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Judgment
P.V.Kunhikrishnan, J
The writ petition is filed seeking the following prayers:-
i) Issue a writ of mandamus or any other writ, order or direction directing respondents 1 and 2 not to consider the bid of the 3rd respondent for any purpose.
ii) Issue a writ of Mandamus or any other writ, order or direction directing respondents 1 and 2 to consider Ext.P4 representation before further processing/ finalizing the tender.
When this writ petition came up for consideration, this Court bring to the notice of the counsel for the petitioner about the recent Supreme Court judgement which is published in Live Law (M/s.N.G.Projects Limited vs. M/s.Vinod Kumar Jain & Ors (2022 LiveLaw (SC) 302)). Paragraph 22 and 23 of the above judgment is as under:-
“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.
In view of the above judgments of this Court, 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 should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work.
In the light of the above judgment, the learned counsel for the petitioner submitted that he will be satisfied if the second prayer is considered. Second prayer is to consider Ext.P4 representation.
The learned Government Pleader submitted that the prayer in the writ petition is not only to consider the representation, but there is a prayer not to further process/finalize the tender.
The learned counsel appearing for the 3rd respondent also takes me through the prayer in Ext.P4. The counsel also submitted that the 1st respondent has no jurisdiction to consider Ext.P4.
Whatever that may be the petitioner submitted Ext.P4 before the 1st respondent. Without making any observation on merit, there can be a direction to consider the representation.
Hence, there will be a direction to the 1st respondent to consider Ext.P4 and pass appropriate orders in it, after giving an opportunity of hearing to the petitioner and the 3rd respondent, within one week from the date of receipt of a copy of this judgment. But I make it clear that, it will not stand in the way of processing the tenders in accordance with law. The petitioner and the 3rd respondent will appear before the 1st respondent on 01.04.2022 for hearing.
This writ petition is disposed of accordingly.