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Judgment
Satish K. Agnihotri, J.—By this petition, the petitioner seeks a direction to the respondent No. 1 to accept the technical bid of the petitioner and further to open the price bid in respect of item No. 41 and 50 of the Notice Inviting Tender (for short ''the NIT'') dated 24.09.2010 (Annexure P/1) and if the price bid of the petitioner is found to be the lowest, then the petitioner may be awarded the contract.
The facts, in brief, are that the petitioner, a proprietor firm engaged in the business of transportation, submitted a tender i.e. technical bid as well as price bid in separate envelopes on 01.10.2010 (Annexure P/9) for transportation of food-grains from Saraipali to Gumla (Jharkhand) at item No. 41 and from Basna to Gumla (Jharkhand) shown at item No. 50 in the NIT. The technical bid of the petitioner was rejected on the grounds, as stated in the Committee report (Annexure R/4) that lack of requisite experience, the pages of technical bid was signed without seal and attached documents were neither signed by the party nor notiarised, experience certificate issued by the FCI, DO, Raipur dated 24.06.2008 was up to 24.06.2008 only which are not for preceding two year, another work experience issued by Vedanta Aluminum and BALCO are work order/service order for transportation of Aluminum Hydrate, Alumina Sandy and which is not considerable as per the terms of the technical bid mentioned at page No. 15 of LRT technical bid. Since the works undertaken were neither food grain, fertilizer, cement nor similar nature of work. The petitioner was declared unsuccessful contractor in respect of Basna/Saraipali to Gumla 2006-2008 and the works were awarded at the ''Risk & Cost'' of the party but the party had hidden this fact in technical bid at page No. 16.
Thus, this petition seeking a direction to the respondents-FCI for accepting the technical bid of the petitioner, and if the offer is found lowest, the contract be awarded to the petitioner. The NIT was published on 24.09.2010 and the last date for receipt of tender was 1.30 p.m. on 16.10.2010 and tender was to be opened at 2 p.m. on the same day.
Shri Paranjpe, learned counsel appearing for the petitioner submits that the petitioner has obtained experience of transportation of goods as he was awarded contract of transportation of goods from Vedanta Aluminum Company, Korba. The petitioner has produced service order dated 12.11.2007 (Annexure P/6) and 23.07.2009 (Annexure P/5). It is further contended that the petitioner has experience of transportation of food-grains for the period from 09.06.2006 to 08.06.2008 by the F.C.I., as is evident from certificates dated 24.06.2009 & 09.06.2008 (Annexure P/4).
Thus, rejection on the ground of lack of experience is contrary to the facts. In respect of the fact that the pages of technical bid were not signed with seal and the documents attached were neither signed by the party nor notarised, Shri Paranjpe submits the petitioner has signed every page of the technical bid with seal. In the technical bid, wherein it was specifically mentioned that the petitioner was required to sign with seal, the same has been done and further, there was no requirement to sign every document annexed with the tender form/technical bid. The contract awarded to the petitioner earlier on dated 08.09.2008, was terminated but no new contractor was appointed before termination of his contract after 05.09.2008.
On the other hand, Shri Jaiswal, learned senior counsel appearing with Shri Pravesh Sharma, learned Advocate for the respondent/FCI submits that the petitioner has not submitted correct facts in his tender document. Clause (III) (3) of the Technical Bid requires information as to whether the tenderer''s contract has been terminated earlier before expiry of the contract period, the petitioner had replied in negative, though, as a matter of fact, the petitioner was issued show cause notice on 26.08.2008/02.09.2008 (Annexure R/1) as to why his contract for transportation of rice from Basna and Saraipali to Gumla on account of serious irregularities, be not terminated. Thereafter, by order dated 05.09.2008 (Annexure R/2), his contract was terminated before the last date of contract i.e. 08.09.2008. The petitioner has deliberately concealed this fact. The requirement of experience under clause (III)(1) of the technical expertise, dealing in fertilizers, food grains, cement or similar product during the preceding two years, the tenderer should have executed in the immediately preceding two years any single contract. The certificate produced by the petitioner at Annexure P/4 by FCI deals with only period of contract but it does not provide asto whether he had completed the contract, having experience of transportation for the entire period, as submitted earlier that the contract, which was to expire on 08.09.2008 was terminated on 05.09.2008. The service order issued by the Vedanta Aluminium Company Ltd. Annexure P/5 and Annexure P/6, does not indicate whether he had obtained experience on completion of service order as no certificate has been produced.
Shri Agrawal, learned counsel appearing for the respondent No. 4, who was awarded the contract in respect of item No. 50, supports the rejection of the technical bid of the petitioner on the ground stated in the report of the Committee and further submits that the petitioner has not completed the earlier contract for transportation as the same was terminated before completion of contract. In support of his contention, he relies on a decision of the Supreme Court in Jagdish Mandal v. State of Orissa & Others1, Glodyne Technoserve Limited v. State of Madhya Pradesh & Others2 and Siemens Public Communication Networks Private Limited and Another v. Union of India and others3.
Shri Ansari, learned senior counsel appearing with Shri Ankoosh Mishra, learned Advocate appearing for the respondent No. 3, who was awarded the contract in respect of item No. 41, would adopt the submission made by the FCI as well as the respondent No. 4.
We have considered the rival submissions advanced by the parties to the lis and also the pleadings and documents appended thereto.
The last page of the tender bid provides for declaration. In the last column, it is prescribed that the FCI shall have the right to disqualify, if the information given by the tenderer is found to be incorrect/untrue. The same reads as under:
I/We certify that all information furnished by me/us is correct and true and in the event that the information given is found to be incorrect/untrue, FCI shall have the right to disqualify me/us without giving any notice or reasons thereof.
Clause (III) (3) of the Appendix II of the Technical Bid, provides for submission of information with regard to termination of the previous contract before expiry of the contract period, the petitioner had replied in negative. The same reads as under:
(III) TECHNICAL EXPERTISE
xxx xxx xxx
Whether your contract was terminated before expiry of Contract period of Security Deposit/EMD forfeited by FCI, or any other public sector/ Govt./Quasi- Govt. Organisation/ any other Client.
xxx xxx xxx
The contention of Shri Paranjape that no new contractor was appointed for the remaining period after the termination of his contract, is contrary to the facts, as in the termination order dated 5.9.2008 it is clearly stated that Deonath Singh Rajput, who was appointed from 9.9.2008 to 8.9.2010 for transportation, would commence the work from 6.9.2008.
On perusal of the original documents, we find that the terms and conditions marked as Annexure to the form are signed but not with seal as required under the provisions of the tender form. The petitioner has signed annexure to tender appendix 1, under seal. The documents annexed with the tender, only first page was signed under seal and thereafter, no page has been signed. The first clause of NIT (Annexure P/1) also provides that all the documents annexed under Annexure 1 and 2 must be self attested. The same was also not done.
Even if there is a dispute with regard to experience, though, it appears that on termination of the contract, 3 days before the last date of contract period, the petitioner could not have obtained preceding two years minimum experience in any single contract. Even otherwise, if out of the above stated deficiency as pointed out by the expert committee, one is found to be incorrect, the position would be one and the same as there were serious deficiency committed in regard to submission of wrong information and not signing the tender form, terms and conditions and other documents, in accordance with the provisions of the tender. The decision of the FCI to reject the technical bid, cannot be flawed. Clause 1 of the appendix provides that the terms and conditions be signed under seal.
In Jagdish Mandal1, the Supreme Court has laid down guiding principles as to when in case of contract matter, judicial review is permissible. The Supreme Court observed as under:
Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating 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 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 reached";
(ii) Whether public interest is affected.
If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.
Further, in Glodyne Technoserve Limited2, the Supreme Court held as under:
The submissions made on behalf of the appellant proceeds on the basis that it was entitled, almost as a matter of right, not to submit the documents required to be submitted along with the bid documents on the supposition that, even if such documents were valid and active, they could be submitted at the time of signing of the memorandum of understanding. The appellant had a valid and active ISO 9001:2000 certification which it did not submit along with the bid documents, may be due to inadvertence, but whether such explanation was to be accepted or not lay within the discretionary powers of the authority inviting the bids. The decision taken to reject the technical bid of the appellant cannot be said to be perverse or arbitrary. We need not refer to the decisions cited by the learned Attorney General or the appellant in this regard, as the principles enunciated therein are well established.
In the Supreme Court in Siemens Public Communication Networks Private Limited3 observed as under:
On examining the facts and circumstances of the present case, we are of the view that none of the criteria has been satisfied justifying Court''s interference in the grant of contract in favour of the appellants. When the power of judicial review is invoked in the matters relating to tenders or award of contracts, certain special features have to be considered.
In the case on hand, we are of the considered view that the decision of the Committee to reject the technical bid of the petitioner is not unreasonable, arbitrary or untenable. The Committee has applied its mind properly and reasonably. This Court cannot sit in appeal over such technical assessment as there is no infirmity in the decision making process or the decision itself.
In view of foregoing and for the reasons stated thereinabove, the writ petition is dismissed with no order asto costs.