Rite Water Solutions And Ors vs State Of Rajasthan And Ors

The petitioner-company by way of this writ petition has challenged the tender bid evaluation process in NIT No.18/2019- 2020 and also challenged the order dated 6 th May, 2020, whereby they have been disqualified. The petitioner-company also challenged the order passed in first appeal, whereby their appeal was dismissed and the order passed in second appeal affirming the order of dismissal of first appeal, dated 21 st May, 2020 and 30th June, 2020 respectively. They further assailed the declaration of e-procurement website dated 22nd May, 2020, whereby respondents Nos.5 and 6 have been placed as L1 and L2.

The brief facts which need to be noticed for the purpose are that the respondent-Public Health and Engineering Department ("PHED") issued an NIT for "designing, providing, installation and commissioning of 186 Nos. of Solar Energy based bore well water pumping systems with De-fluoridation unit capacity of 1000 LPH including comprehensive operation and maintenance" for a period of seven years at various fluoride affected villages/habitations in District Sawaimadhopur (Bharatpur Region). The estimated value of the tender is approximately Rs.22,59,30,000/- only.

As per the NIT, the prospective bidders were to purchase the document from the website of the Government on deposition of Rs.10,000 as the prescribed fee. The last date for submission of bid as well as deposition of earnest money and demand draft was 16th March, 2020 and 17th March, 2020 respectively. The technical bid was scheduled to be opened on 17th March, 2020.

The petitioner-company participated in the tender process and after the technical bid was opened, vide letter dated 6 th May, 2020, it was informed that the petitioner-company had not been found eligible and technically qualified as it did not meet the technical criteria as mentioned in Clause-4.1.2.

The petitioner-company submitted that the State Government had notified identical tenders for 5 other Regions namely Jodhpur-I, Jodhpur-II, Udaipur Region, Jaipur and Kota. The petitioner participated in the bids for Bharatpur Region as well as for Udaipur Region and Jodhpur-I and Jodhpur-II Region and the petitioner-company has been disqualified at all the four Regions.

Learned counsel for the petitioner-company submitted that the petitioner-company has already challenged disqualification at Jodhpur-I & II Region and Udaipur Region at Principal Seat, Jodhpur. As far as for the present Bharatpur Region, the petitioner-company had preferred first appeal which came to be rejected by the Chief Engineer and thereafter filed second appeal which too was rejected on the identical grounds and the reasons have not been assigned.

It was also submitted that the Chief Engineer-respondent No.3 Shri R.K.Meena had originally disqualified the petitioner- company and had conveyed to the Additional Chief Engineer about the petitioner being non-responsive vide letter dated 5th May, 2020. However, this fact was not in the knowledge of the petitioner-company and when they filed the first appeal, Chief Engineer Shri R.K.Meena himself examined the appeal and rejected the same. The second appeal was examined by the Principal Secretary who has also rejected the appeal on the same grounds. Thus, learned counsel submitted that the petitioner- company has not been given a fair opportunity and the person, who has originally disqualified the petitioner-company, has himself adjudicated the appeal also. The petitioner-company further submitted that the disqualification was illegal and unjustified and the petitioner-company could not have been disqualified as it met the requirements in terms of Para 4.1.2 of the tender document and therefore, has prayed as noticed above.

At the stage of admission itself, the respective counsels have put in appearance by way of caveat and orally argued on behalf of the respondent/s and submitted that no interference is warranted.

Learned counsel for the respondent/s pointed out that the terms of tender provided for first appeal to be heard by the Chief Engineer and the second appeal to be heard by the Principal Secretary and therefore, by reason of holding Office of Chief Engineer, R.K. Meena decided the first appeal.

As regards the contention of the petitioner of decision having been taken by the Chief Engineer, PHED for disqualifying the petitioner-company, learned counsel submits that the letter dated 5th May, 2020 prima facie treats petitioner-company as non- responsive. However, the letter dated 5 th May, 2020 is only of advisory nature and it is actually vide letter dated 6 th May, 2020 that the Additional Chief Engineer has held the petitioner-company to be a non-responsive and disqualified.

Learned counsel appearing for the State has also pointed out that as per the terms, the petitioner-company was disqualified as it was required to submit a test report for non-toxicity and potability of treated water indicating chemical parameters of raw- water and treated water. The test report should not be older than six months from the date of submission of the bid. However, the petitioner-company submitted test report of non-toxicity of treated water issued by Shreeji Analytical Research Lab Pvt. Ltd. which was older than six months. However, the petitioner-company has submitted that another certificate of CSIR-IMMT dated 14 th January, 2020 had been placed along with tender to prove their experience potability and non-toxicity of treated water but the certificate dated 14th January, 2020 issued by CSIR-IMMT does not comply with the tender condition 4.1.2 as there is no comment conclusion on tested parameters especially with reference to non- toxicity and potability of treated water.

Learned counsel for the respondent/s has pointed out that the petitioner bidder has proposed using of resin SSTC-60 in his technology while the certificate mentions of using different resin namely, SST-60. SSTC-60 and SST-60 are two different medias and the bidder was not allowed to change the technology offered without prior permission to the Department. Even in the certificate dated 12th March, 2020, it was mentioned of using media SSTC-60 while another certificate placed in second appeal dated 4 th June, 2020 mentioned of using media SST-60, thus two different certificates have been issued which are misleading and mention above two different medias.

Learned counsel submitted that the respondents-Engineers, who are having experience in the field, have thoroughly submitted their detailed reply to the appeal and replied to the grounds raised therein which have been noticed by both the Appellate Authorities and after having been satisfied with the contentions of the respondent/s in reply, the decision has been taken to reject the appeals.

Learned counsel submitted that scope for interference in contractual matters and especially with regard to the technical specifications so required in a particular NIT is very limited unless it can be said that petitioner-company was ousted malafidely, for which sufficient proof should have been placed on record, no interference is warranted in such matters as it is to the satisfaction of the respondent/s alone that the concerned Company is required to meet the qualitative criteria. Even against Shri R.K. Meena, no malafides have been attributed.

I have considered the submissions.

This Court notices that the scope of judicial review in award of contracts has been a subject matter of various decisions by the Supreme Court. However, generally the Courts have been following consistently the principles laid down in the case of Tata Cellular Vs. Union of India (supra) wherein the Supreme Court in Para 94 of its judgment has observed as under:-

"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 correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.

(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by malafides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."

In AIR India Ltd. Vs. Cochin International Airport Ltd. & others: (2000) 2 SCC 617, the Supreme Court observed in Para 7 of its judgment as under:-

"7. The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in R.D. Shetty v. International Airport Authority, 1979 (3) SCC 488; Fertilizer Corporation Kamgar Union v. Union of India, : (1981)ILLJ193SC ; Asstt. Collector, Central Excise v. Dunlop India Ltd,:1985ECR4(SC), Tata Cellular v. Union of India,: AIR1996SC11 ; Ramniklal N. Bhutta v. State of Maharashtra,: AIR1997SC1236 and Raunaq International Ltd. v. I.V.R. Construction Ltd.,: AIR1999SC393 . The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are of paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the Court can examine the decision making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process the Court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should intervene."

The petitioner-company's appeal and contentions thereof have been examined by the Chief Engineer which cannot be said that because the concerned Officer R.K. Meena had earlier recommended for the bid of the petitioner being non-responsive he would have not examined the appeal independently by reason of holding Office. I have gone through the order passed by the appellate authority and find that the Appellate Authority has without being influenced by its earlier decision examined the appeal threadbare and all contentions were noticed by it and after having reached to the conclusion examined the reply of the Department, reached to the conclusion that the petitioner-company was not technically qualified. No malafides have been attributed to him.

The second Appellate Authority has also dealt with the second appeal independently and has noticed each and every contention and given a finding ultimately upholding the order of the Appellate Authority. This court would be slow in substituting its own opinion to that of technical experts as held in Tata Cellular (supra).

Suffice it to state as noticed above that the petitioner- company has submitted two different certificates of two different dates with regard to two different medias used for the purpose of fluoride SSTC-60 and SST-60 are two different medias. As per the tender condition of the bid, the bidder was not allowed to change the technology offered without prior permission from Department. Hence, if two certificates of two different medias used are produced, it would definitely be treated as misleading and therefore the respondents have treated the bid as non-responsive. On another aspect also with regard to certificate dated 14 th January, 2020, the respondents had submitted a reply before the Appellate Authorities pointing out that the certificate was not acceptable and did not comment/conclude on tested parameters with reference to non-toxicity and potability of treated water.

This court finds that the purpose of issuing of NIT is for providing of potable water and for community drinking supply. The matter relates to public health at large and therefore, it is expected of the authorities to be very careful in reaching to conclusion whether a particular bidder is technically qualified or not. Once the authorities reach to this conclusion that a particular bidder is not technically qualified, it would be venturing into dangerous zones by this court if this court proceeds to examine itself, the technical viability of a prospective bidder. It is best to leave it for experts.

In view of the above, I am not inclined to interfere with the impugned orders. The writ petition is found to be devoid of merits and the same is accordingly dismissed.