Bombay High Court
Afcons Infrastructure Limited And ... vs Oil & Natural Gas Corporation Ltd. And ... on 28 August, 2013
Author: D.Y.Chandrachud
Bench: D.Y.Chandrachud, M.S. Sonak
PNP 1/13 WPL1505-28.8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (LODG.) NO.1505 OF 2013
Afcons Infrastructure Limited and others ..Petitioners.
versus
Oil & Natural Gas Corporation Ltd. and others ..Respondents.
.....
Mr. Iqbal Chagla, Senior Advocate with Mr. Janak Dwarkadas, Senior Advocate
with Mr. Gaurav Joshi and Ms. Meenakshi Iyer and Mr. Amit Iyer i/b Advaya
Legal for the Petitioners.
Mr. Kevik Setalvad, Additional Solicitor General with Mr. Nishit Dhruva,
Mr.Aditya Mehta, Mr. Prakash Shinde and Mr. Vishnu Priya i/b MDP & Partners
for Respondent No.1.
Mr. Rafique Dada, Senior Advocate with Mr. Virag Tulzapurkar, Senior Advocate
with Mr. Vikram Trivedi, Mr. Sachin Chandarana, Mr. Amit Chouhan, Ms. Sanjana
Gopi and Ms. Urjita Chitnis i/b M/s. Manilal Kher Ambalal & Company for
Respondent No.2.
Mr. Ravi Kadam, Senior Advocate with Mr. Paresh Shah, Ms. Tanmayee Salekar
and Ms. Rishika Jhaveri i/b Shah and Sanghavi for Respondent No.3.
.....
CORAM : DR.D.Y.CHANDRACHUD, AND
M.S. SONAK, JJ.
28 August 2013.
ORAL JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.) :
Rule, by consent made returnable forthwith. The learned counsel appearing on behalf of the Respondents waive service on behalf of the respective Respondents. By consent, the Petition is taken up for hearing and final disposal.
2. In these proceedings under Article 226 of the Constitution the Petitioners have sought to challenge the validity of a decision which has been taken by the First Respondent in the course of a tendering process by which a consortium consisting of the Second and Third Respondents has been held to be technically qualified for bidding for the contract. Following that decision the price bids of the eligible bidders were opened and the Second and Third Respondents were found to be the lowest bidders.
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3. The First Respondent invited bids for the award of a contract which envisaged the conversion of Sagar Pragati, a Mobile Offshore Drilling Unit (MODU) to a Mobile Offshore Production Unit (MOPU). Sagar Pragati is a drilling rig which was built in 1981 and refurbished in 1987. After the conversion of the rig as proposed, it is to be deployed at the existing C-24 P Well head platform at Bombay High. The processed gas would thereafter be dispatched to the onshore terminal of the First Respondent at Hazira. The bid documents inter alia provided for the following scope of work :
"This conversion of MODU to MOPU shall involve demolition of identified drilling and associated equipment as indicated elsewhere in the bid documents. Apart from the list of equipment for demolition, any other equipment which shall not be useful for production facilities after conversion shall also be demolished. Scope also includes the general refurbishment of the vessel, including hull, legs, jacking system, jetting system, utilities etc. Specially designed hydrocarbon processing facilities shall be added to the vessel. ABS has recently carried out periodical survey of vessel and based on their recommendations, the preliminary dry dock scope of work applicable at that time is placed at Appendix-A to Section -2.0. This shall give a preliminary idea to the bidders on dry dock scope of work for legs, spud cans and hull. However, the actual scope of work shall be finalized based on the detailed pre engineering survey carried out by contractor /ABS for the desired conversion.
The scope of work under this tender includes detailed Rig Survey, demolition of identified equipment, deck strengthening, Steel renewal of Spud can, Repair of Jack-up facility, Repair of legs, hull repair/ refurbishment / modification, Complete design, detailed engineering, Procurement / Supply, Inspection, Fabrication, Installation, Start-up, Testing, Pre-commissioning, Certification of New Process Facilities to be installed in place of demolished drilling equipment maintaining the Vessel stability, integrity in both floating / sailing as well as Jacked-up mode, Transportation of MOPU (after conversion ) up to Offshore, Jack-up at offshore C-24P WHP site, Installation, Hook-up, Pre-commissioning, & Commissioning and final integration with existing C-24P well head platform for all the Process, Utility, Safety and Miscellaneous items of MOPU. Final ABS class certification after repair and addition of process facilities is also included in the contractor's scope of work."
4. The scope of work under the contract envisaged inter alia engineering, procurement of equipment, transportation of the drilling unit to the conversion site, repair and replacement of the MODU structures, systems and equipment, MODU demolition work, design, engineering, procurement, supply, fabrication and delivery to the conversion site of all new equipment for the MOPU, installation and refurbishment work at the conversion site (dry dock yard) ::: Downloaded on - 27/11/2013 20:13:01 ::: PNP 3/13 WPL1505-28.8 testing, certification and onward transportation to the offshore site. The contract envisaged repairs to the legs, hull and spud cans of the existing drilling unit, and conversion of the drilling unit into a production unit. Clause 5.5 of the bid evaluation criteria in Appendix A-6 provided as follows :
"5.5 a) For the purpose of assessment of the capability of the Bidder, the adequacy of facilities. services and resources proposed by the Bidder to execute the Works, existing at the time of bidding and availability of these facilities, services, resources and offshore construction spreads during the Construction Schedule of the project shall be evaluated.
b) Bidder to confirm about the availability of shipyard having all infrastructure required to carry out the job and should have adequate draft available to take the jack-up Rig Sagar Pragati alongside the jetty for safe berthing / jacking of the rig."
5. The bid documents stipulated that the conversion site where the existing drilling unit would undergo refurbishment into a production unit would be a dry dock yard. In order to undertake the job of repairing the spud cans, it was necessary to bring them out of water and the bidders were informed that the spud cans of Sagar Pragati had to remain in a draught of about 9.8 mtrs. Hence, a sufficient depth of water is required to take the rig inside the shipyard channel and the yard must have adequate facility to handle and place the rig safely on blocks in order to facilitate the carrying out of the jobs envisaged in the contract.
6. The issue in these proceedings relates to the decision of the First Respondent to hold the consortium of the Second and Third Respondents as technically qualified and hence eligible for shortlisting and for the opening of price bids. The challenge to the eligibility of the consortium is on the following grounds which have been formulated by the learned senior counsel during the course of the submission :
i) It was an essential and mandatory requirement of the tender that the eligible bidder must possess a dry dock facility. The Second Respondent is relying upon the facilities of the Third Respondent, but a dry dock of an adequate size is not available. In other words, the facilities of the Third Respondent are not commensurate with the nature of the work;
ii) The dry dock cell of the First Respondent, opined, in the course of the evaluation that the Second and Third Respondents did not have a dry ::: Downloaded on - 27/11/2013 20:13:01 ::: PNP 4/13 WPL1505-28.8 dock facility of the required dimensions, in spite of which a decision was taken on review to hold the Second and Third Respondents as eligible to participate in the bidding process;
iii) There was at the behest of the Second and Third Respondents an alteration by the First Respondent of the governing tender conditions inasmuch as the First Respondent proceeded to consider as to whether the consortium had an alternate method for effecting the contractual work in lieu of the dry dock facility. The material on the record would indicate that the consortium suggested methods in lieu of dry docking which is impermissible midstream.
On these grounds it has been submitted that the decision to hold the Second and Third Respondents as eligible and consequently to the award of the contract is arbitrary and violative of Article 14 of the Constitution.
7. On the other hand, the learned Additional Solicitor General of India submits that :
i) The Petition proceeds on an incorrect assumption that the tender contemplates only one dry dock method viz. the graving dry dock method.
The tender enquiry, as a matter of fact, did not provide for any dry dock method as such, but a dry dock scope of work;
ii) The graving dry dock method is not the only acceptable method for dry docking known to the trade and even the Petitioners have accepted in their rejoinder that a floating dry dock method is an accepted modality for dry docking;
iii) Since the tender did not provide for the deployment of a particular dry dock method at all, but for a dry docking scope of work, it was open to the First Respondent in the course of the evaluation to consider as to whether any of the methods that were proposed by the Second and Third Respondents fulfill the requirements of the tender and a decision has been arrived at to the effect that the barge method proposed by the consortium is an acceptable mode of fulfilling the contract;
iv) The decision holding the Second and Third Respondents as technically qualified was objected to before the Independent External Monitor (IEM) constituted by the First Respondent. The IEM after due scrutiny of all the ::: Downloaded on - 27/11/2013 20:13:02 ::: PNP 5/13 WPL1505-28.8 objections came to the conclusion that the First Respondent fulfills the requirements of the tender ;
v) After the price bids have been opened, it has been revealed that the bid submitted by the Petitioners is higher than the bid submitted by the consortium to the extent of U.S. $ 5 Million and it was open to the First Respondent acting in the public interest to determine that the contract should be awarded to the lowest bidder;
vi) There has been no change in the tender conditions.
8. The learned senior counsel appearing on behalf of the Second and Third Respondents submitted that :
i) The entire deliberation in the course of the evaluation of the technical bids was carried out before the price bids were opened;
ii) No objections were raised by the Petitioners until the Second and Third Respondents were found to be the lowest bidders after the opening of the price bids on 21 May 2013;
iii) Whereas the tender required dry docking, the method of dry docking was not specified and it was not necessary, as the Petitioners assume, that the dry docking could be carried out only by the graving dry dock method.
The rival submissions now fall for consideration.
9. The scope of work under the contract envisaged the conversion of the existing Mobile Offshore Drilling Unit into a Mobile Offshore Production Unit. The process of conversion required among other things the refurbishment of the vessel and the carrying out of repairs on the legs, spud cans and hull among other items of work. Apart from the requirement of carrying out repair, the tender envisaged the work of conversion in pursuance of which the existing equipment would have to be demolished followed by the installation at the conversion site of equipment required for a Mobile Offshore Production Unit. The scope of the work under the contract as defined in the tender documents refers to what is described as "preliminary dry dock scope of work" as specified in Appendix-A to Section 2 which was based on a recently carried out survey by ABS. The tender also refers to the conversion site as the dry dock yard where the work would have to be carried out. The Second and Third Respondents had confirmed the ::: Downloaded on - 27/11/2013 20:13:02 ::: PNP 6/13 WPL1505-28.8 availability of the yard and of the required infrastructure in the following terms:
"Bidder confirms yard availability and having all infrastructure required to carry out the job as per tender. Bidder has adequate draft available to take the jack-up Rig Sagar Pragati along the jetty for safe berthing / jacking of the rig."
10. Now Clause 5.5 of the bid evaluation criteria was in two parts. Sub-clause
(a) stipulated that for the purpose of assessing the capability of the bidder, the First Respondent would evaluate the adequacy of the facilities, services and resources for executing the work both at the time of bidding and during the course of the construction schedule. Sub-clause (b) required each bidder to confirm the availability of the shipyard with all infrastructure required for carrying out the job and the availability of an adequate draft to take the rig along side the jetty for safe berthing / jacking of the rig.
11. The First Respondent had in Clause 3.2 of the invitation for bids provided for a pre-bid conference during the course of which the doubts that may be raised by bidders would be clarified. Bidders were however informed that after the tender was closed, no clarifications would be sought and bidders would have to ensure that the bids are complete in all respects conforming to the tender terms and conditions.
12. During the course of the pre-bid conference one of the queries that was raised by the bidders was whether dry docking of the rig was a minimum requirement. This was confirmed by the First Respondent. The eligibility of the bids which were received was evaluated by the Dry Dock Cell and a communication was issued on 25 February 2013 to the Chief Engineer (Civil).
The Dry Dock Cell stated that from the website of the Third Respondent it appeared that it had one dry dock with dimensions of 662 mtrs. in length and 65 mtrs. in width. The dry docking cell was of the view that it could not undertake an evaluation of the yard in the absence of required information, but if the dimensions as mentioned above were correct, the Third Respondent does not seem to be a technically acceptable yard from the point of view of dry docking of Sagar Pragati. The Tender Committee considered the opinion of the Dry Dock Cell together with a Technical Evaluation Report (TER) of Offshore Design Group which was the agency nominated in the tender document. The Tender ::: Downloaded on - 27/11/2013 20:13:02 ::: PNP 7/13 WPL1505-28.8 Committee observed that in accordance with the TER the bidder may be asked to submit dock dimensions, channel width and draft and to establish the suitability of the yard to take up the dry docking of the rig, considering its dimensions and the minimum draft requirements provided in the bid for the activity of converting the rig from a drilling unit to a production unit. Following this, the Second and Third Respondents submitted a clarification on 18 March 2013 suggesting the following methods : (i) the barge method; (ii) the partial dry dock method; and (iii) the false leg method, stating that the methodology for each had been described in an attached document. This clarification was evaluated in a communication dated 19 March 2013 of the Dry Dock Cell of the First Respondent which opined that since the Second Respondent did not intend to dry dock the rig, but to attend to specific underwater repair, the bid may not be considered as technically acceptable. Moreover, it was submitted that two of the alternative methods out of four submitted by the Second Respondent had not been shown in the past to have resulted in a successful outcome. The Tender Committee on 3 April 2013 recommended that the bid submitted by the Second and Third Respondents be rejected in accordance with the prescribed procedures. The recommendation was placed before the Executive Director (COES) on 6 April 2013 who called for a deliberation on two aspects viz. (i) the requirements of a dry dock vis-a-vis the bid evaluation criteria; and (ii) the proposed methods for conversion of the drilling rig to an offshore production unit vis-a-vis the bid evaluation criteria. On 16 April 2013 a clarification was sought from the Dry Dock Cell of the following issues :
(i) Whether the proposed method of M/s L & T - Pipavav Consortium meets the Dry Dock Scope of Works at the PDOC yard;
(ii) Is the proposed method technically acceptable or not; and
(iii) Whether same meets all Classification requirements or not.
13. On 18 April 2013 the Dry Dock Cell in a communication to the Chief Engineer ( Mechanical) reiterated its earlier view. However, the communication stated that as regards the technical acceptability of the method proposed by the Second Respondent, a reference may be made to the Head of the Drilling Services / Head of Material Drilling Services for confirmation. On 19 April 2013 a reference in those terms was made for seeking the view of the Head of Drilling Services. On 22 April 2013 the Chief Engineer ( Mechanical) stated that it was evident that the intent of the bid was to take the rig into a dry dock; however, ::: Downloaded on - 27/11/2013 20:13:02 ::: PNP 8/13 WPL1505-28.8 clause 5.5(b) of the bid evaluation criteria did not specify this as an exclusive method. The Chief Engineer noted that the methods suggested by the Second Respondent (barge method, partial dry dock method, false leg method and cofferdam / deep pontoon method) were alternative methods in lieu of dry docking and since his office did not possess sufficient expertise or experience to comment on the viability of the alternative methods, it would be prudent to obtain an expert opinion from domain experts. On 23 April 2013 a decision was taken to call upon the Second and Third Respondents to submit clarifications in regard to the procedure submitted by them in lieu of the dry dock work from a domain expert agency on whether the method proposed by the consortium is a viable alternative method in totality for the dry dock scope of work and whether it fulfilled the classification requirement. Such an expert opinion, it was stated, was necessary in order to ensure that the rig could be towed out from the ONGC field to the fabricating work site of the contractor prior to the monsoon of 2013. The Tender Committee in its decision of 25 April 2013 accordingly required the Second and Third Respondents to submit a clarification from a domain expert agency / classification society. On 2 May 2013 the consortium representing the Second and Third Respondents submitted four opinions in support, stating that the repairs of legs and spud cans of a rig had been carried out by the barge method successfully. Among the opinions was an opinion dated 2 May 2013 of Det Norske Veritas As stating as follows :
"Please refer to the meeting in our office on 02 nd May 2013, with your representatives wherein you had explained the background of the Sagar Pragati project and the dry dock scope of work to be carried out by you and the method proposed by you using a barge (Deep Pontoon) to carry out the entire dry dock scope of works.
DNV has witnessed and certified repairs of Jack-up Drilling units using the similar Barge method (Deep Pontoon Method) in lieu of Dry-docking, for repairs works of the spud can, lower legs and hull.
The proposed method by L &T -PDOC is a technically viable alternative method in totality for the Dry-dock scope of works at PDOC yard subject to implementation of prudent ship repair practices.
We confirm that ABAN-V Rig was successfully repaired under DNV class survey with similar Barge method (Deep Pontoon Method) recently in August 2011 as per letter dated AOL/BSS/L&T/063 dated 30 th April 2013, addressed to L& T - PDOC consortium."
14. Based on the opinion which was submitted by the Second and Third ::: Downloaded on - 27/11/2013 20:13:02 ::: PNP 9/13 WPL1505-28.8 Respondents, the Chief Engineer by a noting dated 2 May 2013 adopted the view that the bid may be considered to be technically acceptable. The Tender Committee in a meeting held on 3 May 2013 decided to shortlist among others the bid submitted by the Second and Third Respondents, holding it to be technically qualified.
15. On 20 May 2013 a letter was addressed to all the shortlisted bidders informing them that the price bids of four eligible bidders including of the Petitioners and the Second and Third Respondents would be opened on 21 May 2013. Price bids were opened on 21 May 2013 in the presence of the shortlisted bidders including the Petitioners and the Second and Third Respondents. After the opening of the price bids, the Petitioners objected to the participation of the Second and Third Respondents. An objection was thereafter submitted on 22 May 2013 to the Independent External Monitor (IEM). The IEM in turn conducted a hearing and by its decision of 19 June 2013 came to the conclusion that there was no merit in the objection to the eligibility of the Second and Third Respondents. However, the First Respondent was directed to ensure that (i) No deviation in technical requirements was allowed to the Second and Third Respondents; (ii) No change from the dry dock method quoted by the Second and Third Respondents was allowed; and (iii) The use of any shipyard other than that of the Third Respondent would not be permissible.
16. When we deal with the submissions which have been urged on behalf of the Petitioners, we must at the outset note that during the course of a tender evaluation, the officials of the tendering body do, as is common experience, record opinions on the eligibility of rival bidders. The correctness of an evaluation is subject to review and reconsideration in accordance with the tendering procedures enunciated by a public body such as the First Respondent. The fact that a decision which has been taken a certain stage in the hierarchical set up is reviewed by a superior authority or for that matter upon reconsideration does not amount ipso facto to a case of malice in law in the absence of any other circumstances suggesting that the process has been vitiated. The process may be vitiated if the body considers material which is inadmissible or bases its decision on material which is not germane to the scope of the enquiry. This principle has been enunciated in a recent judgment of the Supreme Court in ::: Downloaded on - 27/11/2013 20:13:02 ::: PNP 10/13 WPL1505-28.8 Ratnagiri Gas and Power Private Limited v. RDS Projects Limited 1 :
"The above clearly shows that the High Court has recorded its finding on mala fides on the sole basis that EIL had reviewed its earlier opinion regarding eligibility of RDS. The High Court, in our opinion, was wrong in doing so. While the High Court could find fault with the interpretation which EIL placed on the provisions of clause 8.1.1.1 on the basis of the legal opinion tendered to it, it went too far in dubbing the entire process as mala fide. The High Court appears to have taken the view as though Mr. R.K. Bhandari, Mr. Ravi Saxena and Mr. M.B. Gohil were experts, even in the matter of interpretation of the terms and conditions of the tender document, who could sit in judgment over the legal opinion tendered to them. If on an interpretation of a clause in the tender notice by the Legal Department concerned the officers review their decision or reverse the recommendations made earlier, the same does not tantamount to malice in law so as to affect the purity of the entire process or render it suspect even assuming that the opinion is on a more thorough and seasoned consideration found to be wrong. In the absence of any other circumstances suggesting that the process was indeed vitiated by consideration of any inadmissible material or non- consideration of material that was admissible or misdirection on issues of vital importance, fresh recommendations made in tune with the legal opinion could not be held to have been vitiated by malice in law."
Moreover, as the Supreme Court observed, where a decision making process is multi-layered, it will be expected that officers who participate in the decision making process, would express their view point. This would, however, be subject to an administrative review following the procedures which have been laid down by the authority itself :
"We need hardly point out that in cases where the decision making process is multi-layered, officers associated with the process are free and indeed expected to take views on various issues according to their individual perceptions. They may in doing so at time strike discordant notes, but that is but natural and indeed welcome for it is only by independent deliberation, that all possible facets of an issue are unfolded and addressed and a decision that is most appropriate under the circumstances shaped. If every step in the decision making process is viewed with suspicion the integrity of the entire process shall be jeopardized. Officers taking views in the decision making process will feel handicapped in expressing their opinions freely and frankly for fear of being seen to be doing so for mala fide reasons which would in turn affect public interest. Nothing in the instant case was done without a reasonable or probable cause which is the very essence of the doctrine of malice in law vitiating administrative actions. "
17. In the present case, the controversy essentially turns on what in 1 (2013) 1 SCC 524.
::: Downloaded on - 27/11/2013 20:13:02 :::PNP 11/13 WPL1505-28.8 substance was the scope of work as envisaged in the tender enquiry and the conditions of eligibility. The tender document as noted earlier refers to the dry dock scope of work. In the affidavit in reply that has been filed on behalf of the First Respondent it has been noted that Sagar Pragati is a drilling rig vessel which is triangular in shape with three legs whose height can be adjusted in accordance with the depth of the water in which the rig is deployed. The First Respondent accepted in the reply that a dry dock was a requirement of the bid documents. But it has been contended that no particular method of dry docking was envisaged for the project in question and the petition proceeds on the incorrect premise that the graving dry dock method was the only method that was acceptable under the terms of the tender enquiry. According to the First Respondent having due regard to the nature of the work, dry conditions are necessary for carrying out the work of repair, but there are a number of acceptable methods for dry docking well-known in the trade. Hence, it is not necessary for the entire rig to be in dry conditions at all times and it is sufficient if the portion of the rig on which work is being carried out at a particular time is in dry conditions. The graving dry dock method involves the entire rig being parked in a yard such that dry conditions are prevalent in the entire rig at all points of time when the work of repair is carried out on the rig. According to the First Respondent the tender did not restrict the method of work to be undertaken on Sagar Pragati to the graving dry dock method. Consequently though dry docking was a minimum and mandatory requirement of the work of the tender, the bid documents did not envisage any specific method in which dry docking would be carried out. As a matter of fact, Clause 5.5 of the bid evaluation criteria in the present case is sought to be distinguished from the criteria which were prescribed in the case of a contract for another rig, Sagar Laxmi which was awarded to the Petitioners in a consortium on a previous occasion. The bid evaluation criteria in the case of the Sagar Laxmi tender, made a specific reference in clause 5.5(b) to dry docking, a term which has been deleted in the corresponding clause of the present tender enquiry.
18. Significantly in the rejoinder that has been filed by the Petitioners, it has been stated that "a floating dry dock falls within the definition of dry dock" as defined. The Petitioners in the course of the affidavit in rejoinder specifically acknowledged that there are several dry docking methods including amongst ::: Downloaded on - 27/11/2013 20:13:02 ::: PNP 12/13 WPL1505-28.8 them the following :
● "Graving dry docks
● Floating dry docks
● Marine railways / Patent Slips
● Shiplifts
● Mobile marine lifts"
19. The First Respondent has among other things relied upon the definition of the expression "dry dock" in the standard specifications for U.S. Coastguard Vessels which include graving docks, floating dry docks, marine railways and vertical ship lifts. At this stage, it is not necessary for the Court to consider the applicability of the U.S. Coastguard specifications since the present tender would be governed by its own terms and conditions. But the point to note is that the Petitioners themselves do not dispute that there is no singular meaning that his ascribable to the expression "dry docking" and several acceptable methods including a floating dry dock would fall within the purview of the expression. This must be coupled with the fact that the challenge which has been addressed before the Court to the eligibility of the consortium of the Second and Third Respondents is not on the ground that the consortium did not possess a dry dock at all, but that the dry dock did not possess an adequate or sufficient facility to subserve the fulfillment of the contractual obligation. In our considered view, in a matter such as the present it would be wholly impermissible for the Court in the exercise of its jurisdiction under Article 226 to second guess an expert evaluation in the facts of the case. An Independent External Monitor as prescribed in the tender enquiry has considered the objections of the Petitioners. Whether the Second and Third Respondents have a facility which is adequate or sufficient in itself to fulfill the contractual obligation is a matter which primarily turns on an evaluation of facts. The contract in the present case did not provide for an exclusive method of dry docking and once, as the pleading would indicate, it is an accepted position that more than one methodology for dry docking is known to the trade, the Court would not be justified in re-appreciating a primary determination made by the tendering authority based on the facts of the case.
20. In this view of the matter and for the reasons that we have indicated we are unable to subscribe to the submission that the Second and Third ::: Downloaded on - 27/11/2013 20:13:02 ::: PNP 13/13 WPL1505-28.8 Respondents failed to fulfill the requirements of eligibility or that there was any alteration in the tender conditions midstream in the course of the tender enquiry. The Second and Third Respondents in consortium have submitted a bid which is the lowest bid, the difference between the two bidders being admittedly to the extent of U.S. $ 5 Million. It may be that the difference between the two bids as a proportion of the overall contract price of U.S. $ 170 Million may be a small percentage, but that again is a matter on which this Court cannot enter upon once it is established that the lowest bidder has been selected for the award of the contract after the bid was found to be technically qualified.
21. In the circumstances, no case for interference under Article 226 is made out. The Petition shall accordingly stand dismissed.
22. At the conclusion of the judgment, learned senior counsel appearing on behalf of the Petitioners seeks an extension of the stay that was granted at the ad interim stage. On 13 August 2013 the Division Bench directed that in the event that the First Respondent decides to award the tender to the Second and Third Respondents, the decision shall not be implemented for 72 hours after service of the notice of the decision. On 19 August 2013 the ad interim order was extended till 28 August 2013. The Learned Additional Solicitor General has opposed the extension of the stay stating that the work is of paramount national importance and is required to commence on 30 August 2013 and has to be completed on 30 April 2015. Having regard to the public interest involved in the expeditious completion of the work, we are not inclined to grant any further extension of the stay. Stay refused.
(Dr. D.Y.Chandrachud, J.) (M.S. Sonak, J.) ::: Downloaded on - 27/11/2013 20:13:02 :::