Andhra HC (Pre-Telangana)
M/S. S.S.C Jv, A Joint Venture Company ... vs The Hyderabad Metropolitan ... on 15 October, 2014
Author: Ramesh Ranganathan
Bench: Ramesh Ranganathan
THE HONBLE SRI JUSTICE RAMESH RANGANATHAN
WRIT PETITION NO.15862 of 2014 and batch
15-10-2014
M/s. S.S.C JV, a Joint Venture Company comprising of M/s. Seven Hills
Buildcon Private Limited, M/s. Creative Solutions and M/s. S.S. Multi Services
rep., by its authorized signatory, Mr.
Nimesh Rathod..Petitioner
The Hyderabad Metropolitan Development Authority rep., by its Commissioner,
having its office at Bloc A, District Commercial Complex, Tarnaka, Secunderabad
and others..Respondents
Counsel for the petitioner: Sri S. Niranjan Reddy
Counsel for respondent No.1 to 3: Sri M. Surender Rao, Learned
Senior Counsel, appearing for Sri Y.
Ravindra, Counsel for
respondents 1 to 3.
Counsel for respondent No.4:Sri C.V.Mohan Reddy, Learned
Senior Counsel, appearing for Sri Venkateswara Rao
Gudapati,
Counsel for respondent No.4.
<GIST:
>HEAD NOTE:
? Citations:
1)Judgment of the Supreme Court in Civil Appeal No.5898 of 2012 dated
17.08.2012
2) (2007) 14 SCC 517
3) (2005) 6 SCC 138
4) (2010) 14 SCC 253
5) (2012) 6 SCC 464
6) (1990)3 SCC 280
7) (2000) 1 SCR 505
8) (2006) 10 SCC 236
9) 1990 4 JT 601
10) 1985 8 SCR 909
11) AIR 1996 SC 51
12) 2005 7 JT 214
13) 1991 1 JT 605
14) 2004 Suppl 1 JT 502
15) AIR 1996 SC 11
16) [1996] 2 SCC 405
17) [1995] 1 SCC 478
18) (1999) 1 SCC 492
19) AIR 2005 SC 469
20) AIR 2007 SC 437
21) (2008) 16 SCC 215
22) [1981] 1 SCC 568
23) [1997] 1 SCC 738
24) 2004) 4 SCC 714
25) (2003) 5 ALD 87 (DB
26) (2006) 10 SCC 1
27) (2007) 8 SCC 1
28) (1973) 2 SCC 836
29) (1993) 2 SCC 279
30) (1995) 5 SCC 482
31) (2009)6 SCC 171: (2009)2 SCC (Civ) 803
32) (1980)4 SCC 1
33) 2014(2) ALD 480 (DB)
THE HONBLE SRI JUSTICE RAMESH RANGANATHAN
WRIT PETITION NO.15862, 15863 AND 15864 of 2014
COMMON ORDER:
WRIT PETITION NO.15863 of 2014:
The petitioner is a Joint Venture company promoted by M/s. Seven Hills Buildcon Private Limited, M/s. Creative Solutions and M/s. S.S.Multi Services. The first respondent is a statutory authority constituted under the provisions of the Hyderabad Metropolitan Development Authority Act, 2008. The second respondent is a 100% subsidiary of the State Government and undertakes infrastructure development as a commercial venture. The third respondent is the Joint Venture of respondents 1 and 2 and is involved in the development of the Nehru Outer Ring Road. (ORR for short). The fourth respondent is the successful tenderer to whom the subject contract was awarded.
The third respondent issued a notice on 25.03.2014, for collection of user fee through user fee collecting agency, inviting tenders on the basis of competitive bidding for the Nehru Outer Ring Road stretch from Pedda Amberpet (KM 96+650) to Shamirpet (KM 61+100) via Shamshabad, Narsingi, Patancheru, Dundigal and Medchal for a length of 119.450 KMs (with a diversion of about 3 KM at Kandlakoya (Near Medchal) on NH.44 (Interchange) of Nehru Outer Ring Road, Hyderabad including the link road from Gachibowli to Narsingi. The bid invitation, (hereinafter referred to as Notice Invitation Tender, for short NIT), records that the 3rd respondent was entrusted with the development and management of Nehru ORR, entrusted or vested in it by the Government of A.P and HMDA; and they were inviting bids from eligible companies, co-operative societies and registered partnership firms for collection of the user fee for the said section of Nehru ORR. User fee, on the Nehru ORR, was to be collected at 17 inter-change locations (Toll plazas). It was stated in the NIT that the contract would be for a period of 18 months; that HGCL reserved its right to extend the contract period for a maximum period of 6 months after expiry of 18 months (original period of contract); the bidder had to pay 1.25 times (25% extra of the licence fee i.e., the total amount payable by the bidder to the HGCL including the premium) during the extended period; the premium amount quoted by the bidders would be the sole criteria for their selection; and the premium amount, quoted by the bidder per month, was to be paid by him to HGCL in addition to the amounts, shown in column No. 3, payable for the stretch.
The earlier NIT, issued in the month of January, 2012, had resulted in the subject work being awarded in favour of M/s. P.K. Hospitality Services Pvt. Ltd and the said contract expired, as a result of efflux of time, on 25.03.2014. The subject NIT dated 25.03.2014 stipulated the last date for purchase of the bid documents as 25.04.2014, and the last date for submission of bids as 26.04.2014 upto 15.00 hours. The technical bids were stipulated to be opened on 26.04.2014 at 15.30 hours. The financial bids were to be opened later on a date to be notified separately to the technically successful bidders. In the pre-bid meeting held on 09.04.2014, several queries were raised and discussed by the prospective bidders.
The bidding was contemplated to be a two stage process with bidders being required to submit two envelopes one containing the technical bids and the other containing the financial bids. The Invitation to Bid (ITB for short) envisaged that, after the technical bid envelope was opened, it would be assessed basing on the grading/marking of 100 points; bids of only those who secured 75 points, from out of 100 points, would be deemed to be responsive; and it is only their financial bids which would then be opened by the third respondent. Nine bidders participated in the bidding, and their technical bids were opened.
The petitioner claims to have quoted a financial bid of Rs.4.45 Crores per month. It is their case that, since they had complied with the eligibility criteria, had demonstrated their net worth as Rs.43.12 Crores, and had complied with the other tender conditions, they were expecting receipt of intimation of the date of opening of their financial bid; on 02.06.2014 they came to know that the third respondent had disqualified six of the nine bidders, including themselves, without intimation; only three bidders were called in a clandestine manner on 02.06.2014, and their financial bids were opened; and the work was secretly awarded to a bidder who had quoted a price, which was 35% lower than the bid of the petitioner, of Rs.3.92 crores per month.
The petitioner filed W.P.No.15208 of 2014 to declare the action of the respondents, in eliminating them at the technical bid evaluation stage and in, consequently, not opening their price bid pursuant to the bid notice dated 25.03.2014, as arbitrary and illegal. They also sought a direction to declare the action of the respondents, in abruptly opening the price bids of only three of the nine bidders, as illegal and arbitrary. The petitioner submits that, when W.P.No.15208 of 2014 came up for hearing on 04.06.2014, the third respondent had informed the Court that the petitioner was disqualified as they were allotted 24.12 points as against the required 75 points; and they did not have the required tolling experience, and experience in installation of tolling equipment, for the financial years 2010-11, 2011-12 and 2012-13. Reference is made by the petitioner to a note of the third respondent to contend that, as one of the J.V. Partners of the petitioner i.e. M/s. Creative Solutions were, at an earlier point of time, the vendors for the existing contractor, their experience was not taken into consideration.
It is the petitioners case that they possessed the prescribed experience stipulated in the bid document, and had furnished requisite proof thereof; there was no reason to treat their bid as non-responsive; basing on the audited reports, a turnover certificate was issued by the Chartered Accountant in respect of their J.V. Partner S.S. Multi Services which was in the business of collecting user fees; the certificate disclosed collection of user fees as follows: a) 2010-11 Rs.355.50 lakhs; b) 2011-12 Rs.1905.81 Lakhs; c) 2012-13 4385.29 Lakhs; and d) 2013-14 6646.60 Lakhs; M/s. Creative Solutions, another of their J.V. partners, had furnished their certificate of experience in installing and commissioning toll collection systems at different Toll Plazas of the Hyderabad Outer Ring Road, and they possessed the experience prescribed in the eligibility criteria; while points, less than the maximum, could have been allotted even on the most critical method of assessment, recording zero points indicated that the documents, pertaining to eligibility criteria, were not considered by the third respondent; their bid was rejected summarily for oblique reasons; surprisingly 4.12 points were awarded for qualification of key personnel when, in fact, the qualification of such key personnel was not even furnished as it was not required; they had merely given an undertaking that the list of key personnel would be given as per Schedule V, if they were awarded the contract; the assessment and evaluation, conducted by the third respondent, was farcical; points were allotted randomly without considering the documents submitted by them; the endeavour of the third respondent was to eliminate them for illegal, perverse and extraneous reasons; the note circulated by the third respondent, during the course of hearing of W.P. No.15208 of 2014, records that M/s.Creative Solutions were the vendor of the existing contractor at an earlier point of time; this shows that, though they had the experience of installation of equipment, they were sought to be barred from participation only because they had installed the equipment for the existing contractor.
Among the grounds, raised by the petitioner in challenge to the rejection of their bid, is that they were entitled to be informed regarding the points or marks allotted to them, and for revaluation or review thereof in case such allotment was discovered to be arbitrary and unreasonable; the grading system, as devised by the third respondent, is flawed, unsustainable, and could not have been considered either for qualifying or disqualifying the bidders as it contemplated allotment of upto 15 points or marks for furnishing details which were required to be furnished only after the successful bidder was issued the letter of award; zero points were allotted to the petitioner in respect of three of the criteria, when the documents submitted by them show that they had fulfilled the criteria; strangely 4.12 points were allotted to them, in respect of one of the criteria, where no documents had been submitted as they were not required to be furnished; points were awarded randomly, whimsically and with the sole intention of eliminating them, so as to favour the pre-selected bidder; allotment of points had no correlation to the documents submitted by them; the arbitrary action of the third respondent would entail severe financial loss to the State exchequer given the fact that their bid was 35% higher than the bid submitted by the successful bidder; several other bidders were also disqualified arbitrarily by the third respondent, though they had quoted a price much higher than the successful bidder; the third respondent had acted unreasonably and arbitrarily, and had failed to adhere to the rules of natural justice; they had caused substantial loss not only to the petitioner but also to the State exchequer; the third respondent has not acted in public interest; their action is malafide, illogical and perverse, and is apparently aimed at achieving some ulterior purpose; the third respondent had acted unreasonably in ousting the petitioner to the detriment of the State exchequer; they had acted discriminatorily, and had unconstitutionally denied the legitimate expectations of the petitioner; the petitioners right under Articles 14 and 19 of the Constitution of India have been infringed; the action of the third respondent is so outrageous, in its defiance of logic and of accepted moral standards, that no sensible person who had applied his mind, to the question to be decided, could have committed such an act; the action is such that no authority, properly directing itself on the relevant law and acting reasonably, could have thus acted; the action of the third respondent is apparently aimed at eliminating competitive bidders, so that the contract could be awarded to a pre-selected bidder, earning far less revenue than what can be earned; the petitioners bid ought to have been treated as responsive, and their financial bid should have been considered as it would benefit the public exchequer; and the grading system devised by the third respondent is flawed and unreasonable. The petitioner would also contend that, if the year 2013-14 is taken into consideration, they would qualify both for tolling experience and tolling equipment; the thirty points, prescribed for tolling experience and tolling equipment respectively, should have been distributed for the three preceding years equally; if either of the aforesaid criteria had been adopted, they would have qualified at the technical evaluation stage; and their financial bid would have been opened along with the successful tenderer.
The Hyderabad Growth Corridor Limited invited tenders, by Notice dated 25.03.2014, for collection of user fee through a user fee collecting agency for the Nehru Outer Ring Road stretch from Peddamberpet KM 96+650 to Shamirpet KM 61 +100 for a length of 119.450 KM. The relevant dates and events are listed as under:
1. Bid Invitation 25.03.2014
2. Pre-Bid meeting 09.04.2014
3. Addendum No.1 09.04.2014 Requesting to submit pre-bid meeting queries in writing by 11.04.2014.
4. Addendum No.2 23.04.2014 Last date of receipt of bids extended upto 6.5.2014.
5. Addendum No.3 26.04.2014 Published 13 Addendum and 8 clarification to queries.
6. Addendum No.4 05.05.2014 Last date of receipt ofbids extended upto 16.05.2014. 4 Addendums and 38 clarifications to queries were published.
7.
Technical Bids opening 16.05.2014 9 Bids were received and opened.
8. Financial Bids Opening 02.06.2014 3 Bidders qualified and their financial bids were opened.
9. Letter of Acceptance issue 09.06.2014 In favour of M/s.Eagle Infra India Ltd.
10. Bank Guarantee 16.06.2014 In favour of HGCL.
The petitioner was disqualified at the technical bid evaluation stage on the ground that they did not secure the minimum required 75 points as per Annexure-V Appendix-1. The counter-affidavit filed by the official respondent discloses that the petitioner had secured only 24.12 points from out of 100 points, 20 points for net worth, zero points for approach and methodology, 4.12 points for key personnel and zero points for both tolling experience and installation respectively. On the ground that they were technically disqualified, the petitioners financial bid was not opened.
Elaborate oral and written submissions were made by Sri S. Niranjan Reddy, Learned Counsel for the petitioner. Sri M. Surender Rao, Learned Senior Counsel, put forth his submissions on behalf of respondents 1 to 3 and Sri C.V.Mohan Reddy, Learned Senior Counsel, on behalf of the 4th respondent. Written arguments were also filed on behalf of respondents 1 to 4. It is convenient to examine the submissions, of Counsel on either side, under different heads.
I. SCOPE OF JUDICIAL REVIEW IN MATTERS RELATING TO ACCEPTANCE OF TENDER OR AWARD OF WORK:
Before examining the contentions, urged by Counsel on either side on merits, it is useful to briefly take note of the scope of judicial review in evaluation of tenders and in award of contracts. The actions of the State are amenable to judicial review only to the extent that they must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State or its instrumentalities act reasonably, fairly and in public interest in awarding the contract, interference by the Court is limited. (M/s. Michigan Rubber (I) Ltd. v. State of Karnataka ). The limited question that has to be considered, in a writ petition filed by the unsuccessful tenderer, is whether the authority had acted unreasonably in taking the decision to reject the tender. Before interfering in tender or contractual matters, in the exercise of its power of judicial review, the Court should pose to itself the following questions : i) Whether the process adopted or decision made by the authority is malafide or is intended to favour someone or the process adopted or the 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 the relevant law could have reached'; and ii) Whether public interest is affected. If the answers are in the negative, there should be no interference in proceedings under Article 226 of the Constitution of India. (Jagdish Mandal v. State of Orissa ; M/s. Michigan Rubber (I) Ltd.1; Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd. ; Himachal Pradesh Housing and Urban Development Authority v. Universal Estate ; and Tejas Constructions & Infrastructure (P) Ltd. v. Municipal Concil, Sendhwa ). In the absence of allegations of malafides in their conduct, in refusing to accept the best offer, the Court must proceed on the footing that the State or its instrumentalities have acted bonafide. (Star Enterprises v. C.I.D.C. of Maharashtra Ltd. ).
The award of contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision, considerations which are paramount are commercial considerations. (Air India Ltd. v. Cochin International Airport Ltd ). But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. The Court can examine the decision making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. (Air India Ltd.7). While contractual matters are not beyond the realm of judicial review, its application is limited (Noble Resources Ltd. v. State of Orissa ; Indian Oil Corpn. Ltd. v. Amritsar Gas Service ; and LIC of India v. Escorts Ltd. ) primarily to the infirmity in the decision making process, and whether it is reasonable and rational or arbitrary and in violation of Article 14 of the Constitution of India. (Sterling Computers Ltd v. M & N Publications Ltd ). Courts can examine the award of contract, by the Government or its agencies, to prevent arbitrariness or favouritism. (Noble Resources Ltd.8; Binny Ltd. v. V. Sadasivan ; G.B. Mahajan v. Jalgaon Municipal Council ; Directorate of Education v. Educomp Datamatics Ltd. ).
There are inherent limitations in the exercise of judicial review of contractual powers as the Government must have the freedom of contract and a free-play in the joints. The duty to act fairly will vary in extent, depending upon the nature of cases to which the said principle is sought to be applied. The State has the right to refuse the lowest or any other tender, provided it tries to get the best person or the best quotation, and the power to choose has not been exercised for collateral purposes or in infringement of Article 14. (Tata Cellular v. Union of India ; Tejas Constructions & Infrastructure (P) Ltd.5). This Court must ever remain conscious that, while exercising its jurisdiction under Article 226 of the Constitution of India, it does not sit in appeal over the decision of the competent authority in rejecting the petitioners tender. The power of judicial review, in respect of contracts entered into on behalf of the State, primarily involves examination of the question whether there was any infirmity in the decision-making process and, if such process was reasonable, rational and non-arbitrary, the Court would not interfere with the decision.(Sterling Computers Ltd.11; Tejas Constructions & Infrastructure (P) Ltd.5). In the matter of formulating conditions of a tender document, and in awarding a contract, greater latitude is required to be conceded to the State authorities. Unless the action of the tendering authority is found to be malicious, interference by Courts is not warranted. (M/s. Michigan Rubber (I) Ltd.1). If a reasonable procedure has been followed, the decision should not be challenged except on the Wednesbury principle of unreasonableness (Delhi Science Forum. v. Union of India ) and, unless the decision is so unreasonable that no sensible person would have arrived at such a decision, it should not be upset. (New Horizons Limited and Anr. v. Union of India ).
Commercial transactions, of a complex nature, involve balancing and weighing of all relevant factors and a final decision is taken on an overall view of the transaction. (Air India Ltd7). 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. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. The limited scope of judicial review by the High Court envisages examination of the question whether there is any material irregularity in the decision making process or whether the decision to reject the tender is irrational, unreasonable or arbitrary. If the decision relating to the award of contract is bonafide and in public interest, Courts will not 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 invoked to protect private interest at the cost of public interest or to decide contractual disputes. (Jagdish Mandal2; Sterling Computers Ltd11; Tata Cellular15; Raunaq International Ltd. v. I.V.R. Construction Ltd. ; Air India Ltd.7; Association of Registration Plates v. Union of India ; and B.S.N. Joshi v. Nair Coal Services Ltd. ; Siemens Public Communication Networks (P) Ltd. v. Union of India ). The High Court should normally exercise judicial restraint unless illegality or arbitrariness, on the part of the employer, is apparent on the face of the record. (B.S.N. Joshi20; Jagdish Mandal2). The purpose of judicial review is to check whether the choice or decision is made 'lawfully' and not to check whether the choice or decision is 'sound'. 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 to persuade courts to interfere by exercising the power of judicial review, should be resisted. (B.S.N. Joshi20).
The court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded. If the Government has acted fairly, even if it has faltered in its wisdom, the court cannot, as a super auditor, take them to task. The function of judicial review is limited to testing whether the action has been fair and free from the taint of unreasonableness, and has substantially complied with the norms. (Fertiliser Corporation Kamgar Union (Regd.), Sindri v. Union of India ; Raunaq International Ltd.18). There are inherent limitations in the exercise of the power of judicial review. The right to choose cannot be considered as an arbitrary power. Judicial quest has been to find the right balance between discretion to decide matters and the need to remedy any unfairness. (Tata Cellular15; Raunaq International Ltd.18). Judicial review of contractual transactions by Government bodies is permissible only to prevent arbitrariness, favouritism or use of power for collateral purposes. (Asia Foundation & Construction Ltd v. Trafalgar House Construction (I) Ltd ).
While examining and scrutinising the decision-making process, the facts of a given case may be needed to be appreciated as, otherwise, the decision cannot be tested on grounds of illegality, irrationality or procedural impropriety. To the limited extent, of scrutinising the decision-making process, it is open to the court to review the facts evaluated by the decision-maker. (State of U.P. v. Johri Mal ; Noble Resources Ltd.8). In examining the rival contentions on merits, it is necessary for this Court to refer to the tender conditions, and to the construction placed thereon by the Evaluation Committee. Bearing these aspects in mind, let us now examine the contentions urged by Counsel on either side.
II. SHOULD A RATIONAL METHOD, APART FROM THE CONDITIONS SPECIFIED IN THE BID DOCUMENT, HAVE BEEN FOLLOWED FOR AWARDING 30 MARKS UNDER THE HEADS TOLLING EXPERIENCE AND EXPERIENCE IN INSTALLATION OF TOLLING EQUIPMENT?
Sri S. Niranjan Reddy, Learned Counsel for the petitioner, would submit that while, in relation to financial capacity, the minimum eligibility is specified in clear and specific terms, in relation to both tolling experience and installation experience, the tender document specifies only a maximum eligibility for getting complete weightage of 30 marks for which ceiling levels are prescribed; quite like the approach adopted, in relation to qualification and experience of key personnel, the authorities ought to have adopted any rational method for awarding 30 marks; failure to do so has resulted in a discriminatory approach being adopted, thereby vitiating the decision making process; the tenders were invited with the sole objective of achieving maximum revenue, which is specified to be the sole criteria for awarding tenders; even in respect of technical qualifications, the authorities have been given latitude to state that bidders, securing 75% of the overall weightage, would be entitled to participate in the financial bids; this clearly shows that the authority intended to have an elastic approach with regards technical qualifications; and resorting to all-or-nothing method, of granting weightage, runs contrary to the spirit of the tender.
Sri M. Surendra Rao, Learned Senior Counsel appearing for respondents 1 to 3, would submit that the petitioners contention that points should have been awarded, under the heads IV and V in Annexure V on a proportionate basis as is quoted / evaluated under the criteria at head III, is not tenable; in its counter-affidavit, respondent No. 3 has stated that satisfaction of the technical eligibility criteria was examined by an expert committee; during the financial year 2010-11, the petitioner did not have the minimum tolling experience of Rs. 3.65 crores towards user fee collection; the petitioner scored only 24.12 points, from out of 100, as against the qualifying score of 75 points; the clarification, of the pre-bid queries at Sl. No. 38, makes it clear that, for securing weightage of 30 marks, the bidder should have the experience of collecting Rs. 3.65 crores per annum at a single toll point / toll plaza during the last three financial years (all three years individually at Rs. 3.65 crores per annum); on the mandatory criteria of tolling experience / toll collection of Rs. 3.65 crores, during each of the last three financial years immediately preceding the year of the bid being satisfied, a bidder would be entitled to be awarded 30 points; if the bidder did not satisfy the said criteria, in any one of the three preceding financial years, he would be awarded only zero points; the petitioner did not furnish the experience certificate in respect of installation of toll equipment, and the certificate produced by them was only for the year 2013-14; they did not furnish proof of having experience in installation of tolling equipment, during any one year, in the last three financial years immediately preceding the year of the bid; they were, therefore, awarded zero points on that score; the points scored by the petitioner, under all the five criteria together, was only 24.12 points; no sub-criteria was prescribed for allocation of marks, on a proportionate basis, for any of the evaluation criteria except the criteria at Sl. No. 3; for the financial years 2010-11, 2011-12 and 2012-13, the bidders were required to be aware of the terms and conditions laid-down in the bid document, and the subsequent addendums and clarifications issued by HMDA which were put up on its web site; the successful bidder had the prescribed experience in toll collection (based on the certificates produced by them) as follows: (1) 2010-11 -Rs.18.88 crores; (2) 2011-12- Rs.19.54 crores; (3) 2012-13 -Rs.19.31 crores; the petitioners contention that, for tolling experience, marks should be awarded proportionately, depending on the requirement of each year being met, is not tenable; the petitioner has not substantiated that the respondent authorities had acted irrationally or contrary to the bid conditions; their submissions are based only on assumptions and presumptions, and stands unsubstantiated; and there is no irrationality or illegality in the decision making process.
Sri C.V. Mohan Reddy, Learned Senior Counsel appearing for the 4th respondent, would submit that the petitioner cannot question the methodology adopted by the respondent authorities; their contention that the technical bid should be evaluated apportioning the stipulated thirty marks, year-wise for the three preceding years, is not tenable; accepting the said contention would require rewriting of the bid document, which exercise this Court would not undertake much less in proceedings under Article 226 of the Constitution of India; the bid conditions were understood in the same manner by all stake holders, including the bidders and the bidding authorities; these conditions were uniformly applied to all the bidders; the petitioner has also understood the bid conditions in the same manner and has, therefore, not raised any contention, regarding year-wise apportionment of marks, in the writ affidavit; this contention, raised in the subsequent pleadings, is merely an afterthought; a pre-bid meeting was held on 09.04.2014; if, really, the petitioner had any doubts, in understanding the terms and conditions of the bid document, they could have sought clarification in the said pre- bid meeting; having failed to attend the pre-bid meeting, and seeking clarification of the methodology to be followed in evaluation of the technical qualifications, the petitioner cannot now turn around and, for the first time before this Court, place a different interpretation on the bid documents.
In their reply affidavit, the petitioner submitted that NIT did not stipulate that all, or any of, the 5 eligible criteria was mandatory or were required to be fulfilled in its entirety. They admitted that they were deficient in tolling experience in respect of the year 2010-11. They contended that the marking system, adopted by respondent No.3, was defective and they should have been given proportionate marks; the very concept of marking system contemplated that the bidder may not secure full marks in any, or all, of the five criteria prescribed by respondent No. 3; they were entitled to be considered as eligible if they secured a cumulative score of 75 marks; and respondent No. 3, after issuance of NIT and after receipt of the bids, had changed track and had decided to award zero marks in the event the bidder did not meet any of the five criteria, save the prescribed criteria of qualifications of the personnel proposed to be appointed.
The petitioners grievance is that, instead of awarding zero marks under each head, the respondents ought to have awarded proportionate marks depending on the bidders compliance of each of the technical evaluation criteria for each of the three financial years. Clause 16(i)(b) of the ITB stipulate that weightage would be given as per major qualifying criteria given in Appendix-I - Annexure-V. The said annexure reads as under:
Annex-V Reference clause 1(ii)(a) and C (iv & v) of Section-II The points given to evaluation criteria are:
Evaluation Criteria for Technical Proposal S. No. Description Points I Net Worth of the Bidder 20 II The approach and methodology proposed for USER Fee Collection 5 III Qualification & Experience of the Proposed Key Personnel 15 IV Tolling experience of the bidder/partner of the bidder having minimum 26% stake in the bidder firm.30
V Experience in Installation of Tolling equipment & their Maintenance.30
Total 100 The weightage points given to evaluation sub-criteria for qualification and competence of key staff are:
Weightage (%) General Qualification 50 Relevant Experience and Adequacy for the Assignment 40 Permanent Employment with the firm 10 100 _________Minimum Technical Score required to pass is : 75 Points.
The Technical proposal should score at least 75 points out of 100 to be considered for financial evaluation. Financial proposals of the firms securing less than 75 points in Technical Evaluation shall not be opened.
While the fifteen points stipulated for Condition III regarding qualification and experience of the proposed key personnel, is again sub- divided into three different heads, and weightage is given for each of the sub-head, no such sub-criteria is prescribed either for tolling experience or for experience in installation of tolling equipment. The respondents cannot, therefore, be said to have acted arbitrarily in awarding zero marks for such of those bidders who did not comply with the requirements, instead of awarding points between zero to
30. Accepting the contention of Sri S.Niranjan Reddy, Learned Counsel for the petitioner, that the respondent authorities ought to have adopted some rational method of prescribing sub-criteria for each of the criterion of tolling experience and experience in installation of tolling equipment, would require the respondents to adopt a procedure not provided for in the tender conditions. The very fact that the tender conditions prescribe sub-criteria and weightage points only for the head qualification and experience of the proposed key personnel, and not for any of the other criteria, goes to show that the tendering authority did not intend prescribing any sub-criteria for the heads tolling experience and experience in installation of tolling equipment. The respondents were, therefore, justified in awarding 30 marks for those who fulfilled the criteria in its entirety, and zero marks for those who did not.
The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. (Air India Ltd.7). In formulating conditions of a tender document, and in awarding a contract, greater latitude is required to be conceded to the State authorities. (M/s. Michigan Rubber (I) Ltd.1). It is not open to the competent authority to read into such documents, terms and conditions which do not exist therein. (Siemens Public Communication Networks (P) Ltd.21). Prescription of a new criteria not expressly provided for in the tender conditions, that too without informing the tenderers thereof, would be an arbitrary exercise of power, contrary to the principle of legal certainty, and in violation of Article 14 of the Constitution of India. While the tender conditions, which stipulate either zero or 30 points if the prescribed conditions are fulfilled/or not fulfilled in its entirety, does appear harsh, it would be wholly inappropriate for this Court to prescribe sub-criteria for these two heads also, or to direct the respondents to do so, as that would amount to rewriting the conditions stipulated in the bid document, which exercise this Court would not undertake in judicial review proceedings under Article 226 of the Constitution of India.
III. SHOULD THE FINANCIAL YEAR 2013-14 HAVE BEEN INCLUDED AMONG THE IMMEDIATELY PRECEDING THREE FINANCIAL YEARS?
Sri S. Niranjan Reddy, Learned Counsel for the petitioner, would submit that the petitioners are aggrieved by the action of the respondents in technically disqualifying them, and the procedure followed by them in this regard; the tender conditions unambiguously state that one of the relevant years, for the purpose of both tolling experience and experience in installation of tolling equipment, is the year 2013-14; this is evident from the difference in language used in respect of one of the qualification criteria viz. financial capacity as opposed to the other criteria; the contention that Year in Schedule VI means calendar year, and not financial year, is disproved by the language in clause IA(i), clause 17, and the instructions in Appendix-I - Annexure-II; the same language is used in Schedule VI, and hence the year of bid can only be the financial year; in a judicial review exercise, the Court is always concerned with the decision making process rather than the decision itself; the entire approach of the Authority was to assess the wrong years; the year 2013-14 has, admittedly, been excluded from consideration as is also evidenced by the counter- affidavit filed in the matter; and, since this goes to the root of the issue, the entire decision making process is flawed and is liable to be set aside.
Sri M. Surendra Rao, Learned Senior Counsel appearing for respondents 1 to 3, would submit that the technical bid of the petitioner was found not to meet the prescribed qualification criteria; the petitioner scored only 24.12 points as against the minimum required 75 points; their financial bid was, therefore, not opened; they did not score any points under heads IV and V relating to tolling experience, and experience in installation of tolling equipment and their maintenance, respectively; the petitioner, on their own showing, did not collect Rs. 3.65 crores per annum for the financial year 2010-11; their toll collection, for the said financial year was Rs.3.55 crores which is less than Rs. 3.65 crores; similarly they did not have experience in installation of tolling equipment in any of these three financial years; as the 3rd respondent considered experience, for these two heads, only for the financial years 2010-11, 2011-12 and 2012-13, the petitioner could not secure any points for tolling experience, and experience in installation of tolling equipment; the main issue which falls for consideration is the interpretation / construction of the phrase "during the last three financial years immediately preceding the year of bid in Appendix I - Annexure VI in respect of toll experience, and experience in installation of tolling equipment, respectively; the last date for submission of the bid was 16.5.2014; the year of the bid must, therefore, only be taken as the calendar year 2014; the word year, used with reference to tolling experience and experience in installation of tolling equipment in Appendix I - Annexure-VI, can only mean a calendar year; the three financial years, prior to the calendar year from 1-1-2014 to 31-12-2014, are the financial years 2010-11 to 2012-13; in evaluating the bids, with reference to the criteria at Sl.No.V of Appendix-I - Annexure-V, the documents relating to the financial years 2010-2011, 2011-2012 and 2012-2013 can alone be taken into consideration; the petitioners contention, that the word year of the bid mentioned in the two clauses in Annexure-VI - Appendix-I has been used synonymously with financial year, is not tenable; the respondents have used the words financial year wherever they wanted to use the said word; the words "the year of the bid" cannot be read as "financial year", as it would result in addition of words or giving it an unintended meaning; Para-1 II (A), on which reliance is placed by the petitioner, relates to financial capacity; the scope of the words "bid due date" in Clause 1.II(A) must be examined in contra-distinction to the words the year of the bid; para-1 II(A) cannot be imported while considering tolling experience, and experience in installation of tolling equipment, as the language employed in Appendix-I - Annexure-VI differs radically from the language employed in Para-1.II(A); Clause 17 relates to financial information for the purposes of evaluation; neither Clause 17(1) nor 17(2) are relevant for evaluation of tolling experience and experience in installation of tolling equipment; reliance placed by the petitioner on Appendix-I - Annexure-II is misplaced; instruction-IV of Appendix-I - Annexure-II should be read conjointly with Para 1 II(A); neither year 1 nor year 2 and so on, mentioned at instruction No.1 is of any help in construing the words "the year of bid"
occurring in Appendix-I - Annexure-VI; the last three financial years, immediately preceding the year of bid, can only mean the financial years 2010-11, 2011-2012 and 2012-2013; and the petitioners contention that, for the purpose of evaluation of his tolling experience and experience in installation of tolling equipment, the three financial years which should be taken into consideration are 2011-2012, 2012-2013 and 2013-2014 is not tenable.
Sri C.V. Mohan Reddy, Learned Senior Counsel appearing on behalf of the 4th respondent, would submit that the petitioner was awarded zero points in approach and methodology, as they did not submit approach and methodology for user fee collection for the project as required under Clause 16 (i)(c); with regards tolling experience, clause 16(i)(b) gives a weightage of thirty marks for technical qualification; the bidder was required to submit a certificate from the client, as proof of collection of Rs.3.65 crores at a single toll plaza, along with other documents; the petitioners contention that 2013-14 should be taken into consideration, and the preceding three years should be reckoned from the application due date of 16.05.2014, is not tenable; the year of bid, as per the bid invitation notice dated 25.3.2014, is a calendar year, and not the financial year; the very notice, which commenced the tender process, mentions Bid Notice No.322/DGM-VI/HGCL/User fee collection/2013-2014/3, dt: 25.03.2014; as such the bid date can only be 25th March, 2014; the preceding three financial years would then be 2010-11, 2011-12 and 2012-13; as the tender process commenced from 25.03.2014, the previous three financial years would not include 2013-14; and, as the bid invitation date is 25.03.2014, the last of the preceding three financial years is only 2012-13.
The construction to be placed on the words during the last three financial years immediately preceding the year of the bid, with regards both tolling experience and experience in installation of tolling equipment in Appendix 1 - Annexure VI, would determine whether or not the three immediately preceding financial years would include the financial year 2013-14. If the words the year of bid is understood as a financial year, and the relevant date is taken as the last date for submission of the bid i.e., 16.05.2014 which falls in the financial year 2014-15, the preceding three financial years would be 2011-12, 2012-13 and 2013-14. If, on the other hand, the words the years of bid is understood either to mean the calendar year 2014, or the bid document issued in March, 2014/bid notice dated 25.03.2014 are taken to be the relevant date which fall in the financial year 2013-14, the preceding three financial years would then be the years 2010-11, 2011-12 and 2012-13. It is not in dispute that, if the financial years 2010-11 to 2012-13 are taken to be the immediately preceding three financial years, the petitioner would be technically ineligible as they have, admittedly, not complied with the stipulated requirements both under the head tolling experience and experience in installation of tolling equipment during these three financial years. It is necessary, therefore, to refer to the relevant clauses of the bid invitation notice dated 25.03.2014 and the ITB.
Clause 1 (ii) [C] of the ITB requires the bidders to enclose with their Bid, to be submitted as per the format at Appendix-I, the Annexures and the documents referred therein. The documents referred to in clause (v) to (vii) are relevant and are:-
(v) Experience certificate in tolling from the concerned department in reference to Clause 16(b) and Annexure-VI of Appendix-I.
(vi) Experience certificate showing installation of tolling equipment from client in reference to Clause 16(b) and Annex-VI of Appendix-1;
(vii) Certified copies of qualification and experience certificates of key personnels with their CVs.
Clause 16 prescribes the procedure to be adopted for evaluation of bids. Clause (i), thereunder, relates to opening of the technical bid. Clause 16(i)(b) reads as under:
If any of the partner Company / firm holding share of more than 26% in the partnership firm having experience in tolling and installation of tolling equipment will be given a Weightage of marks in technical qualification. The Weightage will be given as per major qualifying criteria given in Appendix-I (Annex-V). The definition of tolling and installation of tolling equipment is given in Appendix-I (Annex-VI).
The definition of tolling experience and installation of tolling equipment, in Appendix-I - Annexure-VI, reads thus:-
Annex-VI Reference clause 16(i)(b) of Section-II Tolling Experience:-
As per the clause 16(i)(b), to get weightage of 30 marks for technical qualification (Annex-V) for tolling experience, the bidder or any of its partner firm must have collected the USER Fee of not less than Rs.3.65 Crores per Annum at any single toll point/toll plaza owned by a statutory body recognized by law of State Government/Central Government within India during last three financial years immediately preceding the year of bid.
(Certificate from the client for user fee collected at any single plaza should be submitted).
Experience in installation of Tolling equipment:
As per the Clause 16(i)(b), to get Weightage of 30 marks for technical qualification (Annex-V) for installation of tolling equipment experience, the bidder or any of its partner firm must have installed tolling equipment in at least 20 Toll Lanes in atleast 3 plazas owned by a statutory body recognized by law during any one year in the last three financial year immediately preceding the year of bid.
With regards tolling experience, and experience in installation of tolling equipment, an addendum/corrigendum was issued by the respondents as follows:
Tolling Experience:- As per the clause 16(i)(b), to get weightage of 30 marks for technical qualification (Annex-V) for tolling experience, the bidder or any of its partner firm must have collected the USER Fee of not less than Rs.3.65 crores per annum at any single toll point/toll plaza owned by Concessionaire having concession agreement with NHAI, a statutory body recognized by law of the State Government/Central Government within India during last three financial years immediately preceding the year of bid. (Certificate from the Client/ Concessionarire) for user fee collected at any single plaza should be submitted. Details of the Clients concession agreement with NHAI is to be submitted as documentary proof of evidence. ) Experience in installation of Tolling Equipment As per the clause 16(i)(b), to get weightage of 30 marks for technical qualification (Annex-V) for installation of tolling equipment experience, the bidder or any of its partner firm must have installed tolling equipment in at least 20 Toll Lanes (minimum) in at least 3 plazas owned by NHAI Concessionarire(s) / Statutory body recognized by law during any year of bid. (Certificate from the client(s) for installation of Tolling equipment should be submitted. Details of the Clients concession agreement with NHAI is to be submitted as documentary proof of evidence.) To get weightage of 30 marks for tolling experience for technical qualification, the firm should have collected Rs.3.65 crores per annum at any single toll point/toll plaza during last three financial years (All three years individually @ Rs.3.65 crores per annum.
and this addendum/corrigendum was kept on their web site.
As Sri S. Niranjan Reddy, Learned Counsel for the petitioner, places reliance on Appendix 1 - Annexure II and Clause 17 of the tender conditions, it is necessary to refer to these clauses also. Appendix-I, as is referred to in Clause 1(ii)[c] of the ITB, is the letter comprising the bid for collection of user fee, through user fee collection agency, on the basis of competitive bidding. By the said letter, the bidder was required to state that they had examined the bid document and understood its contents, and they would submit the technical and financial bid for the work. Para 3 of the said letter required the bidder to state that they shall make available to HGCL any additional information it may find necessary or require to supplement or authenticate the eligibility conditions laid down in the RFP.
Section-II of the Bid documents are the ITB. Clause 1(ii) thereof stipulates the qualification criteria for eligible bidders. Clause A thereunder deals with Financial Capacity, and reads as under:
A. Financial Capacity: the Bidders shall have a minimum Net Worth (the Financial Capacity) equal to or in excess of Rs.11.0 Crores. The Bidders shall have positive net cash accruals during any two years (no negative cash accruals) out of the last three (3) financial years preceding the Bid due date. Notwithstanding anything to the contrary contained herein, in the event that the Application Due Date falls within three months of the closing of the latest financial year of an Applicant, it shall ignore such financial year for the purposes of its Application and furnish all its information and certification with reference to the 3 (three) years, preceding its latest financial year. In case of partnership firm, the combined technical capability and net worth of those members, who have and shall continue to have an equity share of at least 26% (twenty six per cent) will be considered in proportion to their equity share holding in the partnership firms.
Information regarding the financial capacity of the bidder, as referred to in Clause 1(ii) A and C of the ITB, was required to be furnished in Annexure-II of Appendix-I. Instructions 1 to 6 thereunder are relevant and read thus:
Instructions:
1. The bidder shall attach copies of the balance sheets and financial statements for 3 (three years preceding the Bid Due Date). The financial statements shall:
(a) reflect the financial situation of the bidder and its partners where the bidder is relying on its partners financials;
(b) be audited by a statutory auditor/C.A. Firm (duly enrolled with ICAI); [c] be complete, including all notes to the financial statements; and
(d) correspond to accounting periods already completed and audited (no statements for partial periods shall be requested or accepted).
2. Net Cash Accruals shall mean Profit After Tax + Depreciation.
3. Net Worth shall mean Subscribed and Paid-up Equity + Reserves less Revaluation reserves + miscellaneous expenditure not written off + accrued liabilities.
4. Year 1 will be the latest completed financial year, preceding the bidding. Year 2 shall be the year immediately preceding Year 1 and so on. In case the Bid Due Date falls within three months of the close of the latest financial year, refer to Clause 17(ii).
5. The bidder shall also provide the name and address of the Bankers to the bidder.
6. The bidder shall provide an Auditors/C.A. Firm (duly enrolled with the ICAI) Certificate specifying the net worth of the bidder and also specifying the methodology adopted for calculating such net worth in accordance with Clause 1(ii)(A) of the RFP/Bid document.
Clause 17 relates to financial information for purposes of evaluation and reads thus:-
(i) the Bid must be accompanied by the Audited Annual Reports of the Bidder for the last 2 (two) financial years, preceding the year in which the Bid is made.
(ii) In case the annual accounts for the latest financial year are not audited and therefore the Bidder could not make it available, the Bidder shall give an undertaking to the same effect and the statutory auditor/C. A. Firm (duly enrolled with ICAI) shall certify the same. In such a case, the Bidder shall provide the Audited Annual Reports for three years preceding the year for which the Audited Annual Report is not being provided.
(iii) The Bidder must establish a minimum Net Worth of Rs.11.0 Crores (Rupees Eleven Crores only), as specified in Clause I.(ii) (A), and provide details as per format at Annex-II of Appendix-I. The information regarding financial capacity, as is referred to in clause 1(II)(a) and (c) of the ITB, is required to be furnished in Appendix 1 - Annexure II. Clause 17 also relates to financial information of the bidders. This information was called for to ascertain the net worth of the bidder, for which the prescribed points were 20 out of 100. The bid document makes a distinction between the financial information required to be provided to ascertain the net worth of the bidders, and the tolling experience stipulated in Appendix 1 - Annexure VI. Unlike financial information necessary to determine the net worth of the bidder, Clause 16(1)(b) relates to the weightage to be given for, and Appendix I Annexure VI the definition of, tolling experience and installation of tolling equipment. The points prescribed in Appendix 1 -
Annexure V, both for tolling experience and experience and installation of tolling equipment, is 30 each out of 100. If a tenderer does not secure any marks under either of these two heads, they would stand technically disqualified as they would then not have secured the minimum technical score required to pass i.e., 75 points out of 100. While Instruction 4 of Appendix 1 Annexure II uses the words year I will be the latest completed financial year preceding the bidding, Appendix I - Annexure VI uses the words during last three financial years immediately preceding year of bid both for tolling experience and experience in installation of tolling equipment. The very fact that the tender conditions, which has used the words financial year in Clause 17 and Instruction 4 of Appendix 1 - Annexure II, does not use the very same words in Clause 16(1)(b) or in Appendix 1 - Annexure VI and, instead, uses the words year of bid, shows that the words year of bid, used in Appendix 1 - Annexure VI, mean a calendar year, and not the financial year. While the words preceding the bidding, used in Instruction 4 of Appendix I - Annexure II, can be construed as the date of the bid, it would be wholly inappropriate for this Court to ignore the words year as used in Appendix 1 - Annexure VI, or to read the words preceding year of bid as preceding the bid, as it would result in omission of the word year in Appendix 1 - Annexure VI. Even if the year of the bid is construed to mean a financial year, the bid notice date of 25.03.2014 falls in the financial year 2013-14, and the three immediately preceding financial years would then be 2010-11 to 2012-13, and not include 2013-14.
The construction placed by the respondents on the words year of the bid, to mean the calendar year 2014, is a reasonable interpretation of the clauses referred to in Appendix 1 Annexure VI. Even if the construction placed on the said clause by Sri S. Niranjan Reddy, Learned Counsel for the petitioner, is also held to be a possible interpretation thereof, interference would still not be called for, as this Court would neither sit in appeal over the decision of the Expert Committee constituted for evaluation of tenders nor would it substitute its views for that of the said Committee. (Johri Mal24; Noble Resources Ltd.8). Often, when an evaluation committee of experts is appointed to evaluate offers, the expert committee's special knowledge plays a decisive role in deciding which is the best offer. (Union of India v. Laxmi Builders, Secunderabad ; Raunaq International Ltd.18). If two views are possible, and no malafides or arbitrariness is alleged or shown, there is little scope for interference with the view taken by the authorities in inviting tenders. (Reliance Airport Developers (P) Ltd. v. Airports Authority of India ; Siemens Public Communication Networks (P) Ltd.21).
It is necessary to note that the technical bids were evaluated by a committee consisting of the following officers:
1) Metropolitan Commissioner, HMDA - Chairman
2) Managing Director, HGCL - Member
3) Chief Engineer, HMDA - Member
4) Chief Engineer, Radial Roads - Member
5) Chief General Manager (Tech.), HGCL - Member Convenor
6) Chief Accounts Officer - Member This Court lacks the necessary expertise and would, therefore, not substitute its views for that of the expert committee in evaluating the technical capacity of the bidders to maintain the toll plaza. Where a clause in the tender document is capable of two equally reasonable interpretations, judicial restraint is in order even if the Court were to be satisfied that the construction, other than the one placed on the clause by the respondent, commends acceptance.
IV. IF THE FINANCIAL YEAR 2013-14 IS TAKEN INTO CONSIDERATION WOULD THE PETITIONER SATISFY THE TECHNICAL ELIGIBILITY CRITERIA?
Sri M. Surender Rao, Learned Senior Counsel appearing for respondents 1 to 3, would submit that, even if the financial years i.e., 2011-2012, 2012-2013 and 2013-2014 are taken as the relevant financial years, the petitioner would still not qualify based on the documents filed by them regarding toll collection during the year 2013- 14; in their additional counter-affidavit, respondents 1 to 3 had stated that, even if the experience of the petitioner in respect of toll collection for the financial year 2013-14 is taken into consideration, they would still not secure 75 points; the petitioner did not file proof of collection of Rs. 3.65 crores during the financial year 2013-14; the certificate of the Chartered Accountant does not meet the requirement in terms of the bid document; in terms of the conditions in Appendix I - Annexure VI, the petitioner was required to produce a certificate, from the client/concessionaire, regarding user fee collection at a single toll plaza; the petitioners contention that their toll collection, during the financial year 2013-14, was Rs.646.60 Lakhs is incorrect; the said statement was made adding toll collection for all the three financial years; the petitioner submitted other documents i.e., authorization for collection of toll / user fee; these authorizations / certificates, for collection of user fee / toll collection, also relate to a part of the financial year 2013-14; these authorizations are for different toll plazas, and not in respect of a single toll plaza; even if the toll collection for the financial year 2013-14, from the documents filed by the petitioner along with their bid, are added up it would only come to Rs.3,27,16,350; the petitioner would, therefore, have only secured zero points, on the criteria of toll collection experience, for the financial year 2013-14; the petitioner had installed tolling equipment for P.K. Hospitality Services in respect of ORR of HGCL during the financial year 2013-14; if the financial year 2013-2014 were to be taken into consideration, they would secure 30 points under the criteria of experience in installation of tolling equipment; and this submission is without prejudice to the contention of respondents 1 to 3 that the technical bid of the bidders was liable to be evaluated only on their experience relating to the financial years 2010-11, 2011-12 and 2012-13.
Sri C.V. Mohan Reddy, Learned Senior Counsel appearing on behalf of the 4th respondent, would submit that the petitioners contention, that they would qualify if the three year period is taken to be 2011-12, 2012-13 and 2013-14, is not tenable; even if 2013- 14 is taken into consideration, the petitioner would not qualify in tolling experience; the petitioner had submitted documents issued by some private party which cannot be taken into consideration; under Clause I (ii)(c)(vi), the certificate has to be obtained from the client/concessionaire and the same has to be filed; the petitioner has not filed any such document; their contention, that they were under the impression that the financial year 2013-14 would also be taken into consideration and they had filed documents to show that they satisfied the eligibility criteria for the year 2013-14, is not tenable; the turnover certificate filed by petitioner is only for the years 2010-11, 2011-12 and 2012-13; and the said certificate was issued on 06.11.2013 much before completion of the financial year 2013-14; the amounts collected by the petitioner, in any of the preceding three years (including 2013-14), are neither certified nor is it mentioned in any of the documents submitted along with the bid; as the letters of authorization do not pertain to any particular financial year, the bidding authority had taken the average of the amount payable per month, after dividing the amount mentioned in the authorization by 12 and had, thereafter, apportioned it to the respective financial years; the petitioner does not satisfy the tolling experience criteria even if 2013-14 is taken into consideration; and the respondent authorities had rejected the technical bid of the petitioner strictly in accordance with the terms and conditions of the bid documents.
In the additional counter-affidavit, filed by respondent No.3, it is stated that, even if the financial years 2011-2012, 2012- 2013 and 2013-2014 are taken to be the relevant three financial years, for the purpose of tolling experience, the petitioner would still not be entitled for weightage of 30 marks as the documents filed by them do not indicate that they had a toll collection of Rs.3.65 Crores from a single toll plaza in a single year; the certificate of the Chartered Accountant cannot be taken into consideration as the petitioners turnover, for the year ended 31-3-2014, was shown as Rs.10.75 Crores, and it was stated that it was subject to audit; it was also stated therein that "this certificate is produced on the basis of audited financial of the previous two years, and provisional financial as on 31- 3--
2014 (which is subject to audit)"; the said certificate, in so far as it relates to the year 2013-14, cannot be considered; the certificate, in Appendix-I - Annexure-VI read with Sl. No.10 of Addendum No.3 dt 26-4-2014, which was required to be produced is the certificate from the client / concessionaire for the user fee collected in any single plaza; it also mandates furnishing of details of the clients concession agreement; the certificate of the Chartered Accountant cannot, therefore, be taken as the basis for toll collection by the petitioner for the financial year 2013-14; the petitioner did not produce any certificate, as contemplated by Appendix I - Annexure VI and Sl.No.10 of Addendum - 3 dated 26.04.2014, to show that their toll collection, during the financial year 2013-2014, was Rs.3.65 crores and above; the respondent had examined the letters of authorization, for collection of toll, issued by three different statutory authorities enclosed along with the bid; from out of them the certificates dated 15-6-2012, 29-8-2012 and 23.4.2013 are alone relevant; the said authorizations are for different toll plazas, and not in respect of a single toll plaza; the certificate dated 15-6-2012 shows that the petitioner had authorization for collection of toll on the Gurgoan - Patader road K.M.10 (TP-2) for the period 11-4-2012 to 30-6-2013, at the contract amount of Rs.5,57,57,000/- per annum; from out of the said period, from 11-4- 2012 to 30-6-2013, only the three month period from 1-4-2013 to 30-6-2013 can be taken to be a part of the financial year 2013- 2014; Respondent No.3 has, therefore, taken the average contract amount for the period from 1-4-2013 to 30-6-2013 which, hardly, comes to Rs.1,39,01,069/-; the petitioner had an authorization for collection of Toll, on the Uklana - Tohana Munak Road (T.P. 22), for the period 1-10-2012 to 30-9-2013, for Rs.1,75,11,779/-; from out of this period, between 01.10.2012 and 30.09.2013, only the period from 1-4-2013 to 30-9-2013 would fall in the financial year 2013-14; the toll collection estimated for the period from 1-4-2013 to 30-9-2013, from out of the quoted rate of Rs.1,75,11,779/-, would then be Rs.87,79,974/-; this document dated 28.09.2012 does not also indicate that the petitioner had a toll collection of Rs.3.65 Crores or above, during the financial year 2013-2014, from a single toll point; similarly the letter of authorization dt 23-4-2013 shows that the petitioner was given authorization for toll collection on T.P.27 (Rohtak - Kharkhanda Delhi) at a quoted rate of Rs.1,07,10,000/- for the period from 24-4-2013 to 23-4-2014; this does not also show that they had toll collection of more than Rs.3.65 Crores, during the financial year 2013- 2014, from a single toll plaza; even if toll collections, from all the toll plazas handled by the petitioner for the financial year 2013-2014, are taken together into consideration the total toll collections from all the toll plazas, (authorization for which have been produced along with the bid documents), is only Rs.3,27,16,350/-; adopting any method, or even a liberal approach, the petitioner would not be entitled for any points for tolling experience; and they would, therefore, not get 75 points from out of 100 to qualify at the technical evaluation stage.
Standards applied by courts, in judicial review proceedings, must be justified by constitutional principles which govern the proper exercise of public power. Article 14 of the Constitution, which embodies the principle of "non-discrimination", is not a free- standing provision. It must read in conjunction with the rights conferred by other articles like Article 21 of the Constitution which includes "opportunity". The doctrine of "Level playing field", an important concept embodied in Article 19(1)(g) of the Constitution, provides space within which equally-placed competitors are allowed to bid so as to subserve larger public interest. Decisions or acts, which results in unequal and discriminatory treatment, would violate the doctrine of "level playing field". One of the important elements of the "rule of law" is legal certainty and if the act of the government, even in contractual matters, fails to satisfy the test of "reasonableness", then such an act or decision would be unconstitutional. When tenders are invited, the terms and conditions must indicate with legal certainty, norms and benchmarks. This "legal certainty" test is an important aspect of the rule of law. If there is vagueness or subjectivity in the said norms it may result in unequal and discriminatory treatment. It may also violate the doctrine of "level playing field". (Reliance Energy Ltd. v. Maharashtra State Road Development Corpn. Ltd. ).
While use of different words, financial year, year of the bid, bid due date, preceding the bidding, in different parts of the tender documents, could have been avoided to satisfy the principle of legal certainty, it is evident that the contention that the relevant financial year would include the financial year 2013-14 has been raised only during the course of the hearing of this Writ Petition, and the petitioner does not appear to have suffered from any doubt, prior thereto, that the three immediately preceding financial years did not include the financial year 2013-14, as they did not submit the required documents, along with their bid, to show that they fulfilled the stipulated technical criteria even for the financial year 2013-14. The very fact that the turnover certificate, and the net cash accruals and net worth certificate, certified by Sri A. Jhaveri and Company, Chartered Accountants, dated 06.11.2013 is only for the financial years 2010-11 to 2012-13 also goes to show that the petitioner understood the three immediately preceding financial years to mean the three financial years from 2010-11 to 2012-13. Clause 15 provides for a pre-bid meeting, for clarification of bids, and reads as under:
Pre bid meetings will be held as per the date, time and venue mentioned in the Bid Invitation Notice and in case of extension of time under Clause 14(3) on such date and time as may be notified in any of the newspapers or through website of the HGCL. All clarifications issued/provided during such meeting, will have to be incorporated in the Contract and will have no independent value/meaning, if not incorporated in the Contract. Necessary modification in the document, if any, after pre-bid meet shall be uploaded on HGCL website.
If the petitioner had really any doubt on whether or not the technical eligibility criteria, for the financial year 2013-14, should be taken into consideration, nothing prevented them from participating in the pre-bid meeting and seeking clarification in this regard. It does appear that the contention, that the relevant three financial years would include 2013-14, is an afterthought urged only for the purposes of this Writ Petition.
As noted hereinabove the points prescribed both for tolling experience and experience in installation of tolling equipment is 30 from out of a total of 100 points. If a tenderer is awarded zero points, under any one of these two heads, he would then not secure the minimum required pass mark of 75 points out of 100. The definition of tolling experience in Appendix 1 - Annexure VI is that, in order to get weightage of 30 marks for tolling experience, the bidder or any of its partner firm must have collected user fee of not less than Rupees 3.65 crores per annum at any single toll point/toll plaza owned by a statutory body recognised by law of the State Government/Central Government within India during the last three financial years immediately preceding the year of the bid. The bidder is required to furnish a certificate from the client/concessionaire to show that they have collected user fee of not less than Rs.3.65 crores per annum at any single toll point/toll plaza. The petitioner submitted a certificate issued by A.K. Lodha and Associates, Chartered Accountants dated 30.04.2014, along with their bid, which certifies that they had collected user fee of Rupees 10.75 crores in the financial year 2013-14. The said certificate records that its was issued on the basis of audited financial statements for the year 2011-12 and 2012-13, and the provisional financial statement of the year 2013-14 which was subject to audit.
Along with their bid, the petitioner enclosed the following letters of authorisation:
1. Letter of authorisation for collecting toll dated 23.04.2013 issued by the Haryana State Roads and Bridges Development Corporation Limited for collection of toll on TP-27 (Rohtak Kharkhauda Delhi Border Road) - for Rs.1,07,10,000 (Rupees One Crore Seven Lac Ten Thousand only).
2. Certificate issued by the Haryana State Roads and Bridges Development Corporation Limited dated 15.06.2012 - for Gurgaon Pataudi road km 10 (TP-2) for the period 11.04.2012 to 30.06.2013 - for Rs.5,57,57,000/-
(Rupees Five crores fifty seven lacs and fifty seven thousand only).
3. Letter of authorisation for collection of toll dated 28.09.2012 issued by Haryana State Roads and Bridges Development Corporation Limited - for collection of toll at Uklana - Tohana Munak Road (TP-22) - for Rs.1,75,11,779/- (One crore seventy five lakhs eleven thousand seven hundred and seventy nine only) - for the period 01.10.2012 to 30.09.2013.
All the other certificates submitted by the petitioner, along with their technical bid, related to the earlier financial years and not the financial year 2013-14. Both the letters of authorisation i.e, (1). Rohtak Kharkhauda Delhi border Road and (2) Uklma Tohana Munak Road are for Rs.1.07 crores and Rs.1.75 crores respectively which is far less than the stipulated minimum of Rs.3.65 crores. The certificate, relating to Gurgaon Pataudi road km 10 (TP-2), is for the period 11.04.2012 to 30.06.2013. While the period from 11.04.2012 to 31.03.2013 falls in the financial year 2012-13, it is only the three month period from 01.04.2013 to 30.06.2013 which falls within the financial year 2013-14. The said certificate does not contain information regarding toll collections for the three month period from 01.04.2013 to 30.06.2013 and, in its absence, the respondents have, instead of ignoring the certificate altogether, computed the proportionate amount to show that, even for this toll plaza, the collection for the year 2013-14 was far less than the minimum stipulated user fee collection, for each toll plaza for each year, of Rs.3.65 crores.
Sri S. Niranjan Reddy, Learned Counsel for the petitioner, would submit that the tender conditions enable the respondents to seek clarifications, and the petitioner would have readily provided information to show that they had complied with the requirement of toll collection of Rs.3.65 crores in a single toll plaza for the year 2013-14 if only such information had been asked for. Clause 2 of the ITB confers a right on HGCL to accept or reject any bid or all bids and, thereunder, notwithstanding anything contained in the RFP, the HGCL reserved the right to accept or reject any bid, to annul the bidding process and reject all bids, at anytime, without any liability or obligation for such acceptance, rejection or annulment, and without assigning any reasons therefor. HGCL reserved the right to reject the bid if (a) at any time, a material misrepresentation was made or uncovered, or (b) the bidder did not provide, within the time specified by HGCL, the supplemental information sought by HGCL for evaluation of the bid. Clause 4 of the ITB relates to clarifications, and reads as under:
Clause 4 Clarifications:
(i) To facilitate evaluation of BIDs, the HGCL may, at its sole discretion, seek clarifications from any Bidder regarding its Bid. Such clarification(s) shall be provided within the time specified by the HGCL for this purpose. Any request for clarification(s) and all clarification(s) shall be in writing.
(ii) If a Bidder does not provide clarifications sought under sub-clause (i) above within the prescribed time, its Bid shall be liable to be rejected.
In case the Bid is not rejected, the HGCL may proceed to evaluate the Bid by construing the particulars requiring clarification to the best of its understanding, and the Bidder shall be barred from subsequently questioning such interpretation of the HGCL.
(iii) No additional document will be obtained / accepted from the bidders after opening of the technical proposal.
While Clauses 2 and 4(i) of the ITB enable respondents 1 to 3 to seek clarifications from the bidders, it is clear from Clause 4(iii) that no additional document would be obtained/accepted from the bidders after opening of the technical proposal. The contention that, if the matter is remanded back for reconsideration by respondents 1 to 3, the petitioner would submit documents to show that they satisfy the requirement of tolling experience for the financial year 2013-14 does not, therefore, merit acceptance. It is evident that, even if the year 2013-14 is reckoned as one of the three immediately preceding financial years, the petitioner does not satisfy the requirement of tolling experience for the said year, and would not be entitled for any points under this head. Consequently they would not secure the minimum stipulated points of 75 out of 100.
V. MAXIMISATION OF REVENUES IS IN PUBLIC INTEREST:
Sri S. Niranjan Reddy, Learned Counsel for the petitioner, would submit that the inelastic approach, adopted by the authorities, had resulted in bidders, who had offered greater financial bids and who were otherwise qualified, being rejected at the technical evaluation stage; the petitioner has offered Rs.53 lakhs per month more than the successful bidder; this would result in an additional income of over Rs.9 Crores, to the public exchequer, if the writ petitions were to be allowed; and the irrational approach adopted by the respondents is in violation of public interest.
Sri M. Surendra Rao, Learned Senior Counsel appearing for respondents 1 to 3, would submit that it is the petitioners case that they have quoted Rs.4.45 Crores, which is more than what was quoted by the successful bidder; as they were found technically ineligible, their financial bid was not opened; and, as the bid conditions necessitate strict adherence, the financial bid of a person, who is technically disqualified, cannot be considered for award of the work.
The Writ Court would not be justified in interfering with commercial transactions in which the State is one of the parties except where substantial public interest is involved. (Raunaq International Limited18; Laxmi Builders, Secunderabad25; Tejas Constructions & Infrastructure (P) Ltd.5). The duty to act fairly is a part of the fair procedure envisaged under Articles 14 and 21, and every activity of the public authority or those under public duty must be received and guided by public interest. (Union of India v. Mohan Lal Capoor ; Mahesh Chandra v. U.P. Financial Corpn. ; LIC v. Consumer Education and Research Centre ). If the dispute is purely between two tenderers, the court must carefully verify whether there is any element of public interest involved in the litigation. (Raunaq International Ltd.18). Save substantial public interest being adversely affected, the Court should not, under Article 226 of the Constitution of India, ordinarily interfere in matters in the contractual domain. Only when it comes to the conclusion that overwhelming public interest requires interference, should it intervene. (Air India Ltd.7). Larger public interest would undoubtedly require the highest financial bid, quoted by a technically qualified bidder, being accepted It is no doubt true that the object of inviting bids for award of the work is to maximise revenue as is evident from clause (iv) of the bid invitation notice which reads as under:
(iv) The premium amount quoted by the bidders shall be the sole criterion for selection of the bidder. The premium amount shall in no case be less than One Rupee. The premium amount as quoted per month shall be paid by the bidder to the HGCL in addition to the amounts shown in column 3 of the above table payable for stretch.
While the premium amount quoted by the bidders is the primary criterion, it is evident from Appendix-I Annexure-V that points have been prescribed for different heads for evaluating the technical proposal. It is only such of those tenderers who have fulfilled the stipulated criteria, and have secured 75 points out of 100, whose bids are required to be considered for financial evaluation. Clause 16(ii) relates to opening of financial bid, and reads as under:
Envelope of Financial Bid of technically qualified Bidders are proposed to be opened as per the date, time and venue mentioned in the Bid Invitation Notice in the presence of those qualified Bidders or their sole authorised representatives, who elect to be present during the process of said bid opening. Conditional financial bids shall be rejected by the HGCL.
It is evident from Clause 16(ii) that it is only the financial bids of those bidders, whose technical proposal fulfils the conditions stipulated in the bid document and who stand technically qualified, which can be financially evaluated to achieve the primary object of maximising revenue.
While the Government cannot give a contract for a consideration lower than what can be obtained for it, unless there are other considerations which render it reasonable and in public interest to do so, (Meerut Development Authority v. Assn. of Management Studies ; Kasturi Lal Lakshmi Reddy v. State of J&K ; Himachal Pradesh Housing and Urban Development Authority4), price need not always be the sole criterion for awarding a contract. The price offered is only one of the criteria. The difference in the price, offered by the two tenderers, may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. The past record of the tenderers, the quality of the goods or services which are offered, assessing such quality on the basis of the past performance of the tenderers, their market reputation, etc all play an important role in deciding to whom the contract should be awarded. (Laxmi Builders, Secunderabad25; Raunaq International Ltd.18; Air India Ltd7). It is not proper to look at only the financial aspect and hold that authorities did not accept the highest offer, even though it was better, because it wanted to favour the selected tenderer. In a commercial transaction of a complex nature what may appear to be better, on the face of it, may not be considered so when an overall view is taken. In such matters the Court cannot substitute it's decision for the decision of the party awarding the contract. (Air India Ltd.7). A contract need not be given to the highest tenderer, and the employer is the best judge thereof as it is, ordinarily, within its domain. The Court's interference in such matters should be minimal and it should, normally, exercise judicial restraint unless illegality or arbitrariness, on the part of the employer, is apparent on the face of the record. (B.S.N. Joshi20). The mere fact that the petitioner claims to have quoted a price bid of Rupees 53 Lakhs per month more, than the selected tenderer, would not justify acceptance of their bid as they have failed to satisfy the technical eligibility criteria stipulated in bid document.
VI. WOULD ADOPTION OF AN AVERAGING METHOD, WITHOUT NOTICE TO THE PETITIONER, VITIATE THE SELECTION PROCESS?
Sri S. Niranjan Reddy, Learned Counsel for the petitioner, would submit that, to withstand scrutiny of the test of Article 14, it is imperative that the actions of the respondents must be fair, transparent and reasonable; if the respondents intended to adopt any averaging method, it ought to have been clearly specified by putting the tenderers on notice; and, failure to do so, would result in an unreasonable exclusion of a few which vitiates the entire process.
Sri M. Surendra Rao, Learned Senior Counsel appearing for respondents 1 to 3, would submit that the petitioner was awarded 4.12 marks for the criteria at S1.No.3; a rational method, of apportioning marks for each of the sub-head of the criteria stipulated at Sl.No.3 of Appendix-I - Annexure-V, was followed; the total points scored by the petitioner, in respect of the key personnel shown by them, was divided by 12 to arrive at the points they would get for the said criteria; the same method of awarding points was adopted in respect of all the nine bidders; and the points scored by each of the nine bidders, following a uniform method in respect of the criteria at Sl. No. 3, has been furnished in the rejoinder-affidavit. Sri C.V. Mohan Reddy, Learned Senior Counsel appearing for respondent No.4, would submit that the points and evaluation vary on the basis of qualifications of individuals as prescribed under Schedule-V and Clauses 12 and 13 of the bid documents; and there is no ambiguity in awarding points for criteria No.3.
While the petitioner was given 20 out of 20 points under the head net worth, they were given 4.12 points out of 15 points under the head qualification and experience of the proposed key personnel. For this criterion, the tender conditions prescribed certain sub-criteria i.e., 50% for general qualification, 40% for relevant experience and adequacy for the assignment, and 10% for permanent employment with the firm. The points prescribed for general qualification was, in effect, 7.5; for relevant experience and adequacy for the assignment - six points and for permanent employment with the firm - 1.5 points i.e., a total of 15 points. Section-IV of the notice inviting tender relates to the contract. Clause 12 thereof details the requirement of personnel for user fee collection, and Clause 13 relates to deployment of personnel. Schedule V of the bid document details the designation and essential qualifications of key personnel as under:
S. No. Designation at Plaza Nos deployed for all Plazas (for all shifts) to be provided by the bidder Essential Qualifications
1.
Plaza Manager Graduate in any discipline with minimum 10 years post qualification experience in relevant field in any govt. or private organisation of repute.
2. Security Officer Graduate in any discipline with minimum 10 years post qualification experience in relevant field in any govt. or private organisation of repute or retired defence personnel of rank equivalent to Capt. Or above.
The officer can be from paramilitary forces also of the rank of Dy SP and above.
3. Accounts Officer Graduate in Commerce with minimum 10 years post qualification experience in relevant field or CA/ICWA/SAS with minimum 5 years post qualification experience in any govt or private organisation of repute.
Clause 13 (b) at Sl.No.12 of Addendum No.3 reads as under:
The Contractor shall furnish to the HGCL, details of Key Personnel (namely Plaza Manager, Security Officer, Accounts Officer for four (4) major plazas (Nanakramguda, Shamshabad, Patancheru, Pedda Amberpet, i.e., 4 x 3 = 12 nos) proposed to be deployed for the purpose of discharging its obligations under the Contract, containing all the details like their educational qualifications, experience, etc., The details of key personnel for the above four major toll plazas shall be considered for evaluating the technical proposal for which a maximum of 15 points is provided.
As three key personnel were required to be deployed, at each of the four major toll plazas, the respondent took the total number of officers as 12 and had, accordingly, apportioned marks for each of the key personnel provided by the tenderers. The petitioner was, thereby, awarded 4.12 points out of 15. It is wholly unnecessary for this Court to examine whether or not the respondents were justified in apportioning such points by following a procedure not specifically prescribed in the tender document for, even if the petitioners were to be granted 15 points out of 15 under this head, they would still not secure the prescribed minimum of 75 points as they would get only 35 points out of 100 (i.e 20 points for net worth, and 15 points for qualification and experience of the proposed key personnel). The contention that a similar procedure, as was adopted for awarding points under the head qualification and experience of proposed key personnel, should also have been adopted for the other criteria does not merit acceptance as the tender conditions neither provide for apportionment of points nor does it prescribe sub-criteria for heads other than for qualification and experience of the proposal key personnel.
VII. DIFFERENT CRITERIA ADOPTED FOR RECKONING THE NATURE OF CERTIFICATES:
Sri S. Niranjan Reddy, Learned Counsel for the petitioner, would submit that the respondents have contended, contrary to the language of the tender document, that they have followed a uniform process and have, therefore, prayed that the process should not be interdicted; uniformity in irrationality does not render the actions rational; uniformity must be coupled with fairness and reasonableness, for it to pass the test of Article 14 of the Constitution of India; at the same time, the authority has followed different methods for reckoning the nature of certificates required to satisfy the eligibility between the petitioners in W.P.Nos.15862 of 2014 and W.P. No.15863 of 2014, and also regarding the eligibility criterion of the period (2013-14) followed; and this renders the entire process whimsical and capricious.
Sri C.V. Mohan Reddy, Learned Senior Counsel appearing for the 4th respondent, would submit that the petitioner submitted authorization letters from the authorities which merely indicated that they were entitled to collect toll at the plaza/plazas mentioned therein, for the amount payable by them during the subsistence of the authorization; these certificates only disclose authorization for collecting toll plaza; they do not show the actual collections for the year; the tolling experience certificates filed by the petitioner are merely authorisation letters; no certificate, issued by the client, has been filed; these certificates do not also state whether the petitioner had successfully collected user charges as per the letter of authorization; and the documents filed by the petitioner do not satisfy the eligibility criteria under the head tolling experience as stipulated under clause I(ii)(c)(v).
As noted hereinabove, Appendix-I Annexure-VI and the corrigendum require submission of a certificate from the client/concessionaire for user fee collected at any single toll plaza. It is no doubt true that the actual user fee collection may vary from the user fee collection refereed to in the letter of authorisation as given by the client/concessionaire. The letter of authorisation for collecting toll is given to the successful bidder at the rate quoted by them. The actual collection of toll may be higher or lower than the quoted rate. It does appear that, in the case of M/s.Sahakar Global Limited (the petitioner in W.P.No.15862 of 2014), the letter of authorisation for collecting toll has been taken as the certificate from the client/concessionaire for user fee collected at a single plaza. It is, however, not even the petitioners case that they have furnished certificates from their client/concessionaire for the actual user fee collected by them. As the petitioner has not produced any certificate, regarding actual user fee collection, the fact that the respondents had accepted the letter of authorisation for collecting toll, as the certificate from the client/concessionaire for user fee collection, does not, by itself, justify the contract awarded to the 4th respondent being set aside.
VIII. IS THE PETITIONER MERELY A FRONT FOR THE PREVIOUS CONTRACTOR?
Sri C.V. Mohan Reddy, Learned Senior Counsel appearing for the 4th respondent, would submit that M/s. PK Hospitalities Services Private Ltd., who filed W.P. No.17194 of 2014, did not participate in the tender process; the petitioner is an employee of PK Hospitalities Services Private Ltd., as per the income certificate filed along with the bid document; it is clear that the petitioner is merely acting at the behest of M/s PK Hospitalities i.e., the existing contractor; the petitioner has not questioned the evaluation, with regards the qualified technical bidders, by the respondent authority; it is not their case that the qualified technical bids were evaluated contrary to the terms and conditions of the bid document; the petitioner has not been discriminated against; the petitioner had, hitherto, filed WP No.15208 of 2014 seeking the very same relief; as the earlier writ petition was not withdrawn, the present writ petition is not maintainable; under Rule 24 of the Writ Rules, the Civil Procedure Code is applicable to writ proceedings also; and without withdrawing the earlier writ petition, and without obtaining leave of this Court, the present writ petition could not have been filed. Learned Senior Counsel would place reliance on Vice Chairman & M.D., APMDC v. GMK Minerals Pvt. Ltd. in this regard.
As it is evident that the petitioner has not fulfilled the technical eligibility criteria, stipulated in the tender conditions, no interference is called for regarding award of the contract to the 4th respondent. I see no reason, therefore, to examine the contention urged on behalf of the 4th respondent by Sri C.V. Mohan Reddy, Learned Senior Counsel, that the petitioner is merely a front for M/s.P.K. Hospitalities Services Pvt. Ltd. (the existing contractor) or that the petitioner, having filed W.P.No.15208 of 2014 for the very same relief, is disentitled from filing the present Writ Petition.
WRIT PETITION No.15862 OF 2014:
During the course of hearing of this Writ Petition, this Court asked Sri P.Pandu Ranga Reddy, Learned Counsel for the petitioner, to ascertain whether the financial bid submitted by the petitioner was more than that of the successful tenderer (4th respondent). Sri P.Pandu Ranga Reddy, Learned Counsel for the petitioner, would fairly state that the financial bid submitted by the petitioner in W.P.No.15862 of 2014 is lower than the financial bid submitted by the 4th respondent. As the petitioner would not be entitled to be awarded the work, even if they are held to be technically eligible, since their financial bid is lower than that of the 4th respondent, I see no reason to examine the contentions, urged on behalf of the petitioner, that they fulfil the technical eligibility criteria. The petitioner is not entitled for grant of the relief sought for by them in this Writ Petition.
WRIT PETITION No.15864 OF 2014:
While contending that the petitioner had offered a financial bid, higher than that of the successful tenderer, Sri V.M.M. Chary, Learned Counsel for the petitioner, would fairly state that the petitioner fulfilled the stipulated technical qualifications only for the financial year 2013-14, and not for any of the preceding years. Even if 2013-14 is taken into consideration, the requirements regarding tolling experience is that the tenderer should have collected user fee of not less Rs.3.65 Crores per annum, at any single toll plaza, for the preceding three years. As the petitioner, admittedly, has not fulfilled this requirement for the financial years 2011-12 and 2012-13, it matters little that they fulfilled this requirement for the financial year 2013-14 as they would still be ineligible having failed to secure any points under the head tolling experience which would result in their inability to secure the minimum cut off points of 75 out of 100. I see no reason, therefore, to grant the relief sought for in this Writ Petition.
IX. CONCLUSION:
While M/s.P.K. Hospitality Services Private Limited (petitioner in W.P.No.17194 of 2014) was hitherto paying Rs.1.96 Crores per month, acceptance of the bid of the 4th respondent has resulted in generation of revenue to the respondents 1 to 3 of Rs.3.92 Crores per month, which is twice the sum received by them earlier. Curiously M/s.P.K. Hospitality Services Private Limited, (who were paying Rs.1.96 Crores per month to respondents 1 to 3 during the earlier contract period, and who did not even participate in the present tender process) filed an affidavit before this Court volunteering to pay Rs.3.92 crores from 07.07.2014 onwards i.e., a sum equal to the price bid offered by the 4th respondent, and around twice the sum they were paying earlier. M/s.S.S.C.-JV, (the petitioner in W.P.No.15863 of 2014) submitted their financial bid of Rs.4.45 crores per month which is Rs.53.00 Lakhs per month more than the financial bid of successful bidder. M/s.Seashell Venture Pvt. Ltd.-JV (petitioner in W.P.No.15864 of 2014) claim to have quoted a financial bid of Rs.5.88 Crores per month which is Rs.1.43 crores per month more than the bid submitted by M/s.S.S.C.-JV (petitioner in W.P.No.15863 of 2014), and Rs.1.96 crores per month more than the bid submitted by the 4th respondent.
The huge variance in the financial bid offered by different bidders, and the vehemence with which submissions were made during the course of hearing of these writ petitions, lead this Court to believe that respondents 1 to 3 may have lost the opportunity of maximising their revenues, and that, instead of awarding the contract straightaway to the 4th respondent, they could have, through a process of negotiations with all the three technically qualified tenderers, further enhanced their revenue. If the award of work had been challenged by either of the other two bidders, who qualified at the technical evaluation stage, this Court could have ascertained whether they were willing to offer a price bid more than the 4th respondent. Neither of the other two technically qualified bidders have, however, invoked the jurisdiction of this Court. While interference with the award of contract to the 4th respondent, in Writ Petitions filed by those who are technically ineligible, may not be justified, it is disconcerting that adequate safeguards have not been taken by respondents 1 to 3, to maximise its revenues, such as prescribing a minimum bid or entering into negotiations with all the technically qualified bidders.
Subject to these observations, all the Writ Petitions fail and are, accordingly, dismissed. Consequent on the dismissal of Writ Petitions, the interim order passed by this Court on 16.07.2014 would no longer remain in force and the bank guarantees furnished both by M/S.S.C.- JV (petitioner in W.P.No.15863 of 2014) and the 4th respondent (successful bidder), pursuant to the said interim order, shall be returned to them in accordance with law. The miscellaneous petitions pending, if any, shall also stand dismissed. No costs.
_______________________________ (RAMESH RANGANATHAN, J) Date: 15.10.2014