Himachal Pradesh High Court
Bhupinder Paul Mahajan vs State Of Himachal Pradesh And Others on 28 August, 2019
Bench: V .Ramasubramanian, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPs No. 1303 & 1431 of 2019 .
Reserved on: 22.08.2019 Decided on: 28.08.2019 CWPs No. 1303 & 1431 of 2019 Bhupinder Paul Mahajan ...Petitioner(s) Versus State of Himachal Pradesh and others ...Respondents Coram The Hon'ble Mr. Justice V. Ramasubramanian, Chief Justice.
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 Yes.
For the petitioner(s): Mr. Shrawan Dogra, Senior Advocate, with Ms. Nishi Goel and Mr. Deven Khanna, Advocates.
For the respondents: Mr. Ashok Sharma, Advocate General, with M/s. J.K. Verma, Ranjan Sharma, Adarsh K. Sharma, Ritta Goswami, Ashwani K. Sharma and Nand Lal Thakur, Additional Advocates General, for respondents No. 1 to 4 in both the writ petitions.
Mr. Sanjeev Kuthiala, Senior Advocate, with Mr. Hitesh Thakur, Advocate, for respondent No. 5 in CWP No. 1303 of 2019.
Mr. Vivek Singh Attri, Advocate, for respondent No. 5 in CWP No. 1431 of 2019.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 02:46:45 :::HCHP 2V. Ramasubramanian, Chief Justice.
Challenging the disqualification of the technical bids of .
the petitioner as nonresponsive and seeking consequential directions, a person registered as a ClassA Contractor with the Himachal Pradesh Public Works Department, has come up with the above writ petitions.
2. We have heard Mr. Shrawan Dogra, learned Senior Counsel appearing for the petitioner in both the writ petitions, Mr. Ashok Sharma, learned Advocate General appearing for respondents No. 1 to 4 in both the writ petitions, Mr. Sanjeev Kuthiala, learned Senior Counsel appearing for the fifth respondent in one writ petition and Mr. Vivek Singh Attri, learned counsel appearing for the fifth respondent in another writ petition.
Facts in CWP No. 1303 of 20193. The fourth respondent herein invited bids online, through an Invitation dated 09.04.2019 for the execution of a work titled as "Upgradation of T06Ambla Galoo to Gadiatar road Km. 0/0 to 14/600 under PMGSY (World Bank RRPII) BatchI, 201819, Complete Stage, District Mandi (H.P.) (SH:Metalling ::: Downloaded on - 29/09/2019 02:46:45 :::HCHP 3 and Tarring, Missing R/walls, B/walls, Gabion walls, Missing C.D. works, Vshape drain, Parapets, Logo Boards and five .
years routine maintenance) Package No. HP08500".
4. The work stated above, was under the Rural Road Project II, under the Pradhan Mantri Gram Sadak Yojna Scheme.
Therefore, the bid document was in a standard format, which is in use for World Bank financed contracts.
5. The timeline indicated in the bidding document was that
(i) the bidding document will be available in the website from 12.04.2019 to 09.05.2019; (ii) the deadline for receiving bids online was 09.05.2019 at 1030 hours; and (iii) the time and date for opening of Part 1 of the bid (Technical Qualification) was 09.05.2019 at 1100 hours.
6. According to the petitioner, he submitted his bid in response to the aforesaid Invitation, on 09.05.2019 at 7.01 a.m. The bids were evaluated by the Evaluation Committee on 17.05.2019. The Committee concluded that the bid submitted by the petitioner was nonresponsive as per Clause 4.4A(b) of the Invitation to Bid.
::: Downloaded on - 29/09/2019 02:46:45 :::HCHP 47. Aggrieved by the conclusion reached by the Evaluation Committee, the petitioner made a representation on .
18.05.2019 to the fourth respondent. It was forwarded to the third respondent. The third respondent forwarded the same to a Committee constituted by way of Complaint Handling Mechanism. In a meeting held on 07.06.2019, the said Committee rejected the representation of the petitioner and the proceedings of the meeting of the Committee were forwarded by the Chief Engineer (R3) to the fourth respondent by a communication dated 10.06.2019, eventually to be served upon the petitioner.
8. Therefore, challenging the Bid Evaluation Report dated 09.05.2019 and seeking a direction to the respondents to consider the works already executed by him as original works and not maintenance contracts, the petitioner has come up with the writ petition CWP No. 1303 of 2019.
Facts in CWP No. 1431 of 2019:
9. The fourth respondent herein invited bids online, through an Invitation dated 17.04.2019 for the execution of a work titled as "Upgradation of L104NH Dhanotu to Rohan Galloo ::: Downloaded on - 29/09/2019 02:46:45 :::HCHP 5 road (VR0001) Km. 0/0 to 32/400 under PMGSY (World Bank RRPII) BatchI, 201819, Complete Stage, District Mandi .
(H.P.) (SH:Provinding and laying M/T, R/wall, B/wall, Mising C.D. works, Vshape side drain, Essential Parapets, Crash Barrier, Logo Board and Routine Maintenance of Five year in Km. 0/0 to 32/400)) Package No. HP08484".
10. The work stated above, was under the Rural Road Project II, under the Pradhan Mantri Gram Sadak Yojna Scheme.
Therefore, the bid document was in a standard format, which is in use for World Bank financed contracts.
11. The timeline indicated in the bidding document was that
(i) the bidding document will be available in the website from 23.04.2019 to 23.05.2019; (ii) the deadline for receiving bids online was 23.05.2019 on 1030 hours; and (iii) the time and date for opening of Part 1 of the bid (Technical Qualification) was 23.05.2019 at 1100 hours.
12. According to the petitioner, he submitted his bid in response to the aforesaid Invitation, on 29.05.2019 at 9.12 a.m. The bids were evaluated by the Evaluation Committee on 16.06.2019. The Committee concluded that the bid submitted ::: Downloaded on - 29/09/2019 02:46:45 :::HCHP 6 by the petitioner was nonresponsive as per Clause 4.4A(b) of the Invitation to Bid.
.
13. Aggrieved by the conclusion reached by the Evaluation Committee, the petitioner made a representation on 16.06.2019 to the fourth respondent, which was forwarded to the third respondent. The third respondent forwarded the same to a Committee constituted by way of a Complaint Handling Mechanism. In a meeting held on 24.06.2019, the said Committee rejected the representation of the petitioner and the proceedings of the meeting of the Committee were forwarded by the Chief Engineer (R3) to the fourth respondent by a communication made on the same day, eventually to be served upon the petitioner.
14. Therefore, challenging the Bid Evaluation Report dated 16.06.2019 and seeking a direction to the respondents to consider the works already executed by him as original works and not maintenance contracts, the petitioner has come up with the second writ petition in CWP No. 1431 of 2019.
15. Since the parties to the dispute in both the writ petitions are one and the same and also since the subject matters of the ::: Downloaded on - 29/09/2019 02:46:45 :::HCHP 7 dispute, though relating to two different contracts, have a common genesis with the same or similar grounds of challenge .
and reliefs sought, the writ petitions were taken up together for disposal.
Ground of rejection of the technical bids
16. The only ground on which the technical bids submitted by the petitioner in response to the two Invitations to Bid were rejected, is that he did not satisfy the requirement stipulated in Clause 4.4A(b). It reads as follows:
"4.4 A. To qualify for award of the Contract, each bidder should have in the last five years (5 years immediately preceding the year, in which the bids are invited, year means financial year);
(a) .............
(b) satisfactorily completed, as prime contractor or sub contractor, at least one similar work equal in value half of the estimated cost of work (excluding maintenance cost for five years) for which the bid is invited."
17. The brief reasons for rejection stated in the Bid Evaluation Reports are as follows:
In CWP No. 1303 of 2019:
"NonResponsive as per ITB clause 4.4A(b) which states that to qualify for award of contract, each bidder should have in the last five years (5 years immediately preceding the year, in which the bids are invited, year means financial year) satisfactorily completed, as prime contractor or sub contractor, at least one similar work ::: Downloaded on - 29/09/2019 02:46:45 :::HCHP 8 equal in value half of the estimated cost of work (excluding maintenance cost for five years) for which the bid is invited.
.
But the bidder has uploaded/submitted similar work which is less as per requirement as mentioned in Bid Data Sheet."
In CWP No. 1431 of 2019:
"NonResponsive as per ITB clause 4.4A(b) which states that to qualify for award of contract, each bidder should have in the last five years (5 years immediately preceding the year, in which the bids are invited, year means financial year) satisfactorily completed, as prime contractor or sub contractor, at least one similar work equal in value half of the estimated cost of work (excluding maintenance cost for five years) for which the bid is invited.
The bidder has uploaded details of work done for the last five years i.e. from year 201314 to 201718 as required under clause 1.3.1 of section3 in which he has enlisted 8 No. of works but he has uploaded work done certificate only for work appearing at Sr. No. 8 which is work done certificate for Output Performance Based Road Contract for Maintenance of particular road for full five years and still in progress hence doesn't qualify the criteria stipulated, being work not completed and is only maintenance work"
Stand of the petitioner
18. According to the petitioner, he satisfies Clause 4.4A(b), as he had completed at least one similar work in value, half of the estimated cost of work (excluding maintenance cost for five years) for which the bids were invited. In order to test the correctness of his claim, it is necessary to see the "Work Done ::: Downloaded on - 29/09/2019 02:46:45 :::HCHP 9 Detail" submitted by the petitioner himself for the last five years, under the Heading "Experience to be considered of .
similar type of work". This "Work Done Detail" as given by the petitioner in a tabulation, is as follows:
Project Name Name of Contract Schedule Awarded Schedule Completed Remarks & Actual the No. of Works Amount of Works Amount construction Date of employer (Rs. (Rs. work completion Crores) Crores) completed on with dated maintenance OPRC for the Chief OPRC - IR 5.86 IR 6.04 Completed on maintenance Engineer 02 for Crore Crore dt. 04092015 of Package 02 (Mandi 201415 MI 3.19 MI 3.29 Completed on
- Road in Zone) HP Crore Crore dt. 04122015 Mandi District of H.P. PWD Mandi, r PM 13.54 PM 13.85 Completed on 05122019 (Shimla Distt. Crore Crore dt. 04052018 Mandi Road Mandi OM 12.35 OM 9.41 Work In Via Tattapani (HP) Crore Crore Progress (From Tattapani to EW 3.39 EW 3.77 Completed Dadour) Crore Crore 38.33 Total 36.36 Total Awarded Amount: Crore Completed Crore Amount: All component i.e. construction part is complete as per above detail except ordinary maintenance.
19. The acronyms used in Column No. 6 of the above tabulation stand for:
IR - Initial Rectification Works MI - Minor Improvement Works PM - Periodic Maintenance Works OM - Ordinary Maintenance Works EW - Emergency Works ::: Downloaded on - 29/09/2019 02:46:45 :::HCHP 10
20. Apart from the work that the petitioner indicated in the above table, the petitioner also furnished another statement .
containing "Work Done Detail" in respect of another Project, but the same was not within a period of five years immediately preceding the year in which the bids are invited. Therefore, we are not concerned with the same. Even the arguments of the learned Senior Counsel for the petitioner revolved only around the work as indicated in the above table.
21. According to the petitioner, the total estimated cost of the work in respect of which CWP No. 1303 of 2019 is filed, was ₹ 750.29 Lacs for construction and ₹ 69.77 Lacs towards maintenance. Similarly, the total estimated cost of work in respect of the contract that forms the subject matter of CWP No. 1431 of 2019 was ₹ 1321.98 Lacs towards construction and ₹ 154.84 towards maintenance.
22. Therefore, for the satisfactory fulfillment of the prescription contained in Clause 4.4A(b), a bidder was required to have completed a similar work whose value was not less than around ₹ 375 Lacs, if the maintenance portion is not taken into account or around ₹ 410 Lacs, if the portion ::: Downloaded on - 29/09/2019 02:46:45 :::HCHP 11 relating to maintenance is also taken into account. This is in respect of the contract relating to the first writ petition.
.
23. In respect of the contract which is the subject matter of the second writ petition, the petitioner should have satisfactorily completed at least one similar work whose value is around ₹ 661 Lacs, if the portion relating to maintenance is not included and around ₹ 737 Lacs, if the portion relating to maintenance is included.
24. The case of the petitioner is that the OPRC Contract for the maintenance of Package 02 Road in Mandi District, which he cited as a similar type of work satisfactorily completed, was for a total estimated cost of ₹ 38.33 Crores. Out of this, the petitioner has already completed satisfactorily, all items such as IR, MI, PM and EW and that insofar as the item relating to OM is concerned, the work is in progress, he having completed the same to the value of ₹ 9.41 Crores. It is the case of the petitioner that even if the items relating to Periodic Maintenance (PM) Work already completed on 04.05.2018 to the value of ₹ 13.85 Crores and Ordinary Maintenance (OM) Work, partly completed to the value of ₹ 9.41 Crores is ::: Downloaded on - 29/09/2019 02:46:45 :::HCHP 12 excluded from the value of the work already completed, he could be seen to have completed satisfactorily a similar type of .
work of the value of more than ₹ 12 Crores and that therefore, by any stretch of imagination, his technical bid could not be held to be nonresponsive, in relation to the contract which forms the subject matter of the first writ petition. The same is the argument in respect of the contract which forms the subject matter of the second writ petition.
25. As stated already, the reason for the rejection of the technical bid of the petitioner, as per the Bid Evaluation Report, was that he did not fulfill the stipulation contained in Clause 4.4A(b). After the petitioner gave a representation and the same was placed before the Complaint Handling Mechanism Committee, the Committee gave elaborate reasons. The relevant portion of the minutes of the meeting of the Complaint Handling Mechanism Committee dated 07.06.2019 are as follows:
"The committee has observed that bidder Sh. Bhupinder Paul Mahajan has uploaded details of work done for last five years i.e. from year 201314 to 201718 as required under clause 1.3.1 of section3 in which he has enlisted 8 Nos. of works but he has uploaded work done certificates ::: Downloaded on - 29/09/2019 02:46:45 :::HCHP 13 only for four Nos. of works appearing at S. No. 1, 4, 7 and
8 of this list. The committee observed that Work Done Certificate for work at Sr. No. 1 has been completed in the year 201213, which doesn't qualify as it has been .
completed prior to year 201314 i.e. beyond the last five years period i.e. 201314 to 201718. The work at Sr. No. 4 has been completed between last five years period i.e. 2013 14 to 201718 but the completion cost of this work is less than the half of the estimated cost of the work put to tender i.e. Rs. 375.15 lacs (50% of total estimated cost of Rs. 750.29 lacs of the work put to tender) as per requirement under this clause which is clearly mentioned in bid data sheet of SBD against clause 4.4 A (b) at page 29. The work at Sr. No. 7 has been completed between last five years period i.e. 201314 to 201718 but the work is for stageI construction and doesn't qualify under similar work as the present work is for stageII construction. The work Done Certificate for the work at Sr. No. 8 is for Output Performance Based Road Contract for Maintenance of a particular road for full five years and still in progress hence doesn't qualify the criteria stipulated, being work not completed and is only maintenance work."
26. It is seen from the reasons stated above that the Work Done Detail in relation to one particular contract OPRC (Output Performance based Road Contract) submitted by the petitioner, whose tabulation we have already extracted earlier, alone qualified for consideration. The petitioner does not question the other parts of the minutes of the meeting of the Committee.
27. In relation to Work Done Certificate at Sr. No. 8 mentioned in the minutes of the Complaint Handling ::: Downloaded on - 29/09/2019 02:46:45 :::HCHP 14 Mechanism Committee, the objections of the Committee were two fold, namely: (i) that the work carried out by the petitioner .
was only for maintenance and not for a similar work namely original work; and (ii) that in any case, the work is not fully completed till date. Thus, there are two grounds on which the Committee had decided to reject the claim of the petitioner.
The first is that the work relied upon by the petitioner was of maintenance work and not similar type of work. The second is that in any case, the work is not a satisfactorily completed work. Clause 4.4A(b) mandates two conditions to be satisfied, namely: (i) satisfactory completion, and (ii) of similar type of work.
Grounds raised in the writ petitions and the response of the respondents
28. In the above background of facts, the grounds on which the petitioner challenges the rejection of his technical bid are:
(i) that in respect of another work for Mandi Division, the petitioner was held qualified on the basis of similar facts; (ii) that in respect of another item of work in Shimla also, the petitioner was held qualified; (iii) that the interpretation given ::: Downloaded on - 29/09/2019 02:46:45 :::HCHP 15 by World Bank to OPRC Contracts (Output Performance based Road Contract), as per their Standard Procurement Document .
was that these contracts are original works and hence the Work Done Detail relied upon by the petitioner at Sr. No. 8 was actually an original contract; (iv) that in a previous round of litigation relating to another contract, the petitioner approached this Court, which eventually resulted in the Chief Engineer (Mandi Division) seeking a clarification from the EngineerinChief to constitute an independent Committee to decide and give fair advice whether OPMC (Output Performance based Road Contract) is a construction contract for original work or a maintenance contract and that the EngineerinChief, issued a clarification on 15.05.2019 advising the Chief Engineer to include a particular clause that would clarify the position; and (v) that the Complaints Handling Mechanism Committee which decided to reject the representation of the petitioner on 07.06.2019 comprised of the very same members as the Evaluation Committee, making it a case of an appeal from Caesar to Caesar and that therefore, the impugned rejection should be set aside.
::: Downloaded on - 29/09/2019 02:46:45 :::HCHP 1629. In response, it is argued by the learned Advocate General:
(i) that once an Expert Committee constituted for the redressal .
of complaints has come to the conclusion that the nature of the work already carried out by the petitioner was not an original work but a maintenance work and also that the same was not satisfactorily completed but was in progress, the scope of judicial review gets narrowed down; (ii) that even by the petitioner's own admission, what was carried out by him earlier was only a maintenance contract for Package 02 and the same was also incomplete; and (iii) that even assuming without admitting that the petitioner was declared eligible in respect of another contract on the basis of same facts, the same cannot make the petitioner qualified, especially when a judicial review is sought. It is also contended by the learned Advocate General that the contracts floated by the respondents fall under different categories and that the contract already awarded to the petitioner was under the CRF (Central Road Fund) and that therefore, the same yardstick cannot be applied to a contract under the PMGSY (Pradhan Mantri Gram Sadak Yojna).
::: Downloaded on - 29/09/2019 02:46:45 :::HCHP 1730. Mr. Sanjeev Kuthiala, learned Senior Counsel appearing for the fifth respondent in one case and Mr. Vivek Singh Attri, .
learned counsel appearing for the fifth respondent in another case, also invited our attention to the fact that the Work Done Detail given by the petitioner at Sr. No. 8 was in relation to a contract whose work was in progress and hence, the most primary condition of satisfactory completion of work was not there.
31. We have carefully considered the rival contentions.
Discussion and Analysis
32. The first two grounds on which the petitioner challenges the rejection of his technical bids are that in respect of certain works in Mandi and Shimla, he has been held qualified on the very same parameters and that therefore, the respondents cannot adopt two different standards. Reliance is placed in this regard, by Mr. Shrawan Dogra, learned Senior Counsel for the petitioner, on the proceedings of the Evaluation Committee held on 06.08.2018 in respect of the work of "Improvement and Strengthening of PandohKanda Road Km. 0/0 to 24/0 om CRF". Column No. 17 of the Report of the Evaluation ::: Downloaded on - 29/09/2019 02:46:45 :::HCHP 18 Committee dated 06.08.2018 in relation to the said work shows that what the petitioner relied upon in the said contract was .
OPBRC Package 02, ShimlaMandi Via Tattapani, work in progress and the same was held by the Committee comprising of six persons including two Executive Engineers, a Deputy Controller, two Superintending Engineers and one Chief Engineer to meet the qualification criteria. Therefore, it is contended by the learned Senior Counsel for the petitioner that what is sauce for the goose is sauce for the gander.
33. But as rightly contended by the learned Advocate General, the said contract was for the improvement and strengthening of a road under the Central Road Fund Scheme, while the contract in question is under the Pradhan Mantri Gram Sadak Yojna. Different schemes, obviously encompass different parameters and it is not the task of the Courts to sit in appeal over the evaluation done by a Committee of Engineers.
34. Even assuming without admitting that the petitioner's technical bid was held qualified in respect of another contract, the same cannot preclude the respondents from applying the ::: Downloaded on - 29/09/2019 02:46:45 :::HCHP 19 terms and conditions contained in the bid document in this case. We cannot apply the logic "once qualified always .
qualified". Therefore, the first two grounds of attack are liable to be rejected.
35. The third ground of attack to the impugned rejection is that the interpretation given by World Bank to OPRC Contracts (Output Performance based Road Contract), as per their Standard Procurement Document was that these contracts are original works and hence the Work Done Detail relied upon by the petitioner at Sr. No. 8 was actually an original contract.
36. What is relied upon by the learned Senior Counsel for the petitioner in this regard is a "Sample Bidding Document -
Request for Bids - Works - Roads (Output and Performance Based Road Contracts - OPBRC)".
37. But the above document is filed for the first time after completion of pleadings, through a Miscellaneous Petition in CMP No. 7977 of 2019 in CWP No. 1303 of 2019. In any case, this is a document which appears to have been downloaded from the website of "PublicPrivatePartnership Legal ::: Downloaded on - 29/09/2019 02:46:45 :::HCHP 20 Resource Center", whose authenticity is not known. Moreover, the publication is indicated to be of January, 2017. As the .
heading suggests, it is only a Standard Procurement Document made available, purportedly by World Bank to be used by anyone. Whatever is contained in the said document cannot be equated either to Ramanatha Aiyar's Law Lexicon or Blacks'Law Dictionary. It is also not necessary that whatever is contained in the said document was required to be adopted as such.
38. In fact, the caption given to the details furnished in the said document reads as follows:
"Foreword and Notes to the Users of this SPD"
Therefore, we cannot rely upon the said document to come to the conclusion that OPBRC is a contract for original construction and not for maintenance.
39. The next ground of attack to the impugned rejection is that in a previous round of litigation relating to another contract, the petitioner approached this Court, which eventually resulted in the Chief Engineer (Mandi Division) requesting the EngineerinChief to constitute an independent ::: Downloaded on - 29/09/2019 02:46:45 :::HCHP 21 Committee to decide and give fair advice whether OPMC (Output Performance based Road Contract) is a construction .
contract for original work or a maintenance contract and that the EngineerinChief, issued a clarification on 15.05.2019 advising the Chief Engineer to include a particular clause that would clarify the position.
40. It is true that when another tender was floated in January/February, 2019 under the Central Road Fund Scheme for the improvement and strengthening of Thalout - Thachi -
Somgad Road, the technical bid of the very same petitioner was held disqualified, forcing him to come up with a writ petition in CWP No. 384 of 2019. When the writ petition came up for hearing, the respondents offered to recall the tender and issue a retender. Before the issue of the retender, the Chief Engineer (Mandi Zone), by his letter dated 30.04.2019, requested the EngineerinChief to constitute an independent Committee to decide and give fair advice whether OPBMC is a construction contract for original work or a contract for maintenance work. The EngineerinChief, through his reply dated 15.05.2019, advised the Chief Engineer that Clause ::: Downloaded on - 29/09/2019 02:46:45 :::HCHP 22 4.5.3(b) of the bid document (involved in that case) could be amended suitably to include one more line for the purpose of .
avoiding ambiguity. The sentence sought to be included in Clause 4.5.3(b) read as follows:
"However it shall not include the work contracts of maintenance of roads, OPBMC executed by the applicant/bidder and only original road construction work contracts shall include as experience."
41. On the basis of the previous litigation and the advice sought by the Chief Engineer and the clarification issued by the EngineerinChief, it is contended by Mr. Shrawan Dogra, learned Senior Counsel for the petitioner, that when admittedly there was an ambiguity, the benefit should go to the petitioner and that without the incorporation of such a clause in the present Invitation to Bid, the respondents were not entitled to disqualify the petitioner.
42. But we are unable to accept the said contention. The very fact that the EngineerinChief, who is the Head of the Department had taken a stand even in respect of another contract that OPBMC cannot be considered as an original construction contract, would show that the respondents were ::: Downloaded on - 29/09/2019 02:46:45 :::HCHP 23 clear in their mind, if not in their language. It is not within the domain of the Courts to interpret the terms of the contract, .
except in cases where disputes have arisen after the completion of the contract or at least during the course of execution of the contract. This is for the reason that when the execution of the contract is in progress or after it is completed, the disputes would lie in the realm of mutual rights and obligations and the discharge of those obligations.
43. The power of judicial scrutiny in the matter of interpretation of contracts, has to be exercised very sparingly in cases where a contract is yet to be borne and it is at the stage of Invitation to Offer. The State or any other institution floating an Invitation to Offer is entitled to interpret its requirements in a particular manner and at that stage, the Courts cannot poke their nose.
44. From the letter of clarification issued by the Chief Engineer, Mandi on 30.04.2019 and the advice given by the EngineerinChief on 15.05.2019, it is clear that the official respondents never considered the OPBMC contracts to be original construction contracts. Once they have made it clear ::: Downloaded on - 29/09/2019 02:46:46 :::HCHP 24 in respect of another contract which became the subject matter of litigation, the official respondents are entitled to stick on to .
the very same interpretation in respect of the contracts, which are the subject matters of both the present writ petitions.
Therefore, more than advancing the cause of the petitioner, these documents actually advance the case of the official respondents. Hence, the fourth ground of attack is also to be rejected.
45. The fifth ground of attack to the impugned rejection is that the Complaints Handling Mechanism Committee which decided to reject the representation of the petitioner on 07.06.2019 comprised of the very same members as the Evaluation Committee, making it a case of an appeal from Caesar to Caesar and that therefore, the impugned rejection should be set aside.
46. But it is seen from the Bid Evaluation Report dated 17.05.2019, which rejected the technical bid of the petitioner that the Committee comprised of (i) Sh. Ramesh Bodh, Divisional Accounts Officer; (ii) Sh. Pradeep Singh Thakur, Executive Engineer (Mandi Division); (iii) Sh. Jagesh Vaidya, ::: Downloaded on - 29/09/2019 02:46:46 :::HCHP 25 Executive Engineer (Design); and (iv) Sh. Kartar Chand, Superintending Engineer. However, the Complaints Handling .
Mechanism Committee comprised of (i) Sh. Ram Lal Chauhan, Superintendent GrI (CTR); (ii) Sh. Paras Ram Chauhan, Deputy Controller (F&A); (iii) Sh. Pradeep Singh Thakur, Executive Engineer (Mandi Division); (iv) Sh. Anil Parmar, Executive Engineer (Design), (v) Sh. Kartar Chand, Superintending Engineer; and (vi) Sh. Prakash Chand, Superintending Engineer (D&W). Therefore, it is not a case of appeal from Caesar to Caesar nor is it a case of appeal from Caesar to Brutus.
47. The alternative argument of the learned Senior Counsel for the petitioner is that in respect of the contract for Improvement and Strengthening of Pandoh Kandha Road, an Evaluation Committee comprising of (i) Sh. K.K. Kaushal, Executive Engineer; (ii) Sh. Paras Ram Chauhan, Deputy Controller (F&A); (iii) Sh. Anil Parmar, Executive Engineer (D); (iv) Sh. Kartar Chand, Superintending Engineer; (v) Sh.
Lalit Bhushan, Superintending Engineer; and (vi) Sh. K.S. Thakur, Chief Engineer (MZ), submitted a report on ::: Downloaded on - 29/09/2019 02:46:46 :::HCHP 26 06.08.2018 holding in Column No. 17 thereof, the very same OPBRC to be an original work and that the Complaints .
Handling Mechanism Committee, which rejected the representation of the petitioner also comprised of most of the members of the very same Committee.
48. It is true that four members of the Evaluation Committee of the 2018 Contract also happened to be the members of the Complaints Handling Mechanism Committee in the case on hand. But it does not mean that what was omitted to be taken note of in the previous case should never be taken note of.
Once the respondents have taken a stand that two different interpretations are possible for two different Schemes (one under CRF and another under PMGSY), it is not possible for this Court to act as Maxwell. Therefore, none of the grounds of attack to the impugned rejection merit acceptance.
49. Relying upon the decision of the Supreme Court in Union of India vs. G. Ganayutham {(1997) 7 SCC 463}, it is contended by Mr. Shrawan Dogra, learned Senior Counsel for the petitioner, that every administrative action should pass the test of reasonableness propounded by Lord Greene in ::: Downloaded on - 29/09/2019 02:46:46 :::HCHP 27 Associated Provincial Picture Houses Ltd. vs. Wednesbury Corpn. {(1948) 1 KB 223}, which has also been .
followed in India in several cases. It is the contention of the learned Senior Counsel for the petitioner that the impugned rejection, will not pass the test of Wednesbury reasonableness.
50. But our answer to the said contention would be two fold.
The first is that
even according to Professor
"Wednesbury principle is on the terminal decline". The second r Wade, is that to interfere with the decision of the administrator, the decision of the Administrative Authority should be so unreasonable and absurd that no sensible or reasonable person could have come to such a conclusion. Therefore, we do not think that the aforesaid decision is of any assistance to the petitioner.
51. The learned Senior Counsel for the petitioner also relies upon an unreported decision of this Court in Ashok Chauhan vs. State of Himachal Pradesh, decided on 26.05.2017 in CWP No. 880 of 2017. But the dispute involved in the said case was as to whether a person who had executed some works ::: Downloaded on - 29/09/2019 02:46:46 :::HCHP 28 for a Public Sector Undertaking as a subcontractor and some works for a Private Enterprise as a contractor, was qualified in .
terms of the clauses contained in the bidding document. The Court found that there was no specific clause in the tender document that the work experience gained under a private party should not be looked into. Therefore, it is clear that the said decision arose under completely different circumstances and it cannot be of any help to the petitioner.
52. Courts have always distinguished various types of Government contracts from each other and adopted different parameters for testing the administrative action in relation to such contracts. Courts have also applied different parameters while dealing with challenges to tender processes and challenges to the blacklisting of contractors in the course of execution of contracts or in the course of grant of State largesse. The position is summarized by the Supreme Court in para 22 of the report in Jagdish Mandal vs. State of Orissa, {(2007) 14 SCC 517}, as follows:
"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to ::: Downloaded on - 29/09/2019 02:46:46 :::HCHP 29 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.
::: Downloaded on - 29/09/2019 02:46:46 :::HCHP 30If the answers are in the negative, there should be no interference under Article 226. Cases involving black listing or imposition of penal consequences on a tendered/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."
53. As we have pointed out earlier, the very document relied upon by the petitioner shows that the EngineerinChief, the Head of the Department, understood the contents of the document in a particular manner. This understanding of the author of the document has to be respected, as held by the Supreme Court in Caretel Infotech Ltd. vs. Hindustan Petroleum Corporation Limited, (2019 SCC OnLine SC
494), the relevant portion of which is as follows:
"39. In Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited, this Court has expounded further on this aspect, while observing that the decision making process in accepting or rejecting the bid should not be interfered with. Interference is permissible only if the decision making process is arbitrary or irrational to an extent that no responsible authority, acting reasonably and in accordance with law, could have reached such a decision. It has been cautioned that Constitutional Courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute their view for that of the administrative authority. Mere disagreement with the decision making process would not suffice.::: Downloaded on - 29/09/2019 02:46:46 :::HCHP 31
40. Another aspect emphasised is that the author of the document is the best person to understand and appreciate its requirements......."
.
54. The role of the Court in such cases was aptly summed up by the Supreme Court in The Silppi Constructions Contractors vs. Union of India, (2019 Lawsuit (SC) 1386) as follows:
19. This Court being the guardian of fundamental rights is duty bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court in all the aforesaid decisions has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clearcut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The Courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give "fair play in the joints" to the government and public sector undertakings in matters of contract. Courts must ::: Downloaded on - 29/09/2019 02:46:46 :::HCHP 32 also not interfere where such interference will cause unnecessary loss to the public exchequer.
20. The essence of the law laid down in the judgments .
referred to above is the exercise of restraint and caution;
the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case."
55. In view of the above, we find that the rejection of the technical bids of the petitioner was neither arbitrary nor unreasonable nor mala fide and that therefore, the writ petitions deserve to be dismissed. Accordingly, they are dismissed, so also the pending miscellaneous applications, if any.
(V. Ramasubramanian) Chief Justice (Anoop Chitkara) Judge August 28, 2019 ( rajni ) ::: Downloaded on - 29/09/2019 02:46:46 :::HCHP