after working out the information from the bids of the respective parties, the competent authority prepared a tabular statement on the

technical scoring as well as rank involving all the participants.

Perusal of Annexure-4, there remains no doubt that petitioner has the technical score 88.01 whereas the 5 (five) participants figuring at the top of the

said statement all have scored not only the technical score above the petitioner, but they all also stood above the petitioner in rank. For involvement of

technical assessment and competent authority having applied its mind to come up to such assessment, this Court finds there is hardly any scope to

interfere in such matters. Further, for the petitioner’s scoring at Rank-6, looking to the Clause-8 of Section-1 (Information To Consultants) of the

RFP, financial bid of top 5 (five) bidders being required to be opened, the case of the petitioner standing at Rank-6, was rightly rejected. Further,

looking to the party position in the writ petition also this Court finds since there are 5 (five) successful bidders above the petitioner are not made party

to this litigation, this Court finds the writ petition is also required to be dismissed for non-joinder of proper parties. Further, for the admitted position of

both the parties that not only there has been award of work in the meantime, there is also signing of the agreement and commencement of work at the

site in the meantime, this Court finds there is otherwise also no scope for interfering with the action of the opposite parties at this stage of the matter.

On perusal of records through the document vide Annexure-F/4 from the additional affidavit of the opposite parties, a correspondence dated

14.05.2020, this Court finds the petitioner has intimated the authority that on entertainment of the writ petition, this Court stayed the bid process

whereas the order dated 14.05.2020 issued by this Court reveals that this Court directed that any award of the contract in question shall be subject to

the outcome of the writ petition, for information of the petitioner remaining contrary to the order passed by this Court, this Court takes strong

exception on the approach of the petitioner through its letter dated 14.05.2020. Further looking to the tender condition in the RFP for Supervision

Consultant, particularly, the condition at 11 (A) and 11 (B) available at page 17 of the brief, this Court finds petitioner though was required to submit a

MOU with associates regarding role and responsibility of Associate Company at the time of submission of bid, the bid of the petitioner is also found to

be defective for non-supply of the MOU required therein in term of Clause -11 (A) and 11 (B) therein.

This Court here taking into consideration the citation at the instance of the learned counsel for the petitioner through Sampad Samal Vrs. State of

Odisha and others, AIR 2017 Orissa 33, finds this decision does not have application to the case at hand.

This Court taking on the position of law involving the dispute herein finds, in the case of R.V. Independent Television Commission, ex p TSW

Broadcasting Limited, reported in 1996 JR 185: 1996 EMLR 291, the leading speeches in the House of Lords were delivered by Lord Templeman and

Lord Goff. Lord Templeman stated:

“Where Parliament has not provided for an appeal from a decision-maker the courts must not invent an appeal machinery. In the present case Parliament has

conferred powers and discretions and imposed duties on ITC. Parliament has not provided any appeal machinery. Even if ITC make mistakes of fact or mistakes of

law, there is no appeal from their decision. The courts have invented the remedies of judicial review not to provide the appeal machinery but to ensure that the

decision-maker does not exceed or abuse his powers….. But the rules of natural justice do not render a decision invalid because the decision-maker or his advisers

make a mistake of fact or a mistake of law. Only if the reasons given by ITC for the decision to reject the application…..disclosed illegally, irrationality or procedural

impropriety …. Could the decision be open to judicial review.â€​

In the concluding section of his section of his speech, he added:

“Of course in judicial review proceedings, as in any other proceedings, everything depends on the facts. But judicial review should not be allowed to run riot. The

practice of delving through documents and conversations and extracting a few sentences which enable a skilled advocate to produce doubt and confusion where

none exists should not be repeated.â€​

Similarly, in the case of Nottinghamshire Country Council Vrs. Secy. Of State for the Environment, reported in 1986 AC 240 : (1986) 2WLR 1 :

(1986) 1 All ER 196 (HL), it is held :

“……Judicial review is a great weapon in the hands of the judges; but the judges must observe the constitutional limits set by our parliamentary system upon

their exercise of this beneficent power.â€​

This Court here taking into account a decision of Hon’ble Apex Court in the case of Michigan Rubber (India) Limited Vrs. State of Karnataka

and others, reported in (2012) 8 SCC 216, the Hon’ble Supreme Court in Paragraphs- 23 and 24 held as follows:

“23. “From the above decisions, the following principles emerge:

(a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions

are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State

acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities:

(b) Fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down

such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as

awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very limited;

 (c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless

the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted;

(d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute

the work; and

(e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no

person can claim a fundamental right to carry on business with the Government.

Therefore, 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 mala fide 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 reachedâ€​? and

 (ii) Whether the public interest is affected?

If the answers to the above questions are in the negative, then there should be no interference under Article 226.â€​

From the above decision, in paragraph-35 finally the Hon’ble Supreme Court also observed that the Court would not normally interfere with the

policy decision and in matters challenging the award of contract by the State or Public Authorities.

This Court from the above settled position of law finds the decision discussed hereinabove rather opposes the claim of the

petitioner for interfering in the tender process.

For the reason assigned hereinabove, this Court finds no merit involving the writ petition. As a consequence the writ petition stands dismissed. No

Cost.

As restrictions are still continuing due to the pandemic Covid-19, learned counsel may utilize the soft copy of this judgment available in the High

Court’s Official website or print out thereof at par with certified copies in the manner prescribed, vide Court’s Notice No.4587 dated

25.03.2020.

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