Allahabad High Court
M/S Am Infratech Proprietorship Firm vs Dfccil And 2 Others on 12 August, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:130354-DB Court No. - 40 A.F.R. Case :- WRIT - C No. - 22299 of 2024 Petitioner :- M/S Am Infratech Proprietorship Firm Respondent :- Dfccil And 2 Others Counsel for Petitioner :- Manu Khare Counsel for Respondent :- Vaibhav Tripathi Hon'ble Shekhar B. Saraf,J.
Hon'ble Kshitij Shailendra,J.
1. Vakalatnama filed by Shri Ashish Mishra on behalf of respondent No. 3 is taken on record.
2. Heard Shri Manu Khare appearing on behalf of the petitioner, Shri Vaibhav Tripathi on behalf of respondent Nos. 1 and 2 and Shri Ashish Mishra, on behalf of respondent No. 3.
3. This is an application under Article 226 of Constitution of India, wherein the petitioner is aggrieved by rejection of its technical bid by the respondents vide order dated June 12, 2024. Subsequent to filing of the writ petition, the petitioner was also provided with a letter dated July 25, 2024 whereby the appeal against the rejection of its tender was also rejected. The relevant part of the order is delineated below:
"As per clause 1.3.12 (page no. 24 of 344) of tender document, Right of DFCCIL to Deal with Tenders:- 1.3.12(b): "The authority for the acceptance of the tender will rest with the DFCCIL. It shall not be obligatory on the said authority to accept the lowest tender or any other tender and no tenderer(s) shall demand any explanation for the cause of rejection this/their tender nor the DFCCIL undertake to assign reasons for declining to consider or reject any particular tender or tenders".
In the view of above, DFCCIL is not bound to give detailed explanation about rejection of tenderers. However, considering importance of your firm and better future prospect of your firm, sincerity and better transparency, your satisfaction, unersigned would like to inform that, your offer did not had offer letter complete i.e. form-1 as per para 1.3.2(b) nor having any supporting document regarding experience to carryout electrical work in terms of clause 1.5.2 of tender document.
Hence, your offer was not found in order as per tender conditions for above floated tender & accordingly your offer was rejected by DFCCIL. Your EMD is going to returned shortly.
This is for kind information please."
4. Counsel on behalf of the petitioner has submitted that as per Clause 1.5.2 of the tender documents, it was required only to provide the name of the Associate Electrical Contractor and was not required to provide the legally enforceable agreement duly signed by the Associate Electrical Contractor nor was it required to provide the experience of the Associate Electrical Contractor at the time of submission of the same. This argument has been negated by counsel appearing on behalf of the respondent authorities who submit that by a corrigendum issued on March 28, 2024 certain queries of the bidders were answered by the respondents. The relevant extract of the same is provided below:
Query of Bidder DFCCIL reply ..................
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Please clarify:
i. Whether MOU with associated other contractor's (Lift/AC/FIRE) is to submitted with bidding documents or at the time of start of relevant work.
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(i) All instruction already given in the Bid document under Article 3, obligations of the contractors and all required documents to be submitted with bidding documents only.
5. Counsel on behalf of respondents has also relied upon the judgment of Division Bench of Allahabad High Court in Rhetoric Technologies Pvt. Ltd. Through Authorised Representative and another vs. State of U.P. Through Principal Secretary Transport Sectt. and others, 2023 SCC OnLine All 50, to submit that interpretation of the bid document and corrigendum issued therein would have to be as per the author of the bid documents and the courts are not to interpret the same under normal circumstances.
6. After hearing the counsel appearing on behalf of the parties and perusing the relevant documents, we are of the view that scope of writ jurisdiction with regard to interpretation of the tender documents and interference by the Court is required to be minimal and only when this Court finds an extremely arbitrary action or a malafide action, the Court would interfere. Paragraphs No. 18 and 26 of judgement in Rhetoric Technologies Pvt. Ltd. (supra) are delineated below:
"18. In Municipal Corporation Ujjain and Another V. B.V.G. India Ltd and others, 2018 5 SCC 462, the Supreme Court had observed that the High Court should not ordinarily interfere with the judgement of expert consultants on the issue of technical qualifications of a bidder when the consultant had taken into consideration various factors including basis of non-performance of the bidder. It is not open to the Court to independently evaluate technical bids and financial bids of the parties as an Appellate Authority for coming to its own conclusion in as much as unless thresholds of malafide intention to favour someone or bias, arbitrariness, irrationality or perversity are met. The Court observed that if the decision is taken purely in public interest, the Courts ordinarily should exercise judicial restraint.
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26. The learned Standing Counsel appearing on behalf of the State Respondents has placed reliance upon judgement rendered by the Supreme Court in N.G. Projects Ltd versus Vinod Kumar Jain and others 2022 (6) SCC 127; and paragraphs 13, 14, 15 and 23 thereof. The Supreme Court observed that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. With regard to the interpretation of terms of the contract and the question as to whether a term of the contract is essential or not is to be viewed from the perspective of the employer and by the employer. 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. The Courts must also not interfere where such interference would cause unnecessary loss to the public exchequer and while entertaining the writ petition and/or granting the stay which may ultimately delay the execution of public projects, it must be remembered that it might seriously impede the execution of the projects and disable the State and or its agencies/instrumentalities from discharging their Constitutional and legal obligation towards the citizens. It was observed by the Supreme Court that the High Court should be extremely careful and circumspect in exercise of the discretion while entertaining such petitions and/or while granting stay in such matters. The Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tender. The Court does not have the expertise to examine the terms and conditions of the present economic activities of the State and this limitation should be kept in view. The Courts should be even more reluctant in interfering with the contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The Court should only examine as to whether the decision making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is a total arbitrariness or that the tender has been granted in a malafide manner, the Court should relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional cost on the State and is also against public interest. Any contract of public service should not be interfered with lightly and in any case, there should not be any interim order derailing the entire process of the services meant for the larger public good."
7. In the present case, we are unable to assist the petitioner as we do not find any malafide intention by the authorities. Further more, the interpretation being taken by the respondent authorities appears to be a reasonable one, and therefore, this Court would not replace the said interpretation with its own opinion.
8. In view of above, we do not find any reason to interfere in the orders passed by the Authorities.
9. The writ petition is dismissed.
Order Date :- 12.8.2024
Sazia
(Kshitij Shailendra,J.) (Shekhar B. Saraf,J.)