Gauhati High Court
WA/187/2024 on 27 May, 2025
GAHC010109722024
2025:GAU-AS:6797-DB
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WRIT APPEAL NO. 187/2024
All Assam Private Security Agencies Association, having 'Registration No.
KAM(M)/263/D/128 of 2013-14 and its registered officeat opposite Rahman Hospital,
Sixmile, Khanapara, Guwahati-Kamrup(M), Assam, 781022, represented by its
President.
........ Appellant
-Versus-
1. The Tezpur University, A Central University established under a Central Act,
Napaam, in the. District of Tezpur, Pin- 784028, represented by its Vice Chancellor.
2. The Registrar, Tezpur University, Napaam, Tezpur, Pin-784028.
3. The Deputy Registrar, General Administration Tezpur University, Napaam,
Tezpur, Pin-784028.
4. The Secretary to the Government of India, Ministry Of Higher Education, 127-C,
Shastri Bhawan, New Delhi-110001
5. GDX Security Soluttions India Pvt. Ltd., A company having its registered office at
29, Santnagar, East of Kailash, New Delhi - 65, represented by its Managing
Director.
......... Respondents
By Advocates:
For the appellant : Mr. N. Deka
Mr. M. Gogoi
For the respondents : Mr. S. C. Keyal, SC, Tezpur University
Mr. Amit Grover
Mr. B. Borgohain
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:::BEFORE:::
HON'BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI
HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR
Date of hearing : 06.05.2025
Date of Judgment & Order : 27.05.2025
JUDGMENT & ORDER (ORAL)
(N. Unni Krishnan Nair, J.) Heard Mr. N. Deka, learned counsel, appearing on behalf of the appellant. Also heard Mr. S. C. Keyal, learned standing counsel, Tezpur University, appearing on behalf of respondents No. 1, 2, 3 & 4; and Mr. Amit Grover, along with Mr. B. Borgohain, learned counsels, appearing on behalf of respondent No. 5.
2. The present intra-Court appeal has been instituted by the appellant, herein, assailing the order, dated 16.05.2024, passed by the learned Single Judge in WP(c)956/2024.
3. The brief facts requisite for adjudication of the issue arising in the present proceeding, is noticed, as under:
The appellant Association, herein, as petitioner, had approached the writ Court presenting a challenge to the Notice Inviting Tender(NIT), dated 15.02.2024, issued by the authorities of the Tezpur University, inviting bids for the work "hiring of security services at Tezpur University".
Prior to issuance of the Notice Inviting Tender(NIT), dated 15.02.2024; the authorities of the Tezpur University had, for the same work, issued a Notice Inviting Tender(NIT), dated 24.01.2024.
Page |3 The appellant Association being aggrieved by the conditions set-out in the said Notice Inviting Tender(NIT), dated 24.01.2024, more particularly, the prescription made therein, with regard to the manner of evaluation of the technical bids of the bidders, had submitted a representation in the matter. The said representation was considered by the authorities of the Tezpur University and thereafter, the said Notice Inviting Tender(NIT), dated 24.01.2024, was cancelled leading to the issuance of a fresh Notice Inviting Tender(NIT), dated 15.02.2024, with modification in the technical bid evaluation criteria.
The appellant Association raising a grievance that the evaluation criteria for the technical bids, as laid-out in Section (D) of the Notice Inviting Tender(NIT), dated 15.02.2024, was restrictive in nature and that the technical bid evaluation criteria were so prescribed with the sole objective of ousting the members of the appellant Association as well as other local intending tenderers from the purview of the tender process, had approached the writ Court presenting a challenge to the Notice Inviting Tender(NIT), dated 15.02.2024.
The appellant Association had also prayed before the writ Court for issuance of a fresh Notice Inviting Tender(NIT), dated 15.02.2024, by modifying the technical bid evaluation criteria and to prescribe the same in accordance with the earlier Notice Inviting Tenders, dated 19.02.2018, and/or, 17.02.2023.
The learned Single Judge upon considering the issues arising in the said writ petition, was pleased vide order, dated 16.05.2024, in WP(c)956/2024, to dismiss the said writ petition, negating the Page |4 claim made by the appellant Association, herein, for interference with the Notice Inviting Tender(NIT), dated 15.02.2024.
The operative portion of the order, dated 16.05.2024, passed by the learned Single Judge in WP(c)956/2024, being relevant, is extracted hereinbelow:
"[9.] As can be seen, the petitioner is aggrieved with the manner in which marks/points have been allotted in order to qualify the technical bid evaluation of the tender notice dated 15.02.2024, on the ground that the same is unlike the earlier tender notice issued by the University particularly on 19.02.2018 and on 17.02.2023. According to the petitioner, the earlier tender notice for hiring security services for the University laid down certain terms and conditions enabling the members of the petitioner association participating in the tender process. However, as per the impugned tender notice, it would not be possible for intending tenderers particularly such as the members of the petitioner Association to compete in the tender process. The minimum points or marks required to be scored is 70 in the technical bid evaluation in order to be qualified for the financial bid. From the criteria laid down, the petitioner contend that its members will not be able to even score 70 marks/points.
[10.] In view of the issue raised by the petitioner in the criteria provided for the technical bid, we may examine the same. It is seen that for the experience in the work concerned, the tenderer would get 10 marks for executing single contract value up to 10 crores during the last three financial years and 20 marks for executing single contract value above 10 crores. 5 marks has also been fixed for annual turnover of the company up to 100 crores in any year during the last three financial years, while 7 marks is fixed for the annual turnover between 100 crores to 200 crores. For those having upto 5000 numbers of man-power on payroll, 5 marks will be given and 10 marks to those having above 5000 numbers of man-power. It, therefore, can be seen that no minimum criteria has been fixed in order to get marks under the technical bid evaluation. For those having the certification of CAPSI which is also no compulsory, 5 marks can be earned. Therefore, from an overall appreciation of the distribution of marks and its criteria for earning the same, one can say that there is no restrictive clause. This Court also finds that the CVC Guidelines issued vide O.M dated 17.12.2022 and also the General Financial Rules, 2007 cannot be said to have been violated in view of the finding that there is no prohibitory clause in the tender. The PSARA provides for the regulation of the Private Security Agencies and grant of license. The grievance made in the instant case by the petitioner is otherwise in respect to the criteria for allotting marks for qualifying in the technical bid evaluation. All the members of the petitioner association admittedly are license holders and therefore, the regulation has no direct application to the grievance projected by the petitioner.
[11.] It is a settled law that in contractual matters, the power of judicial review may be invoked to prevent arbitrariness, irrationality, unreasonableness, biasness and mala fides and that the power of judicial review should not be invoked to protect private interest at the cost of public interest. Therefore, having regard to the facts and circumstances involved in Page |5 the instant case and in view of the findings arrived at, the petitioner cannot be said to have any legitimate grievance and accordingly, the writ petition is found to be without merit and therefore dismissed. The interim order passed earlier stands vacated."
4. Assailing the order, dated 16.05.2024, passed by the learned Single Judge in WP(c)956/2024; Mr. Deka, learned counsel for the appellant Association, has submitted that the estimated cost of the tender was Rs. 1,50,34,198/-, however, for the purpose of evaluation of the technical bids of the tenderers received in pursuance of the Notice Inviting Tender(NIT), dated 15.02.2024; the criteria so prescribed in Section(D) of the said Notice Inviting Tender(NIT), dated 15.02.2024, has no nexus with, either, the value of the work tendered, or, the nature of the work involved.
5. Mr. Deka, learned counsel, has further submitted that the prescription of the evaluation criteria under Section(D) of the Notice Inviting Tender(NIT), dated 15.02.2024, was so made with a view to deprive the members of the appellant Association from having their respective financial bid examined, in-as-much as, given the requirement of securing a minimum of 70 marks out of 100 marks in order to be eligible for the financial bids to be opened; the members of the appellant Association given the technical bid evaluation criteria would not be in a position to secure 70 marks. Accordingly, it has been submitted by Mr. Deka, learned counsel, that the members of the appellant Association would be excluded from the purview of the tender process at the stage of evaluation of their technical bids inspite of the fact that each of the members of the appellant Association desirous to participate in the tender process in pursuance of the Notice Inviting Tender(NIT), dated Page |6 15.02.2024, had met the eligibility criteria so set-out in the said Notice Inviting Tender (NIT), dated 15.02.2024.
6. Mr. Deka, learned counsel for the appellant Association, has submitted that the evaluation criteria of the technical bids received from the tenderers in pursuance of the Notice Inviting Tender(NIT), dated 15.02.2024, have been tailor-made so as to favour a few big contractors. The learned counsel has further submitted that a mere perusal of the technical bid evaluation criteria so prescribed under Section(D) of the Notice Inviting Tender(NIT), dated 15.02.2024, would go to show that the same has got no nexus with the work so tendered.
7. Mr. Deka, learned counsel, has submitted that the learned Single Judge had failed to appreciate the contentions raised by the appellant Association before him and accordingly, had erroneously come to a conclusion that there was no restrictive clause existing in the Notice Inviting Tender (NIT), dated 15.02.2024. The learned counsel has also submitted that the manner of prescription of the evaluation criteria for the technical bid, in itself, has the effect of restricting consideration of the bids submitted by the otherwise eligible bidders like the members of the appellant Association.
8. Mr. Deka, learned counsel, has further submitted that the prescription of the technical bid evaluation criteria must have a nexus with the work tendered and the requirement of selecting an agency capable of executing of the work, in question. The learned counsel has submitted that there is no material available to demonstrate that the members of the appellant Association were in Page |7 any manner ineligible for being awarded the work tendered vide the Notice Inviting Tender(NIT), dated 15.02.2024.
9. In the above premises, Mr. Deka, learned counsel appearing for the appellant Association, has submitted that the impugned Notice Inviting Tender(NIT), dated 15.02.2024, would mandate an interference by this Court and for a further direction to the authorities of the Tezpur University to initiate a fresh tender process by modifying the technical bid evaluation criteria as prescribed in the said Notice Inviting Tender(NIT), dated 15.02.2024.
10. Per contra, Mr. Keyal, learned standing counsel, Tezpur University, appearing on behalf of respondents No. 1, 2, 3 & 4, at the outset, has submitted that a perusal of the tender conditions would go to demonstrate that there was no restrictive clause incorporated therein, preventing the members of the appellant Association to submit their respective technical bids. The learned standing counsel has further submitted that the campus dwellers in the Tezpur University since 2018 has increased manifolds and presently, more than 7000 dwellers are residing in the campus. Such residents include students as well as employees and their dependents. The learned standing counsel has further submitted that considering the fact that further physical expansion of the Campus was under active consideration of the University with new allotment of land made to it which would have the effect of doubling the size of the campus, it was imperative to ensure hiring of a professionally competent security agency for ensuring safety and security of the campus dwellers and accordingly, in the wisdom of Page |8 the authorities of the Tezpur University, the conditions for evaluation of the technical bids were so formulated in Section(D) of the Notice Inviting Tender(NIT), dated 15.02.2024.
11. Mr. Keyal, learned standing counsel, Tezpur University, has submitted that upon consideration of the representation preferred by the appellant Association with regard to the evaluation criteria as prescribed in the earlier Notice Inviting Tender(NIT), dated 24.01.2024; the qualification criteria were relaxed and the earlier Notice Inviting Tender(NIT), dated 24.01.2024, was cancelled by the authorities of the Tezpur University with the issuance of a fresh Notice Inviting Tender(NIT), dated 15.02.2024, with relaxed evaluation criteria.
12. Mr. Keyal, learned standing counsel, Tezpur University, has further submitted that the authorities of the Tezpur University having authored the Notice Inviting Tender(NIT), dated 15.02.2024, by strictly appreciating its requirement; this Court in exercise of its power of judicial review, would be pleased not to interfere with such prescription as set-out in the Notice Inviting Tender(NIT), dated 15.02.2024.
13. In the above premises, Mr. Keyal, learned standing counsel, Tezpur University, has submitted that the impugned order, dated 16.05.2024, passed by the learned Single Judge in WP(c)956/2024, would not mandate an interference from this Court.
14. Mr. Grover, learned counsel appearing on behalf of respondent No. 5, at the outset, has submitted that the submissions made by Mr. Keyal, learned standing counsel, Tezpur University, is being Page |9 adopted by him. The learned counsel has further submitted that in pursuance of the Notice Inviting Tender(NIT), dated 15.02.2024; the bids submitted by the respondent No. 5, having been found to be the most suitable one, the authorities of the Tezpur University had awarded the work, in question, to the said respondent No. 5 and an agreement, in this connection, was executed between the respondent No. 5 and the authorities of the Tezpur University, on 01.07.2024. The learned counsel has further submitted that the respondent No. 5, herein, was executing the work involved without any blemish.
15. We have heard the learned counsels appearing for the parties and also perused the materials available on record.
16. The challenge in the present proceeding being to the prescription of evaluation criteria under Section (D) of the Notice Inviting Tender(NIT), dated 15.02.2024; the same being relevant, is extracted hereinbelow:
"SECTION D TECHNICAL BID EVALUATION Sl. Technical Evaluation Criteria Marks Remarks Similar experience in Govt (Centre/State) Max 20 Marks Relevant 1 Departments/Autonomous Bodies/PSU's/ Certificate to PSE's/Bank & Insurance Companies or other be uploaded equivalent & companies/MC/Organizations of high repute
a) Executed single contract value upto Rs. 10 10 crs during last three F.Y.'s
b) Executed single contract value above Rs.10 crs, during the last three years 20
2 Number of years in operation in services Max 10 Marks Relevant sector Certificate to
a) Upto 05 Years 02 be uploaded
b) Above 05 Years & up to 10 years 05
c) Above 10 years & up to 15 years 07 d) Above 15 years years 10 3 Annual Turnover of the company any one of Max 10 Marks Relevant the last three FY Certificate to
a) Up to 100 crores 05 be uploaded
b) Between 100 crores to 200 crores 07 4 Manpower on Payroll Max 10 Marks Relevant
a) Upto 5000 nos 5 Certificate to P a g e | 10
b) Above 5000 nos 10 be uploaded 5 Quality related marks Max 10 Marks Relevant
a) Valid ISO 9001-2015 5 Certificate to
b) 150 9001-2015 (More than 5 10 be uploaded years old) 6 National Presence (as per PSARA) Max 10 Marks Relevant
a) Upto 03 States 5 Certificate to
b) Above 03 States 10 be uploaded 7 Certification of CAPSI (Central Association Max 5 Marks Relevant of Private Security Industry) Certificate to be uploaded 8 Company Presentation and Deployment Max 25 Marks Soft copy to be schedule uploaded Total- 100 points
1) The minimum technical score (ST) required to be eligible: 70
2) Financial bid of the bidders, getting minimum 70 or above technical score, shall only be opened.
3) Bidders may note that remuneration of the deployed security guards, shall be reimbursed by the University after submission of bills based on the rate of wages as per relevant guidelines of Govt. of India, notified from time to time.
4) Evaluation of financial bids shall be made solely on the basis of service charge quoted by the bidders. The service charge quoted by the bidders shall be within the range of 3.85% to 7% on the basic wage component as per the minimum wages notified by the Government of India from time to time, including transaction charges (excluding EPF, ESI, etc.), as per the Ministry of Finance, Government of India guidelines on Minimum Floor Price for minimum wage based Manpower Outsourcing Service."
17. The said Notice Inviting Tender(NIT), dated 15.02.2024, also provides for the eligibility criteria of a bidder and the same also being relevant, is extracted hereinbelow:
"Eligibility of Bidder
1. The agency should be registered and licensed Security Agency under the Private Security Agencies (Regulation) Act, 2005, read with the Assam Private Security Agencies Rules, 2008.
2. The agency must have minimum of 03 (three) years' experience in providing security services at University/IT/IIM/ other Reputed Academic Institutions in the North-Eastern region of India as on 31.03.2022 with at least. 40 (Forty) ladles security personnel on outsourcing basis. Current work executed shall also be considered.
3. Security agency having not less than 40 trained lady security guards on their payroll as on last date of submission of bid.
4. The agency must have organized training arrangements for lady security guards with clear recruitment policies and may be own training centres.
5. Tender Fee: The tenderer shall deposit Non-refundable Tender fee of Rs. 5,000/- (Rupees Five Thousand only) through Demand Draft drawn in favour of "Registrar, Tezpur University" payable at Tezpur.
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6. Earnest Money Deposit (EMD): The Tenderer shall deposit Earnest Money of Rs. 1,00,000/-(Rupees One Lakh only) through Demand Draft drawn in favour of "Registrar, Tezpur University" payable at Tezpur. The Earnest Money Deposit will be refunded to the tenderers whose offers are not accepted within one month from the day of offer letter to successful bidder. Earnest Money Deposit of the tenderers whose offer is accepted will be kept until such time, that the Performance Bank Guarantee is received by the University.
7. The agency should have total turnover of 4 crores during the last three financial years, however, the average financial turnover should not be less than Rs. 1 Crore (Rupees One Crore) per year from security services related work in the last 03 (three) financial year ended on 31.03.2022."
18. It is not disputed that the members of the appellant Association satisfy the said eligibility criteria as prescribed for submission of bids. Accordingly, it is to be noted that the members of the appellant Association were not prevented from submitting their respective bids in pursuance of the Notice Inviting Tender(NIT), dated 15.02.2024, in-as-much as, it is not being contended, either, before the writ Court, or, before us, that the eligibility criteria as prescribed in the Notice Inviting Tender(NIT), dated 15.02.2024, were arbitrary and the members of the appellant Association, were not satisfying the same.
19. Having noticed the said position; the technical bid evaluation criteria as set-out under Section(D) of the Notice Inviting Tender(NIT), dated 15.02.2024, would call for an examination.
20. A perusal of the technical bid evaluation criteria as set-out under Section(D) of the Notice Inviting Tender(NIT), dated 15.02.2024, would go to reveal that the authorities of the Tezpur University had provided for marks under different heads for the purpose of evaluating the technical bids received in pursuance of the Notice Inviting Tender(NIT), in question. A perusal of the various heads so set-out with regard to evaluation of the technical P a g e | 12 bids received, would go to show that the same in no manner had reduced the eligibility criteria as set-out in the Notice Inviting Tender(NIT), dated 15.02.2024. The criteria as set-out for evaluation of the bid was so done with a view to select an experienced hand for executing the work, tendered. There being no restrictive clause in the tender document debarring an otherwise eligible bidder from participating in the tender process, in question; the contention of Mr. Deka, learned counsel for the appellant Association, that the technical bid evaluation criteria so set-out are restrictive in nature, would not mandate an acceptance by this Court.
21. It is a settled position of law that in evaluating tenders and awarding contracts, the parties are to be governed by the principles of commercial prudence. The principles of equity and natural justice, accordingly, must stay at a distance. While formulating the conditions of the tender document and awarding of a contract, greater latitude must be granted to the State authorities. Unless the action of the tendering authority is found to be malicious and/or in misuse of the powers conferred on it; interference by a Court is not warranted. Pre-conditions or qualifications for evaluation of tenders are requisite so as to ensure that the contractor has the capacity and the resources to execute the work successfully.
22. Having noticed the above position; this Court would now examine the decisions of the Hon'ble Supreme Court holding the field with regard to the power of the writ Court to interfere with the prescriptions made in a tender condition as well as the importance P a g e | 13 so required to be given with regard to interpretation of such tender conditions set-out by the employer.
23. With regard to the power of judicial review of the administrative action; the Hon'ble Supreme Court in the case of Jagdish Mandal v. State of Orissa, reported in (2007) 14 SCC 517, had drawn the following conclusions:
"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;
OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached";
(ii) Whether public interest is affected.
If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition tenderer/contractor or distribution of State largesse of penal consequences on a tenderer/contractor or distribution of State largesse(allotment of sites/shops, grant of licences, dealerships and frances) stand on a different footing as they may require a higher degree of fairness in action."
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24. The Hon'ble Supreme Court in the case of Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd. & anr., reported in (2016) 16 SCC 818, had drawn the following conclusions:
"11. Recently, in Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium) it was held by this Court, relying on a host of decisions that the decision-making process of the employer or owner of the project in accepting or rejecting the bid of a tenderer should not be interfered with. Interference is permissible only if the decision-making process is mala fide or is intended to favour someone. Similarly, the decision should not be interfered with unless the decision is so arbitrary or irrational that the Court could say that the decision is one which no responsible authority acting reasonably and in accordance with law could have reached. In other words, the decision- making process or the decision should be perverse and not merely faulty or incorrect or erroneous. No such extreme case was made out by GYT-TPL JV in the High Court or before us.
12. In Dwarkadas Marfatia and Sons v. Port of Bombay it was held that the constitutional courts are concerned with the decision-making process. Tata Cellular v. Union of India went a step further and held that a decision if challenged (the decision having been arrived at through a valid process), the constitutional courts can interfere if the decision is perverse. However, the constitutional courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute its view for that of the administrative authority. This was confirmed in Jagdish Mandal v. State of Orissa as mentioned in Central Coalfields.
13. In other words, a mere disagreement with the decision-making process or the decision of the administrative authority is no reason for a constitutional court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional court interferes with the decision-making process or the decision.
14. We must reiterate the words of caution that this Court has stated right from the time when Ramana Dayaram Shetty v. International Airport Authority of India was decided almost 40 years ago, namely, that the words used in the tender documents cannot be ignored or treated as redundant or superfluous they must be given meaning and their necessary significance. In this context, the use of the word "metro" in Clause 4.2 (a) of Section III of the bid documents and its connotation in ordinary parlance cannot be overlooked.
15. We may add 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. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given."
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25. In the case of Galaxy Transport Agencies v. New J. K. Roadways, Fleet Owners & Transport Contractors, reported in (2021) 16 SCC 808, a 3-Judge Bench of the Hon'ble Supreme Court had held that the authority that authors the tender document is the best person to understand and appreciate its requirements and thus, its interpretation should not be second guessed by a Court in judicial review proceeding.
26. The Hon'ble Supreme Court in the case of M/s Agmatel India Pvt. Ltd. v. Resoursys Telecom & ors., reported in (2022) 5 SCC 362, after noticing its earlier decisions in the case of Galaxy Transport Agencies(supra); Bharat Cooking Coal Ltd. & ors. v. AMR Dev Prabha & ors., reported in (2020) 16 SCC 759; Silppi Constructions Contractors v. Union of India & anr., reported in (2020) 16 SCC 489; had drawn the following conclusions:
"24. The scope of judicial review in contractual matters, and particularly in relation to the process of interpretation of tender document, has been the subject-matter of discussion in various decisions of this Court. We need not multiply the authorities on the subject, as suffice it would be refer to the three-Judge Bench decision of this Court in Galaxy Transport Agencies wherein, among others, the said decision in Afcons Infrastructure has also been considered; and this Court has disapproved the interference by the High Court in the interpretation by the tender inviting authority of the eligibility term relating to the category of vehicles required to be held by the bidders, in the tender floated for supply of vehicles for the carriage of troops and equipment.
25. This Court referred to various decisions on the subject and stated the legal principles as follows: (Galaxy Transport Agencies case, SCC paras 14-
20) "14. In a series of judgments, this Court has held that the authority that authors the tender document is the best person to understand and appreciate its requirements, and thus, its interpretation should not be second-guessed by a court in judicial review proceedings. In Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., this Court held: (SCC p. 825, para 15) "15. We may add 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. The constitutional courts must defer to this P a g e | 16 understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given."
15. In the judgment in Bharat Coking Coal Ltd. v. AMR Dev Prabha, under the heading "Deference to authority's interpretation", this Court stated: (SCC p. 776, paras 50-52) "50. Lastly, we deem it necessary to deal with another fundamental problem. It is obvious that Respondent 1 seeks to only enforce terms of NIT. Inherent in such exercise is interpretation of contractual terms. However, it must be noted that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes.
51. In the present facts, it is clear that BCCL and C1-India have laid recourse to clauses of NIT, whether it be to justify condonation of delay of Respondent 6 in submitting performance bank guarantees or their decision to resume auction on grounds of technical failure. BCCL having authored these documents, is better placed to appreciate their requirements and interpret them.
52. The High Court ought to have deferred to this understanding, unless it was patently perverse or mala fide. Given how BCCL's interpretation of these clauses was plausible and not absurd, solely differences in opinion of contractual interpretation ought, not to have been grounds for the High Court to come to a finding that the appellant committed illegality."
16. Further, in the recent judgment in Silppi Constructions Contractors v. Union of India, this Court held as follows: (SCC pp. 501- 02, para 20) "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."
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17. In accordance with these judgments and noting that the interpretation of the tendering authority in this case cannot be said to be a perverse one, the Division Bench ought not to have interfered with it by giving its own interpretation and not giving proper credence to the word both" appearing in Condition No. 31 of the NIT For this reason, the Division Bench's conclusion that JK Roadways was wrongly declared to be negligible, is set aside.
18. Insofar as Condition No. 27 of the NIT prescribing work experience of at least 5 years of not less than the value of Rs 2 crores is concerned, suffice it to say that the expert body, being the Tender Opening Committee, consisting of four members, clearly found that this eligibility condition had been satisfied by the appellant before us. Without therefore going into the assessment of the documents that have been supplied to this Court, it is well settled that unless arbitrariness or mala fide on the part of the tendering authority is alleged, the expert evaluation of a particular tender, particularly when it comes to technical evaluation, is not to be second-guessed by a writ court. Thus, in Jagdish Mandal v. State of Orissa, this Court noted: (SCC pp. 531-32, para 22) "22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;
OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that P a g e | 18 no responsible authority acting reasonably and in accordance with relevant law could have reached";
(ii) Whether public interest is affected.
If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action."
19. Similarly, in Montecarlo Ltd. v. NTPC Ltd. 13, this Court stated as follows: (SCC p. 288, para 26) "26. We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinised by the technical experts and sometimes third-party assistance from those unconnected with the owner's organisation is taken. This ensures objectivity. Bidder's expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi- prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decision-making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the Court should follow the principle of restraint. Technical evaluation or comparison by the Court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints."
20. This being the case, we are unable to fathom how the Division Bench, on its own appraisal, arrived at the conclusion that the P a g e | 19 appellant held work experience of only 1 year, substituting the appraisal of the expert four-member Tender Opening Committee with its own."
(italicised matter emphasised in the original; emphasis in bold italics supplied)
26. The abovementioned statements of law make it amply clear that the author of the tender document is taken to be the best person to understand and appreciate its requirements; and if its interpretation is manifestly in consonance with the language of the tender document or subserving the purchase of the tender, the Court would prefer to keep restraint. Further to that, the technical evaluation or comparison by the Court is impermissible; and even if the interpretation given to the tender document by the person inviting offers is not as such acceptable to the constitutional court, that, by itself, would not be a reason for interfering with the interpretation given."
27. The ratio of the decisions of the Hon'ble Supreme Court as noticed in the above-noted cases, is to the effect that the owner or the employer of a project having authored the tender document is the best person to understand and appreciate its requirement and interpret its documents. A constitutional Court is to defer to this understanding and appreciation of the tender documents unless there is malafide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. Even if the interpretation of a tender document as projected by the employer, is not acceptable to a constitutional Court, that, by itself; would not be a reason for interfering with the interpretation so projected by the employer. It also further stipulates that if two interpretations are possible then the interpretation of the employer, must be accepted. The said decisions lay down that the interference of a Court would be only to prevent arbitrariness, irrationality, bias, mala fide, or, perversity.
28. Applying the ratio of the decisions of the Hon'ble Supreme Court, noticed hereinabove, to the facts of the present case; we do not find any material to accept the contentions of Mr. Deka, learned counsel for the appellant Association, that the technical bid P a g e | 20 evaluation criteria set-out in the Notice Inviting Tender(NIT), dated 15.02.2024, is, in any manner, arbitrary, and/or, to have been so prescribed beyond the power conferred upon the authorities of the Tezpur University. The learned Single Judge in the order, dated 16.05.2024, passed in WP(c)956/2024, had examined the contentions raised by the appellant Association in this connection and had rightly rejected the same.
29. In view of the above, we having not found any arbitrariness in the prescription of the technical bid evaluation criteria as prescribed in the Notice Inviting Tender(NIT), dated 15.02.2024, we are, therefore, not persuaded by Mr. Deka, learned counsel for the appellant Association, to take a contrary view than that was so taken by the learned Single Judge in the impugned order, dated 16.05.2024, passed in WP(c)956/2024.
30. A perusal of the conclusions drawn by the learned Single Judge in the order, dated 16.05.2024, in WP(c)956/2024, would go to reveal that the same was so drawn by the learned Single Judge relying upon the relevant provisions of law holding the field and there is no perversity, therein. Further, the view taken by the learned Single Judge being based on law holding the field; we are of the considered view that the same is a plausible view and hence, would not call for any interference in the present intra-Court appeal.
31. In this connection, reliance is placed on the decision of the Hon'ble Supreme Court in the case of Airport Authority of India v. Pradip Kumar Banerjee, reported in 2025 SCC OnLine SC 232, wherein, it has been held by the Hon'ble Supreme Court that in an P a g e | 21 intra-Court appeal, the finding of fact of the learned Single Judge, unless such finding is concluded by the appellate Bench to be perverse, would not be called to be disturbed. It has been further held that merely because another view or a better view is possible; there should be no interference with or disturbance of the order passed by the learned Single Judge unless both sides agree for a fairer approach on relief.
32. In view of the above position, we are of the considered view that the impugned order, dated 16.05.2024, passed by the learned Single Judge in WP(c)956/2024, would not warrant any interference.
33. In view of the above discussions, the instant writ appeal is held to be devoid of any merit and accordingly, the same stands dismissed. However, there shall be no order as to costs.
JUDGE CHIEF JUSTICE Comparing Assistant