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Judgment
M. Sharma, J.—The challenge in both the writ petitions is the process of opening the tenders submitted by the tenderers including the Petitioners against the Notice Inviting Tender No. CE/PHE/1 of 1997-98 issued by the Chief Engineer, Public Health Engineering Department, Mizoram, Aizawl. As the above writ petitions involve common questions of law and facts I propose to dispose of the above writ petitions by a common judgment.
The facts, briefly stated, are that the Chief Engineer, Public Health Engineering Department, Govt, of Mizoram (Respondent No. 3) issued Notice inviting tender (for short NIT) No. CE/PHE/1 of 1997-98 on 29.12.97 for design, supply, erection, testing , commission and maintenance of pumping machinery, electrical equipment, electrical association and civil works for Greater Aizawl Water Supply Scheme Phase-D. From time to time certain clauses of the tender dated 29.12.97 were amended. Clause 1.5 of the tender stipulated that tender would be submitted in two(2) separate sealed envelopes, that is, envelope-A would contain technical bid with copies of documents as indicated in the Clause 1.5.1 and envelope-B would contain price bid as indicated in Clause 1.5.2. of the NIT. Eligibility for tender was set out in Clause 2.5. The estimated cost of the project was mentioned as Rs 32.07 crores. The allegation of the Petitioner in Civil Rule No. 6011/98 is that the aforesaid NIT was not published/notified adequately and the advertisement was given without necessary details in one national newspaper two days before the last date of purchase of the tender papers/documents and it was done deliberately to avoid competition. It is further alleged that original tender notice dated 29.12.97 was published on 20.1.98 in "The Assam Tribune" which did not disclose all details of NIT. The contention of the Petitioner is that the Petitioner who is based in Mizoram could learn about the NTT and it immediately purchased the tender papers. However, the Petitioner notices some technical unsuitability in the NTT which are vital in nature and accordingly Petitioner informed the Respondent authority suggesting some changes in the scheme, so that exchequer can be saved from substantial loss. Petitioner suggested the authorities to change the scheme after consultation with the public institutions like Indian Institute of Technology etc. The Petitioner claims that due to idndequate publicity of the NIT there is no avenue for proper completion.
Petitioners state that on.27.12.98 Respondent No. 3 opened technical bid of the tender in presence of the tenderer and the representatives of the Petitioners. The representatives of the Petitioners notices certain deficiencies in respect of eligibility criteria in respect of Respondents No. 4 to 7. The Petitioners pointed out this aspect of the matter to the Respondent authority highlighting the major shortcoming and deficiencies (Annexure-VII to the WP). The Petitioner has, in the petition, given gist of non-eligibility of the Respondents No. 4, 6 and 7, as these three Respondents succeeded in the technical bid, which is reproduced below:
Respondent No. 4: Kirloskar Electric Company Ltd.
a) Efficiency of pumps or models of the pump not disclosed
b) No data sheet of the pump submitted
Respondent No. 6: Mather and Plant (India) Ltd.
a) No Income Tax clearance certificate
b) No Balance Sheet evidencing performance
c) Lack of efficiency in respect of pumps(3 types)
d) Total loss of transfer not submitted
e) For raising Main-SAIL pipe quoted
f) Data sheet for most of the items not submitted
Respondent No. 7: Johnson Eastern Power
a) No Income Tax clearance certificate submitted
b) Balance Sheet not submitted (Clause 3.5.2 of NIT, Vol-I)
c) Efficiency of three pumps given
d) Pipes of SAIL quoted
e) Transformer Loss quoted as 6 KW which is not feasible and technically incorrect
f) Validity quoted as 120 days against 180 days required in the NIT.
Regarding non-eligibility of Respondent No. 7 it has been alleged that Respondent No. 7 is not a tribal and as such on the ground of his non furnishing the required financial statement as mentioned in the NTT, his tender is liable to be rejected; that pipe specifications as indicated in the tender is not manufactured by Steel Authority of India Ltd (SAIL); that Respondent No. 7 quoted the sale price but Respondent No. 6 did not comply with these requirements. On 28.10.98 Respondent No. 3 asked the Petitioner to extend the validity of the tender by another 90 days and accordingly same was extended. On 20.11.98 Respondent No. 3 however, opened price bid of another disqualified tenderer illegally excluding the Petitioner; that Respondent No. 6 did not carry out any Water Supply Scheme and have no background of civil construction nor submitted any similar scheme in any past of the country; likewise it is contended, Respondent No. 7 also has not completed a single similar project. About the eligibility of the Respondent No. 7 it is contended that Respondent No. 7 was granted turnkey projects for Serchip Water Supply Scheme and Kolasib Water Supply Scheme and on two occasions civil construction has collapsed killing four persons and injuring several others; that no communication was made to the Petitioner informing the reasons for non-consideration of its price bid along with other tenderers.
The Petitioners also challenged the action of the Technical Committee which was constituted for evaluation of technical bid and by which the committee sought for taking opinion by engaging Consultant as third party, namely, Design Group, Bangalore and that there was no such Clause/terms in the NIT. The Petitioners alleged that the third party, namely, Design Group, Bangalore lacks competence to deal with the project of the kind for which NIT was floated. Petitioners further challenge the manner and methods of selecting outside agency and claim that such selection is not sustainable in law. Petitioners challenge the process of recommendation alleging that although only technical bid of the tenderers were sent to the Design Group, this Group/Firm while making recommendation remarked that Respondent No. 7 has offered certain discount in price bid, if the demand of increase in cost during the contract period as per formulae are acceptable. This recommendation is challenged on the ground that this evaluation of third party/outside party at entering into the decision making process makes the entire process illegal. Petitioners'' stand is that on the basis of such recommendation the said Design Group listed certain shortcomings of the Petitioner for which price bid of the Petitioner was not opened and such decision of the Government not to open the price bid on the alleged ground that Petitioner was not eligible is arbitrary and not sustainable.
Petitioners further case is that technical bid of the Petitioners were valid in all respect and they offered most competitive price bid having regard to the estimated cost of the project. But the Respondents No. 4, 6 and 7 formed a cartel and quoted their prices in such a manner, which influenced rejection of the Petitioners'' technical bids alongwith Respondent No. 5. The Petitioners further alleged that price offered by the Respondents No. 4, 6 and 7 was many times higher than the estimated cost and acceptance of that price would enable those Respondents to get maximum amount from the Government for their personal interest at the cost of public exchequer, where payment of monthly interest is involved; and that Government aided the cause of those three Respondents by eliminating both the Petitioners from the area of consideration. Challenging the process, the Petitioners contend that in a major contract on turn-key project when technical bid consists extremely technical aspects the normal procedure is to invite the tenderers to have discussion on their technical bid, so that state can secure best possible advantage for the bid. Due to the lack of consultative process in the instant case, it is alleged, the decision making process of the Respondent Government has been prejudiced and the Petitioners pray for review of this process and this Court is required to quash the entire process of tender, more so, when there is no shortcoming in the technical bid of the Petitioners, that price quoted by the Petitioners are within the estimated cost whereas the price quoted by the Respondent No. 7 was Rs 132.00 crores, and inspite of such huge difference between the estimated cost and the bid amount, the Respondents/authority proceeded with finalisation of the tender and that there is no disclosure from the Government indicating finance available to the tune of Rs. 132.00 crores. According to the Petitioners, from the above it is clear that the Respondents acted arbitrarily and discriminatorily in not opening the price bid of the Petitioners, inspite of the fact that they fulfilled all the eligibility criteria.
Affidavits-in-opposition have been filed on behalf of the Respondents No. 1,2 and 3 through the Joint Secretary to the Government of Mizoram, Department of Public Health Engineering and also on behalf of the Respondent No. 7.
The stand of the Respondent-Government is that since the writ Petitioners have not challenged the findings of the Expert Committee holding the technical bid unsuitable on any ground, whatsoever, this writ court cannot issue mandamus to pen their price bid, and therefore, no relief can be granted as prayed for by the Petitioners without first setting aside the findings of the Technical/Expert committee. Further, these Respondents in their affidavit-in-opposition have denied the allegation of the Petitioners that the whole scheme for Water Supply Phase-H is technically unsuitable; that before issuance of the NIT, Central Government in the Central Public Health Engineering and Environmental Organisation evaluated the Scheme and approved the same and decided to release necessary funds for the project. It is further averred that in terms of Clause 2.5.1 of the NIT past experience of a tenderer makes him eligible to submit tender. But such experience cannot confer any right to the tenderer to accept his technical bid for the present Scheme automatically.
Mr. K.P. Pathak, learned Advocate General, Mizoram submitted on the basis of record that there was no unfair method or discriminatory attitude reflected in the tender process. Referring to para 4 of the Technical Committee Report (Annexure-VII to the Writ Petition) learned Advocate General submitted that Petitioner''s (SPML) past experience was good but the report shows that Petitioner''s firm failed in technical bid as there was some technical defects as indicated in the report. Further it was submitted that if the technical bid of a tenderer is found satisfactory and feasible after opening the Envelope-A, then only his financial/price bid in Envelope-B would be opened; that accordingly on 27.2.98 Envelope-A of the tenderers were opened and placed before the Work Advisory Board of the Government which was manned by the Chief Secretary and senior officers of the Government; that this work Advisory Board constituted a Technical Committee consisting of the Chief Engineers of Public Health Engineering Department, Public Works Department, Power and Electricity Department and Joint Secretary of the Public Health Engineering Department; that this Technical Committee decided to take opinion of Expert Consultancy Firm in addition to its own individual technical evaluation in order to ensure viable evaluation of the technical bid. Accordingly, M/s Design Group of Bangalore was selected from amongst six reputed Consultancy Firms from all over India. Refuting the allegations of the Petitioner, learned Advocate General has produced the list of documents wherein experience, activities and competence of this Design Group was indicated and it was pointed that even for the listing of its performance, it is seen that in some matters Petitioners-Company may take expert advice from this Design Group in some occasions.
From the record submitted by the Government it is seen that on 27.10.98 the said Design Group submitted its report where in para 2.03.05 and 2.04.05 technical defects of the Petitioner(SPML) and Kirloskar Brothers Ltd are pointed out. The record further shows that on 2.11.98 the Technical Committee submitted its own report and in para 4 of this report defects of the Petitioners were pointed out. Highlighting and marshalling of the process, Mr Pathak has submitted that on 3.11.98 and 7.11.98 Work Advisory Board considered the said Expert''s report and tender papers and decided not to open price bid, i.e. Envelope-B of both the writ Petitioners and decided to open the Envelope-B of the other tenderers, who succeeded in technical evaluation and accordingly on 18.11.98 writ Petitioners were intimated. On 26.11.98 Enveloped-B containing their financial bids were returned to the Petitioners. On 20.11.98 Envelope-B containing price bid of the remaining three bidders were opened and processed for comparative statement before negotiation on their technical bid by the Government (Annexures-VT, VII, X, XI, Xm and XTV respectively). Respondent No. 7 in its affidavit filed through Philip Vanlalmawia John supported the stand of the Government.
From the backdrop of the contention of the parties and the arguments offered by the learned Counsel for the parties it is seen, the Petitioners have raised mainly the following issues in their petitions.
(a) Lack of adequate publicity of the NIT,
(b) Technical shortcoming of the NIT,
(c) Procedural infirmity in taking the advice of 3rd party which is claimed to be unknown consultancy firm outside the terms of NIT,
(d) Non-compliance of terms of eligibility criteria of the Respondent No. 7 and other successful tenderers in technical bid,
(e) Non-disclosure of the reasons for cancelling the Petitioner''s bid, and
(f) Escalation of price of work from Rs. 32.00 Crores to Rs 132.00 Crores.
Before deciding these issues it is opposite to look to the settled principles in such matters require to be followed by the Writ Court. Judicial review is not concerned with the merit of the decision but the decision making process itself. In Tata Cellular Vs. Union of India, the Apex Court enumerated the principles which are as follows:
(1) The modern trend points to judicial restraint in administrative action.
(2) The court does not suit as a Court of appeal but merely revises 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 negotiation through several ties. More often that not, such decisions are made qualitatively by experts.
(5)The Government must have freedom of contract. In other words a fairplay in the joints is a necessary concomitant for an administrative body functioning in a administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principles of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.
This Court in the process of judicial review is required to examine the opinion of the Respondent-Government in deciding suitability of the tenders to pass the test in technical bid as to satisfy that the process of examining the eligibility in the financial stage is fair and procedures adopted in testing eligibility in the crucial financial stage is not abused by procedural infirmity and by unfair consideration clothed with discriminatory power the Government cannot act arbitrarily and give award to a private party according to its wishes. It is, however, well settled principle that certain nature of "fairplay in joints" is necessary for public body functioning in administrative sphere (relied on Marco Mechanics(P) Ltd. v. SK Stock Exchange, AIR 1999 SC 105. When the court find some prima facie case for interfering the decision making process, the court has the jurisdiction to review the order to prevent the arbitrariness and infirmities.
Mr Phookan, learned Counsel for the Petitioner in WP(C) 43/99 adopted the similar line of arguments advanced by Mr A.K. Panja, learned Sr. Counsel. Similarly, Respondent No. 7 also adopted the argument of the learned Advocate General. Mr Pathak, learned Advocate General while refuting the allegations of the Petitioners produced the entire record relating to the contract in question. Accordingly, both the Respondents reiterated the point that since the Petitioners had not challenged and prayed for quashing the findings of the Expert Committee by which Petitioners'' Technical Bid was rejected as unsuitable, are not entitled to pray for direction to open their price bid and that in absence of any specific prayer this Court cannot set aside the decision of the Expert Committee and call on to re-tender the work in question. Mr Panja, learned Sr Counsel for the Petitioner has submitted that on the date of filing the writ petition on 27.11.98 Petitioner did not received any information regarding non-opening of his price bid and only after coming to know from other sources, statements were made by the Petitioner, and, therefore, there is no occasion to make prayer for cancelling the tender or quashing the decision of the Technical/Expert committee and that Petitioner made prayer for re-tender on the basis of the subsequent circumstances and for direction for purchase of tenders. Regarding allegation of publication of NIT two days prior to the last date fixed for purchase of tender, Mr Pathak, learned Advocate General, has submitted that no last date was fixed for purchase of tender papers and that sufficient publicity was given in the important and widely circulated newspapers and accordingly the tenderers came and filed their papers in response to the advertisement and reputed tenders participated in the tender process. That, considering the geographical location of the State of Mizoram the response to the tender is considered very encouraging and reiterated that NTT was advertised in many national and local newspapers, even extension of last date was also advertised.
It has been argued that the allegation of the Petitioner is also not sustainable on the ground that admittedly the Petitioner purchased the tender papers on 12.11.98 and requested the Government to extend the last date of submission of tender paper till 27.12.98 and the Petitioner was not prejudiced as he filed his tender paper well ahead of scheduled time and he was also given extension at his request. Apparently, parties who responded to the advertisement came from different parts of the country and there was wide participation by sufficient tenderers. The admitted fact is that eleven parties all over the country respanded to the NIT advertisement and eight parties purchased tender papers and five parties submitted tender papers.
The expenditure of advertisement in terms of the Central Public Works Department mannual and also per normal practice followed by the other Government agencies as per Volume II Section 18 and it provides that advertisement of NTT should be brief to save the Government expenditure. I find sufficient merit in the submission of the learned Advocate General. The learned Counsel for the Respondents, regarding publicity of advertisement of the NIT, have submitted that record shows that before issuance of NIT Central Government in the Public Health Engineering Department corrected and evaluated the whole Scheme and decided to release necessary fund for the project. Therefore, the allegation of the technical unsuitability of the whole scheme is not sustainable as the scheme cannot be said beyond the technical competence of the Petitioner.
The Petitioners claim to be experts in Water Supply Contract business and its past experience cannot be the ground to consider Petitioner''s technical bid as suitable. In terms of Clause 1.5.1 of the NIT, past experience only make a party eligible to submit tender but for such past experience of the Petitioners their technical bid for the Water Supply Scheme cannot be automatically technically feasible. The Technical Committee report(Para 4 of the technical report, Annexure-VII) shows that Petitioners'' past experience and status was good but report shows that Petitioner failed in the technical bid having technical defects as stated in the report. As stated above, as per NIT tenders were required to be submitted in two Envelopes, viz, Envelope-A and Envelop-B. If tenderers technical bid in Envelop-A is found technically feasible then only technical bid in Envelope-B would be opened. As the procedure adopted by the Expert Committee in the decision making process is found in terms of the NIT, the court cannot be the Appellate Authority to take a different view. It transpires that on 27.2.98 Envelop-A of the tenderers were opened and placed before the Work Advisory Board which is heard by Chief Secretary and Senior Officers of the Government. The Work Advisory committee on 9.7.98 constituted a Technical committee consisting of three Chief Engineers of Public Health Engineering Department, Public Works Department and Joint Secretary of the Public Health Engineering Department. On 15.7.98 the Technical Committee decided to take opinion of the Expert Consultancy Firm in addition to Technical Committee''s own independent technical evaluation of the technical bids. Accordingly, offers were called for from different reputed consultancy firms from all over India and out of these Design Group, Bangalore was entrusted to give consultancy services on technical evaluation and about the technical bids and in its report dated 17.10.98, Design Group found technical defects in the offers of SPML and Kirloskar Brothers Private Limited and these were pointed out in para 2.03.05 and 2.04.05 of the report. After this the Technical Committee submitted its own report on 2.11.98 and in Technical Committee Report in para 4 defects of the Petitioners were pointed out. In the course of this process, Work Advisory Board on 3.11.98 and 7.11.98 considered the Expert Report on the tender documents and decided not to open the financial bids (Envelop-B of both the Petitioners) and also decided to open financial bid in Envelope-B of other three tenderers and writ Petitioners were intimated of this decision and reasons for non opening of their financial bid on 18.11.98 . The Envelope-B containing their financial bids were returned to the Petitioners on 26.11.98. On 28.11.98 Envelope-B of the successful tenders in technical bids were opened for preparation of the comparative statement before negotiating their technical bids by the Government (Annexures-VI, VH, X, XII, XM and XIV respectively).
Mr Dutta, learned Counsel for the Respondent No. 7 refuting the allegation of non-eligibility of Respondent No. 7 has submitted that status papers by the Petitioner are apparently far from truth and misleading. Profile submitted by this Design Group with the Government shows that this Group has been engaged as consultancy Firm of the Writ Petitioner(SPML) for their project in South India, Mr. Pathak, learned Advocate General referring to Clause 2.10.1 and Clause 3.6.16 of the NIT has submitted that these Clauses provide that tenderer must give all tender specifications as mentioned in the Data Sheets of the tender documents Volume II and the tender are liable to be rejected for inadequacy of the information as per Data Sheets mentioned in the tender documents. In the report of Design Group, it is disclosed that Petitioner(SPML) failed to provide information required as per the Data Sheets of the tender document. Further, it is submitted that Petitioner (SPML) misled the court regarding SAIL pipe and attempt was made by the Petitioner to show that 4.06.4 mm outer diameter 10.3 Wall Thickness Pipes are not manufactured by SAIL, whereas much before issuance of the tender notice Respondent Government through its SAIL Head Office letter got it confirmed about the SAIL''s capability of manufacturing such pipes. It is further submitted that, likewise allegation against other successful tender as mentioned in the qualification status are baseless and false.
From this, I am of the view that this Court is not sitting to examine the qualification status of the respective parties as decided by the respective committees because this will amount to review the merit of the decisions of the Expert Committee. Apparently, Petitioners have not challenged such decision of the Expert Committee in the writ petitions. There is no allegation made in the writ petitions that Government exceeded its power of there is error in the decision making process. In absence of such challenge by the writ Petitioners, this Court cannot sit as an Appellate Authority on the merit of the decision of the Expert Committee constituted by the State Government.
Regarding the allegation of selection of unknown consultancy firm, namely, M/s Design Group, Bangalore, Mr Pathak, learned Advocate General submitted that expert assistance, as the Petitioner had, cannot be violative of the Article 14 of the Constitution. From the report of M/s Design Group it is seen that apparently the report is only advisory on the technical aspects of the tender. The Government did not adopt procedure of the evaluating of the technical bids of the different tenderers through different consultancy firms.
From the profile submitted before this Court it is pointed out by the learned Advocate General that even by letter dated 8.1.99 Petitioner SPML requested this Design Group to be their Consultancy Firm for Hole Project in Maharashtra 2nd whatever was intimated in the report of the said Design Group about the Petitioner (SPML) is only that Petitioner fails to provide necessary information as per Data Sheets of the tender documents Volume HA (Annexure-EX Profile of the Design Group, Annexure-VHI letter dated 8.1.99). The submission of Mr Panja, learned Counsel for the Petitioner that NIT did not lay down any procedure of examining tender by Consultancy Firm, is not sustainable on the ground that in the NIT procedure of Envelope-A and B has been clearly indicated and that if the Envelop-A containing technical bids of any tender is found successful only then he will be entitled to opening of the Envelope-B containing price bid. Therefore, as discussed above, as the writ Petitioners were found not eligible in the technical bid, their price bid were not opened. Further, taking expert assistance, as the Petitioner had, cannot be said to be violative of Article 14 of the Constitution because Expert Advice was sought for to arrive at a fair and reasonable decision and taking Expert Advice cannot affect the decision making process and to prejudice the interest of the wit Petitioners. It is open to the Government to follow the policy decision to call for the bids in two envelopes and also to take expert assistance as policy decision for evaluation of the technical bid. The view of this, court is supported by the decision of the Apex Court in Tata Iron and Steel Co. Ltd. etc. Vs. Union of India and others and Industrial Development Corporation of Orissa Ltd., wherein the Apex Court held thus:
Where legal issues are interwined with those involving determination of policy and a plethora of technical issues, such as in this case, courts of law have to be very waiy and must exercise their jurisdiction with circumspection for they must not transgress into the realm of policy.making unless the policy is inconsistent with the Constitution and the laws. From the scheme of the Act it is clear that the Central Government is vested with discretion to determine the policy regarding the grant or renewal of leases. On matters affecting policy and those that require technical expertise, the court should show deference to, and follow the recommendations of the Committee which is more qualified to address the issues. Therefore, the Central Government was justified in issuing its orders.
In a recent case in Raunaq International Limited Vs. I.V.R. Construction Ltd. and Others, the Apex Court held that when a writ petition is filed in the High Court challenging the award of a contract by a public authority or the state, the court must be satisfied that there is some element of publie interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by Court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the court not intervene under Article 226 in disputes between two rival tenderers.
Mr. Panja, learned Counsel for the Petitioner further argued that the Petitioner was the lowest bidder who offered Rs. 32.7 crores. It is further submitted that subsequently against the estimated cost of Rs. 32.7 crores Respondents No. 7,6 and 4 quoted about Rs 132.00 crores, Rs 165.00 crores and Rs 185.00 crores respectively and that bid is 4 to 5 times more than the estimated cost and that this cannot be considered for the purpose of awarding contract in public interest. Mr Panja has submitted that public interest is very much involved in this matter and Court should in such case ask the Respondents for re-tender. The learned Counsel for the Respondent No. 7 justified the offer of Respondent No. 7 at Rs. 132.00 crores against the estimated cost of Rs 32.7 crores as projected in the NIT on the ground that estimated cost indicated in the tender was based on the scheme which was prepared four years back and that from the date of finalisation Of the scheme to the date of completion of the project, it would take 9 years and, therefore, it cannot be said that the work will be completed in the estimated cost. The settled law is that the Government is entitled even to reject that lowest tender and has the right to select the best person on the basis of the price as determined by it. The rejection of higher and lower price in certain cases is also possible after giving reasons thereof (relied on the decision of the Apex Court in M/s Star Enterprises and Ors. v. City and Industrial Development Corporation of Maharashtra Ltd (1999) 3 SCC 280. I find that reasons for escalation of price at Rs. 132.00 crores is given by the Respondent authority and this Court in its Writ Jurisdiction is not in a position to give direction regarding this estimated cost of scheme, the cost of which is bound to escalate in view of the price rise etc. Fixation of cost due to escalation of price etc. is to be decided by the Government as it is within the jurisdiction of the Government to accept or not to accept the lowest price for the sake of public interest. The Government is not bound to change the price. Estimated cost in the NIT does not violate the basic trend of transparency of the price offered by the respective parties and it cannot prejudice the right and interest of the Petitioner. In such a matter duly recognised principle is that it cannot be said that such decision affects the decision making process. Apparently, the main grievance of the Petitioner is for not opening the Price BidinEnvelop- B and non furnishing of reasons for not opening the Price Bid. Apparently, technical defects, which are reasons for rejection of the technical bid, are already available from the record of the case produced before the court and also in the affidavit-in-opposition filed by the Government. The defects found by the Government are not denied by the Petitioner.
Petitioner further contend that hey were asked to extend the validity of their tender because technical bids were found technically feasible and on this conduct of the Respondent authority Petitioner had reasonable expectation to be selected in technical bid. Admittedly, there is dispute between the tenderers, as Petitioners claim themselves as best among all the five tenderers for the work. But from the eligibility criteria as found by the Tender Committee as well as by the Technical Committee and other materials on record and the documents submitted by the respective committees the competency of the Respondent No. 3 and others including Respondent No. 7 cannot be said to be lesser than the Petitioners. Respondent No. 7 has already completed the works in Searchip and Lunglai projects and operation has already been started to the satisfaction of the Government. Therefore, it cannot be said that Respondent No. 7 has no experience in such contract work. Out of five tenders, three tenders have been found suitable by the committees. In this ground the court cannot make a roving enquiry and submit its findings by interfering with the findings of the Technical Committee when procedure followed was by introducing Envelope-A and Envelope-B a procedure as a policy to evaluate eligibility in technical bid. The Court may not be taken as an expert body to take a different view on the findings of the Expert Committee until and unless there are procedural infirmity. In view of the above position, I am constrained to hold that procedural validity in selection by the committee are reasonable which ensure compliance of the Article 14 of the Constitution.
The Court in its anxiety to ensure public interest in such works require to examine whether any element of public interest involved in the litigation and the action of the authority in such decision making process may lead to wastage of public money and delay in work and escalation of price by accepting highest price bid. Learned Counsel for the Petitioner reiterating the highlighting the offer of highest bid has alleged that price bid offered by the Respondents are 4 to 6 times more than the estimated price of Rs. 32.07 crores as estimated in the NTT. It is further alleged that no viable range has been envisaged in the NIT giving a scope of escalation by the Respondent authority. Regarding question of viability range, the Writ Court cannot determine the range for execution of the project which is within the purview of the Expert Body constituted by the Government. The Respondent Government in their affidavit, based on the materials on record produced before this Court, shows that project cost in this Water Project was estimated as per cost index in 1994 and that the project is to be completed in 4 years from the date of allotment of the contract without any escalation in the price bid. Apparently, contract was allowed in 1999 giving scope of escalation of the project costs by the time it is completed, and such escalation in price fixed in 1994 is bound to go high in 1999 and technically be said that it is public interest or decision making process of the Government in giving the contract.
As submitted by the learned Advocate General, there are more than two lakhs of population in Aizawl town and the Government in the Public Health Engineering Department has been able to provide drinking water to 80,000 people at present; that against 6 million gallons of water required per day for the existing population the Government has provided only 2.4 million gallons per day with a short fall of 4 million gallons per day; that further delay in the project would cost irreparable loss, hardship to the people of Mizoram and this unwanted litigation has caused delay in the project process. It is alleged by the learned Advocate General that this petition has been filed against the public interest challenging the decision of the Technical Committee not to open the price bid of the Petitioners. Admitted position is. that no viable decision regarding contract has been taken yet. The process of allotment of the contract was indicated by opening the technical bid where Petitioners were found unsuccessful and the price bids have not been opened yet and stay order was passed by this Court not to proceed with opening of the Envelope-B, i.e. the price bid. Further, the Petitioners failed to challenge the decision of the Expert Committee in the writ petitions, and therefore, the prayer for granting mandamus upon price bid would be to set aside the findings of the Expert Committee and further there is no allegation that the Government while taking decision has either extended its term or there is error in law in the decision making process that not reasonable person would arrive at such a decision. Relied on AIR 1996 SCU (Supra). The Petitioner having failed in technical bid have no right to place argument at the financial bid as stated above and the Government has not arrived at or taking any decision in the financial bids quoted by the tenderers.
In the instant case, admittedly the Petitioners who failed to get themselves selected by the technical criteria have approached this Court for opening their price bid without succeeding in the technical bid which did not fulfil the requisite criteria of the NIT. They did not possess the prescribed experience and qualification. So far the claim of judicial relief in the instant case, the Petitioner who did not fulfil requisite criteria cannot claim relief. When a tenderer does not fulfil the requisite criteria itself his lowest price cannot be taken into consideration nor he can claim any consideration suggesting opening of the price bid in his favour.
The other allegation against the action of the Government, such as experience of Respondent No. 7 who even did not show income tax etc. as required under NIT, in my opinion, evaluation of criteria by Respondent No. 4 to 7 and computing of the high price against the estimated price of the NIT, cannot be taken as grounds which effect the decision making process of the concerned authority. From the materials on record and documents submitted before this Court the allegation has no leg to stand.
In the backdrop of the above facts and circumstances of the case, the selection of the Respondent-tenderer by the Technical Committee satisfies that the action is clear and reasonable. This issue has already been discussed above and the findings of the Technical Committee was made as per the policy matter as enunciated in the NIT and, therefore, the process taken therein by the Technical Body cannot be questioned by this Court and take a different view giving its own view as an Appellate Court. It cannot be said that Technical Committee did not act in conformity with the procedure as enunciated in the NIT. In my opinion there is no violation of Article 14 and if the public body tries to get the best person for completing the contract. The action of the Technical Committee cannot be construed as arbitrary power warranting judicial review in such administrative matter. Therefore, to find out the right place between the administrative discretion to decide the matter and fairness in the decision of judicial review is not an error in the merit of decision making process itself and this Court in its discretion already approved and held that there is no infirmity in the decision making process regarding technical viability of the tender. When the Petitioners were not found suitable by the Technical Committee it cannot claim that Technical Committee was wrong in no choosing the Petitioner as best experienced, competent persons in the field having carried out the similar works in respect of other Water Supply contract in the past under the Government of Mizoram.
In the facts and circumstances of the case I hold that present petitions are not sustainable and accordingly dismissed. The interim orders dated 27.11.98 and 3.12.98 passed in Civil Rule No. 6011/98 are accordingly vacated.
The learned Advocate General submits that this litigation caused delay in the process of works which affect the public interest and also affect price escalation and, therefore, adequate costs be awarded. However, considering the facts and circumstances I direct the parties to bear their own costs.
The writ petitions are accordingly rejected. Stay order passed on 27.11.98 and 3.12.98 is vacated.