Gujarat High Court
Cube Construction Engineering Limited vs Ahmedabad Municipal Corporation on 21 April, 2022
Bench: Aravind Kumar, Ashutosh J. Shastri
C/SCA/5992/2022 ORDER DATED: 21/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5992 of 2022
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CUBE CONSTRUCTION ENGINEERING LIMITED
Versus
AHMEDABAD MUNICIPAL CORPORATION
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Appearance:
MR.MANISH BHATT, SENIOR COUNSEL WITH
MR MUNJAAL BHATT, ADVOCATE FOR M R BHATT & CO.(5953) for the
Petitioner(s) No. 1,2
MR. KAMAL TRIVEDI, SENIOR COUNSEL WITH
MR G H VIRK(7392) for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 21/04/2022
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
1. The petitioners by way of this petition under Article 226 of the Constitution of India are challenging the legality and validity of a decision dated 8.3.2022 whereby through E-mail, the petitioners' bid is disqualified of the tender process issued for the work of construction of Sports Complex at Naranpura, Ahmedabad, Gujarat.
2. Following are the reliefs, which are sought in the petition, Court deems it proper to reproduce hereunder: Page 1 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022
C/SCA/5992/2022 ORDER DATED: 21/04/2022 "22.(a) That this Hon'ble Court may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction quashing and setting aside the impugned disqualification email dated 08.03.2022, marked as Annexure-A to the petition;
(b) That this Hon'ble Court may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction directing the Respondent to hold that the Petitioners are technically qualified and that their Financial Bid should accordingly be opened;
(c) That pending admission, hearing and final disposal of the present petition, this Hon'ble Court may be pleased to stay the effect, implementation and execution of the impugned disqualification email dated 08.03.2022, marked as Annexure-A to the petition;
(d) That pending admission, hearing and final disposal of the present petition, this Hon'ble Court may be pleased to permit the Financial Bid of Petitioners to be opened and considered;
(e) That this Hon'ble Court may be pleased to issue ad-interim ex-parte relief in terms of Para (c) and (d) hereinabove;
(f) That this Hon'ble Court may be pleased to award cost of the present petition to the Petitioners;
(g) Pass such other order(s) as this Hon'ble Court deems fit in the facts and circumstances of the case."
3. The case of the petitioners is that petitioner No.1 is a Page 2 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 Civil Engineering and Construction Company incorporated in the year 1996 and is said to have undertaken several projects floated by various authorities from time to time which are narrated in paragraph No.2 of the petition compilation. Petitioner No.2 is the Chief Managing Director and shareholder of petitioner No.1 and as such, he being a citizen of India has presented this petition by assailing the decision taken by respondent authority. The respondent herein floated a tender for "Construction of Sports Complex at Naranpura, Ahmedabad, Gujarat under Khelo India Scheme on Percentage Basis" in the month of November, 2021. This Sports Complex construction includes the works of Civil, Plumbing, Electrical, HVAC, Fire System, Sports Items & Furniture, Landscaping, Infrastructure Development, etc. The Bidding documents volume-I relates to notice inviting tender and instructions to the bidder which is appended to the petition at Annexure-B. 3.1 It is the case of petitioners that under the tender, bidders are required to submit their respective bids in two parts i.e. Technical Bid and Financial Bid and same were to be submitted on-line. The estimated initial cost of tender comes to Page 3 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 Rs.584.00 crores, which later on came to be revised to Rs.590,56,77,876=24 by inserting addendums. According to petitioners, some further changes were also made in respect of tender conditions but said amendments since are not relating to dispute in question in present proceedings, petitioners have not elaborated but relevant clauses were emphasized by the petitioners from the said tender of November, 2021 and one of such clauses deals with eligibility of bidder. Clause 2.2 prescribed the "Eligibility of Bidder" and according to petitioners, clause 2.2.2 (B) relates to "Technical Capacity" mandated for each bidder whereas Clause 3 relates to "Criteria for Evaluation". The bidder is required to fulfill one more criteria and as such, according to tender documents and the terms, four criteria are to be fulfilled which relates to technical qualification. This clause relates to technical eligibility which was later on amended under Amendment 2 wherein, as against four criteria to be fulfilled, the respondent amended one of the four criteria to include "facilities for Indoor / Outdoor Sports for competition standard". With a view to indicate a marked difference between original requirement and amended one, the chart is highlighted in paragraph No.9 of the petition compilation and Page 4 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 after referring to this Tabular Chart, it is contended that bidders were required to satisfy these four criteria in order to be technically qualified. Clause 2.2.3 also required the bidders to submit a certificate from statutory auditor in respect of project being relied upon by them, in order to ascertain the value of project. The bid, which was submitted by the petitioners, received two queries, one by R.S.Patel & Company (Charted Accountant) dated 8.2.2022 and another by Sachin Gandhi & Associates (Architect) dated 9.2.2022 and both these queries were replied by the petitioners on 11.2.2022. 3.2 It is further the case of the petitioners that after the respondent raised a query on 17.2.2022, almost on the same line which was raised by Sachin Gandhi & Associates (Architect) to which petitioners responded on the very next day i.e. on 18.2.2022 and inspite of having provided all the relevant documents during the submission of bid as well as under two responses sent earlier, the respondent and the Charted Accountant under letter dated 21.02.2022 called upon the petitioners again to produce certain documents and same was also duly complied with by the petitioners. It is also stated that petitioners apprehending of being knocked out, by their letter Page 5 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 dated 24.2.2022 once again, it was clarified that all queries raised till date were responded but no communication was received thereafter by the respondent authority and as such, petitioners were under the bona-fide impression that issue might have been resolved, as petitioners had explained and responded to the queries raised. To the surprise of petitioners, they received e-mail on 8.3.2022 from the authority informing them of their disqualification in respect of tender and this decision is the subject matter of challenge in the present petition filed under Article 226 of the Constitution of India.
4. The petition was heard by the Court on 24.3.2022 by which notice was issued by this Court and in response to the said notice, detailed affidavit-in-reply has been filed by respondent authority and rejoinder affidavit has also been filed by the petitioners in reply to the stand of the respondent authority and since the pleadings have been completed, a request is made by learned Senior Counsel appearing for both the parties to take up the matter for final hearing. Looking at the urgency and significant impact on the process of tender, this Court took up the matter for final hearing in which Shri Manish Bhatt, learned Senior Counsel appearing with Shri Munjaal Bhatt for the Page 6 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 petitioners and Shri Kamal Trivedi, learned Senior Counsel appearing with Shri G. H. Virk for the respondent have addressed their arguments.
5. It is the contention of Shri M.R.Bhatt, learned Senior Counsel appearing for the petitioners that the respondent Corporation with pre-determined mind namely, to exclude the petitioner from participating in the tender process, has disqualified the petitioner at the nascent stage namely, pre-bid stage. Shri Bhatt, learned Senior Counsel has submitted that what is under challenge mainly is the decision making process by the authority which, according to him smacks, mala fides, favoritism and as such that being so, judicial review deserves to be undertaken in this peculiar background of fact. He would submit that one of the essential terms of the tender is that respondent authority was required to display the result of the technical evaluation on its web portal along with the reasons for rejecting the bid, if any, vide Clause 2.24 of the tender conditions and impugned email dated 8.3.2022 (Annexure-A) does not disclose the reasons for disqualifying the petitioner and on that Page 7 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 ground itself, the decision making process of the respondent has to be held as flawed and consequently further tender process has to be set aside. It is contended that reasons are integral part of principles of natural justice and in view of settled position of law, the reasons cannot be supplied by way of an affidavit or the subsequent reasons cannot be supplemented by affidavit, it should reflect in the order itself. He would also contend that tender floated was for construction of a "Sports Complex" at Naranpura and by assigning the reasons that petitioner does not meet the criteria fixed especially with regard to the condition that the bidders should have completed minimum one project of Sports Complex in last 7 years, petitioner has been disqualified which is an erroneous decision and same is taken with a mala-fide intention and it is a colourable exercise of power inasmuch as tender conditions were modified by issuing a Corrigendum by virtue of which, a clause was included that bidders were also entitled to participate in the bid in the event they having completed a project having infrastructure facilities for indoor / outdoor sports Page 8 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 of a competition standard and this criteria was met by the petitioner and in proof of the same, documents were also furnished and the queries raised by the respondent had been answered which has also been accepted by the Technical Member of the respondent authority but same has not been accepted by the Financial Member that too without assigning proper reasons and hence, he contends that decision making process is flawed or improper. It is contended that petitioners also have submitted relevant experience certificate which establishes the expertise of petitioner required for the work to be undertaken and has placed reliance on specific document indicating that similar work has been undertaken by petitioners at Aatapi Wonderland in Vadodara as a development of theme Park at Ajwa, Vadodara and by referring to these documents, Shri Bhatt, learned Senior Counsel has contended that since petitioners have fulfilled the prescribed eligibility criteria, there is hardly any justification for authority to disqualify the petitioners from the tender process.
6. Shri M.R.Bhatt, learned Senior Counsel would also contend that the reasons having not been assigned in the Page 9 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 rejection email forwarded to the petitioner, respondent cannot now supplement the reasons in its reply affidavit and with a pre-determined mind the respondents have disqualified the petitioner without opening the financial bid and the very fact that price offered by the petitioner is less than Rs.21.00 Crores of the bid submitted by the next higher bidder, would disclose that State Exchequer is losing Rs.21.00 Crores and hence prays for quashing of the email dated 8.3.2022. In support of his submissions, he has relied upon the following authorities :
(i) Municipal Corporation, Ujjain vs. BVG India Limited, reported in (2018) 5 SCC
462.
(ii) Galaxy Transport Agencies vs. New J.K.Roadways, reported in (2020) SCC Online 1035.
(iii)N.G. Projects Limited vs. Vinod Kumar Jain and others, reported in (2022) SCC Online 336.
(iv) Order of Division Bench passed on 05.04.2022 in the case of Adani Ports and SEZ vs. Deendayal Port Trust, being Special Civil Application No.20161 of 2021.
7. Hence, learned Senior Counsel seeks for Special Civil Application being allowed.
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8. Per contra, Shri Kamal Trivedi, learned Senior Counsel appearing on behalf of respondent would contend that respondent intends to develop a facility which can act as a venue for national and international sporting events and as such, respondent Corporation invited bids for construction of a sports complex at Naranpura, Ahmedabad under "Khelo India Scheme" promoted by Ministry of Youth Affairs and Sports, Government of India. Clause 1.1.1 of tender has been brought to the notice of the Court to indicate the manner in which the authority wants to construct the sports complex which includes several activities related to sports and has drawn our attention to tender document wherein the scope of work is specified. It is contended that it is the prestigious project of the respondent as it would act as a premier sporting facility for the citizenry of Ahmedabad and in this background, bids were invited in terms of notice inviting tender. He would also contend that after amendments of certain clauses in the tender, documents were finalized and the framework of the tender was frozen. He would submit that a pre-bid meeting was organized on 7.12.2021 at 11 a.m. of the bidders prior to submission of bids by them and draws attention Page 11 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 of the Court to queries raised by the petitioners whose representative had also attended the meeting and intended for a particular clause being added which was rejected by the respondent. Hence, he contends petitioner cannot now turn around and take a contrary stand and for suppression of this material fact, petition is liable to be dismissed. He would also contend that pre-bid queries of the bidders along with responses thereto by the respondent were published on (n)Procure web portal and were made available to all bidders including first petitioner. He would contend that petitioner did not meet the eligibility criteria prescribed under the notice inviting tender namely, clause 2.2.2(B) even after addendum was issued.
9. He would submit that the bid involved two bid system namely, technical bid and financial bid and after receipt of bids from all the bidders, evaluation process of the tender was commenced and on account of tender stipulating the technical bid was required to be opened at first instance, technical bids of all the bidders were opened and it was found that the project on the basis on which petitioners had claimed to be qualified according to respondent had no likeness or correlation to the competition level structures to be built under Page 12 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 the tender invited. The respondent also found that the document submitted by the petitioners in support of its claim was vague and clarification sought for was also found by the respondent to be inadequate. He would submit that the author of tender document is the best person to ascertain as to whether the bidder satisfied the conditions stipulated thereunder and on account of the tender evaluating committee namely, the financial consultant having arrived at a conclusion that the condition stipulated under the tender was not met by the petitioners and supporting documents furnished on query being raised also did not stand the test of scrutiny of the notice inviting authority, petitioners came to be disqualified at the initial stage. He would draw the attention of the Court to various documents produced by the petitioners appended to the reply statement to contend that petitioner's abysmal credentials to perform the tendered works were self-evident. Shri Trivedi, learned Senior Counsel has submitted that conduct of the petitioners itself is indicating namely, petitioners do not have any work, any project like the present one and that is the reason why in response to the query, petitioners had requested the respondent to add the words "Theme Park" in respect of Page 13 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 experience criteria during pre-bid meeting and as such, the petitioners were clearly aware from the initial stage itself that they do not fulfill the prescribed eligibility criteria and as such, there is hardly any reason for petitioners having participated in the process of tender and now to agitate when it found to be disqualified. He would also elaborate his submission by contending that the work of Theme Park "Aatapi Wonderland"
is a children's play area having nothing to do with "Sports Complex" or "Indoor/Outdoor of Competition Standards".
Further contending that documents produced before the respondent on the query raised has not been produced by the petitioners before this Court and by suppressing fact, an attempt has been made to obtain an order by trick and strategen.
10. He would also contend that tender inviting authority is entitled to independently verify information and on such verification, it was discovered that "Theme Park" which the petitioners claim to have completed has children's joy rides which has nothing to do with competition sports or sporting activities in general.
11. He would also submit that "Theme Park at Ajwa Page 14 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 Garden, Vadodara", developed by the petitioner and relied upon as the basis on which it sought to contend that it would qualify to participate for the tender works as per Annexure R/5 would disclose that it was for "Development of Theme Park"
and mere installation of amusement rides and activities along with horticultural development and beautification plan does not meet the prescribed criteria. Shri Trivedi, learned Senior Counsel has further submitted that conduct of petitioners are also not found to be trustworthy since petitioners have deliberately not produced the "RFQ-cum-RPF" documents before the authority and from whatever documents which have been placed before the authority in the form of development of "Theme Park at Ajwa Garden, Vadodara" the petitioner No.1 was found to be wholly unqualified for tender works since it has merely done the work of installing amusement rides and activities along with horticultural development and beautification plan at the Aatapi Wonderland Theme Park in Vadodara and petitioners have never completed successfully any work related to sports complex for indoor / outdoor sports facilities of competition standards and that too of international standard and as such, according to Shri Trivedi, learned Senior Page 15 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 Counsel, respondent after evaluating and assessing all the tenders had found that petitioners were not eligible and as such, they have been communicated about such disqualification. The said disqualification of the petitioners is an action well within the scope of respondent authority and cannot be said to be unjust or arbitrary.
12. It is contended that petitioners have not constructed any sports complex for indoor/outdoor sports facilities for competition standards. He would submit that if petitioners were to be construed as a qualified bidder for the tender in question, it would open up floodgate of other entities which have developed amusement park and playgrounds for children contending that, they would also be entitled to offer their bids in the tender.
13. So far as grievance about decision making process is concerned, Shri Trivedi, learned Senior Counsel has submitted that it is absolutely in a fair and transparent manner, the ultimate decision is taken and it is merely communicated which does not require any elaborate and detail reason as if any quasi judicial authority is taking a decision. These are all administrative commercial decisions which are being taken in Page 16 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 the present routine manner and as such the impugned communication cannot be attacked on the ground of non assigning of any reason. In addition to it, it has been submitted that even clauses contained in the tender document itself is making it clear that no elaborate reasons are supposed to be given or communicated to the bidder concerned. Shri Kamal Trivedi, learned Senior Counsel appearing for the respondent would also contend that under Clause 2.6.1, tender inviting authority had reserved its right to accept or reject any bid and to annul the bidding process and reject all applications/bids at any time and without assigning any reasons thereof. He would draw the attention of the Court to Clause 2.2.4 to contend that test of responsiveness is relatable to Clause 2.13 namely, the authority to determine whether each bid is responsive to the requirement of the bid documents and only such bids would be considered responsive if it is does not contain any qualification or condition and it is this not meeting the responsive test which was required to be hoisted on the web portal and even otherwise, in view of categorical acknowledgment of petitioner that the notice inviting authority has right to reject the bid without assigning any reason is sufficient enough to insulate the Page 17 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 respondent from any such grievances being raised by the bidders including petitioners. Hence, he would submit that there is no merit in the contention raised by petitioners.
14. Additionally, Shri Trivedi, learned Senior Counsel has specifically drawn the attention of the Court that along with tender, a specific letter in the form of Appendix-I is to be filled in by bidder which indicates a "letter comprising the technical bid" which clearly indicate that respondent-authority possesses a right to reject any bid without any reason and once having filled in this Appendix-I, coupled with other terms contained in clauses 14 and 16 as well, it is not open to the petitioners to agitate the grievance of non-assigning of reasons that too after having participated in the process of tender with all these conditions with open eyes. Hence, in these circumstances, it is vehemently contended that petitioners have not made out any case for questioning disqualification.
15. He would draw the attention of the Court to letter dated 12.1.2022 addressed by petitioner under which, the petitioner has acknowledged the right of the authority to reject the bid without assigning any reason and would also draw the Page 18 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 attention of the Court to the additional affidavit dated 13.4.2022 filed by respondent.
16. He would submit that the decision making process has been fair and even on perusal of works performed by the petitioner, it was found that it did not possess requisite qualification.
17. According to Shri Trivedi, learned Senior Counsel, the decision making process has throughout remained fair to the petitioner No.1 and having been afforded multiple opportunities to make their submissions and only after scrutiny of papers, the decision of disqualification was communicated and as such, the petitioners themselves being aware about their situation from the initial stage itself, cannot now raise grievance against selection of L1 by an authority which is well within its domain. It has been contended that here is the case in which technically qualified L1 bidder has already been selected and phase-wise approval to such successful bidder has also been substantially concluded and the authority has examined the said L1 bidder as qualified technically as well as commercially. The conduct of the petitioners that in the memo it has been asserted Page 19 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 that petitioners being allegedly lower than qualified L1 bidder in respect of their financial bid which was not open at a relevant point of time and as such, just with a view to thwart the process of such significant work for their commercial interest assertions have been made that authority has acted in an arbitrary manner which in fact is far from truth.
18. It is submitted that technically qualified L/1 bidder has already been selected and alleged lower financial bid of L/1 than that of the petitioner (not opened) would of no consequence. It is contended that petitioner has made false claims of having executed project having indoor/outdoor sports facilities for competition standards and as such, attempt made by the petitioner to mislead has been thwarted at the right stage by disqualifying the petitioner on the ground of not having met the prescribed eligibility criteria. Contending that the petitioner is attempting to derail the valuable public works project has sought for rejection of the petition.
19. In support of his submission, he has relied upon the following judgments:
i) Silppi Constructions Contractors Vs. Union Page 20 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 of India reported in (2020) 16 SCC 489.
ii) National High Speed Rail Corporation Ltd.
Vs. Montecarlo Ltd. reported in 2022 SCC OnLine SC 111.
iii) Agmatel India Pvt. Ltd. Vs. Resoursys Telecom reported in 2022 SCC OnLine SC 113.
iv) N.G. Projects Ltd. Vs. Vinod Kumar Jain reported in 2022 SCC OnLine SC 336.
v) ERA Infra Engineering Ltd. Vs. Delhi Development Authority reported in 2010(114) DRJ 569.
vi) Order dated 22.7.2021 passed by this Court in Special Civil Application No.6767 of 2021 in the matter of Montecarlo Ltd. Vs. Gujarat Rail Infrastructure Development Corporation Ltd.
vii) Kumari Shrilekha Vidyarthi Vs. State of U.P. reported in (1991)1 SCC 212.
viii) Delhi Development Authority Vs. UEE Electricals Engg. (P) Ltd. reported in (2004)11 SCC 213.
ix) Ratnagiri Gas and Power Pvt. Ltd. Vs. RDS Projects Ltd. reported in (2013)1 SCC 524.
x) Afcons Infrastructure Limited. Vs. Nagpur Metro Rail Corporation Limited and Another reported in (2016)16 SCC 818.
xi) Jagdish Mandal Vs. State of Orissa and Others reported in (2007)14 SCC 517.
20. Hence, he prays for dismissal of the petition. Page 21 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022
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21. In rejoinder to this, Shri Manish Bhatt, learned Senior Counsel appearing for the petitioners has briefly submitted that the decision making process is not fair and transparent and the decisions which are relied upon by Shri Kamal Trivedi, learned Senior Counsel are based on the different factual backgrounds and on the basis of it, authority cannot justify their unilateral stand. Shri Manish Bhatt, learned Senior Counsel has reiterated that there is a huge difference of price approximately Rs.21.00 crores between the bid offered by petitioners and L1 and as such, public interest being involved, this Hon'ble Court should invoke its extraordinary jurisdiction. The entire action impugned in the petition is taken in a very structured manner and if the successful bidders' documents are to be looked into, the authority is inclined to favour L1, which is apparently visible, not only the successful L1 bidder is not having any such technical capacity to meet with the work but the respondent-authority is also surprisingly favouring L1 by accepting incomplete documents which would clearly indicate that authority is apparently not meeting the test of reasonableness in respect of tender process which is being floated. The said successful bidder is also having an experience Page 22 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 of construction of Student Activity Center at Naranpura for Ahmedabad University Central Campus and volume of work is also not sufficient enough to be compared with the petitioners experience. Further, the documents which were considered were not in a complete form but, on the contrary, the work order which was sought to be relied upon, reflecting on page 547 on the petition compilation, indicates that in between pages from page 1 to page 9 are missing which would clearly indicate that in what manner the assessment or evaluation must have been done by the authority and later on, the additional affidavit which is filed by placing Appendix-I is nothing but after thought which would not justify the original action of declaring disqualification of petitioners and as such, by filing such kind of affidavits, an eye wash is made by authority which ought not to be encouraged. According to Shri Manish Bhatt, learned Senior Counsel, giving of a writing, requiring no reasons for rejection is of no consequence since the authorities are under an obligation not to act in an arbitrary manner and perversity according to him, is reflecting on face of the record and as such, the impugned decision deserves to be quashed and set aside with consequential reliefs, as prayed for. He would also submit that Page 23 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 when a decision is taken, which adversely affects the petitioners, such decision ought to contain reasons and lack of reasons in the impugned communication is sufficient to hold and arrive at a conclusion that there is clear violation of principles of natural justice and in support of his submission, he has relied upon the judgment of this Court rendered in Special Civil Application No.20161 of 2021 on 5.4.2022 referred to herein supra. Hence, he prays for petition being allowed.
22. Having heard the learned Senior Counsels appearing for the parties and after bestowing our careful and anxious consideration to the rival contentions raised at the Bar, we are of the considered view that following points would arise for our consideration:
(1) Whether communication dated 8.3.2022 at Annexure-A disqualifying the petitioner at pre-bid stage is to be upheld or quashed ?
(2) What order ?
BACKGROUND OF THE CASE:
23. The respondent Corporation published a notice Page 24 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 inviting tender for construction of sports complex at Naranpura, Ahmedabad, Gujarat under "Khelo India Scheme", promoted by Ministry of Youth Affairs and Sports, Government of India for Ahmedabad Municipal Corporation, on percentage basis. Said document, which is produced at Annexure-B, would disclose that respondent has proposed to build integrated sports complexes with aquatic centre in the State. To achieve this object and as first step towards its initiative, which is an integrated sports complex in the City of Ahmedabad, in the introduction of notice inviting tender at Clause 1.1.1, background with which tender was floated has been narrated. In other words, the object of floating said tender is traceable to the tender document itself, wherein it has been narrated as follows:
"Project of Sports complex is encompassing wet and dry sports. Indoor sporting activities shall be of National/International Standards competitive and for training purpose. The availability and quality of Sports Infrastructure is essential for a country to achieve success in the global sports arena. Such facilities encourage children and young adults to actively take part in sporting activities and equip them with the skills to succeed and shine in an international forum. The non-availability of infrastructure poses a major impediment to the development of sports in the country."Page 25 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022
C/SCA/5992/2022 ORDER DATED: 21/04/2022
24. This entire project of Sports Complex is inclined to encompass wet and dry sports. Indoor sporting activities intended to be of National and International Standards competitive and for training purpose and the availability and quality of sports infrastructure is essential for a country to achieve success in global sports arena and to encourage children and young to actively participate in sporting activities and well equip themselves so as to succeed in an international forum. As such, with the aforesaid above object this huge project running into initially Rs.584.25 crores, which later on came to be revised to Rs.590,56,77,876.24/- was envisaged. Thus, it can be seen that respondent with an intention to develop a facility which can act as a venue for national and international sporting events had decided to invite bids for construction of sports complex and to meet the intentional standards having the state of the art for both indoor and outdoor multi sports facilities along with appurtenant infrastructures, keeping in mind that the work in question is to be performed and completed by a bidder having adequate experience in similar field and is capable of performing said work specifying tender conditions.
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C/SCA/5992/2022 ORDER DATED: 21/04/2022 RE: POINT NO.(1)
25. Essentially, the decision making process is questioned by the petitioners in this petition and we are testing the said issue in the background of rival contentions. The tender document contained several conditions including eligibility criteria which has been prescribed for the bidders and the criteria for evaluation has also been specifically prescribed in the tender document. One of the essential terms of the tender was that the tenderer should have completed minimum one project of sports complex in last seven years which includes all types of civil works, structural works, etc. as specified thereunder. Same came to be modified by issuance of addendum by including the words and expression "or a project having infrastructure and facilities for indoor/outdoor sports for competition standards" which includes all types of civil works, structural works etc. For the purpose of immediate reference, few terms which are relevant and touching the controversy in question are reproduced hereinbelow: Page 27 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022
C/SCA/5992/2022 ORDER DATED: 21/04/2022 25.1 Clause 2.18 deals with opening and evaluation of technical bids. This 2.18 clause is followed by Clause 2.20 which relates to tests of responsiveness. Said 2.20 clause reads as under:-
"2.20 Tests of responsiveness 2.20.1 Prior to evaluation of Bids, the Authority shall determine whether each Bid is responsive to the requirements of the Bid documents as per Clause 2.13. Bid shall be considered responsive only if it does not contain any condition or qualification; and it is not non-responsive in terms here of.
2.20.2 The Authority reserves the right to reject any Bids which is non-responsive and no request for alteration, modification, substitution or withdrawal shall be entertained by the authority in respect of such Bid."
25.2 Clause 2.24 deals with correspondence with the bidder, which reads as under:
"2.24 Correspondence with the Bidder Save and except as provided in this Bid Documents, the Authority shall not entertain any correspondence with any Bidder in relation to the acceptance or rejection of any Bid. However, the Authority would display the result of the technical evaluation on its web portal including reasons for Page 28 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 non-responsiveness if any and the financial bid will be opened thereafter."
25.3 Clause 3 relates to criteria for evaluation. Clause 3.2 indicates stage 1: Preliminary evaluation whereas Clause 3.3 deals with stage 2: technical evaluation. This Clause 3.2 indicates that if the bidder is not meeting with minimum eligibility criteria as detailed out in Clause 2.2.2 his bid will be rejected and will not be considered for further stages of evaluation.
25.4 Technical parameters for evaluation which are mentioned in the tender document since relevant are reproduced hereunder:-
"Technical parameters for evaluation:
i) For demonstrating technical capacity and experience (the "technical capacity"), the Bidder, over the past 7 (seven) financial year preceding the Bid due date, have received payments for construction of similar project(s), or has undertaken construction works by itself in a percentage contract/EPC/PPP project, such that the sum total there of is more than Rs.1000 Cr.
(Rupees One Thousan Crores) (the "threshold technical capacity").
Page 29 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022
(iii) Shall have completed minimum 1 project of Sports Complex in last 7 years which includes all types of civil works, structural works, piling / diaphragm / raft foundation works, structural steel work, underground work and MEP works viz. Plumbing, firefighting, electrical, security system, fire alarm works like water supply, sewerage system, storm water drains, rain water harvesting, utility building, supplying installation and commissioning of sport equipment / sports wooden, PU and EPDM flooring and project cost should not be less than 50 crores
(iv) Shall have successfully completed at least - 1- projects with green silver gold or more rating from GRIHA/IGBC/USGBC with minimum cost of amount put to tender of Rs.150 Crores." 25.5 Sub-clause (iii) of Clause 3.3.9 indicates that bidder shall have completed minimum 1 project of Sports Complex in last 7 years which includes all types of civil works, structural works, etc. detailed out in this Clause but basic requirement is that bidder shall have completed 1 project of "Sports Complex"
in 7 years. An addendum was issued to said Clause and it reads:
Original Tender Condition Amended Tender Condition (in terms of Addendum 2) pg. 44 of Paper Book Pg. 122 of Paper Book "Shall have completed "Shall have completed minimum 1 minimum 1 Project of Project of Sports Complex in last Sports Complex in last 7 7 years or a project having years which includes all infrastructure and facilities for Page 30 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 types of civil works, Indoor/Outdoor Sports for structural works, piling / competition standards which diaphram / raft foundation includes all types of civil works, works, structural steel structural works, piling / work, underground work diaphram / raft foundation works, and MEP works viz..." structural steel work, underground work and MEP works viz..."
25.6 These Clauses of tender document also empowered authority with the power of acceptance or rejection of any applications / bids. Said Clause 2.6.1 reads under:-
"2.6.1 Not with standing any thing contained in this Bid documents, the authority reserves the right to accept or reject any Bid and to annul the Bidding Process and reject all applications / bids, at any time without any liability or any obligation for such acceptance, rejection or annulment, and without assigning any reasons therefore. In the event that the authority rejects or annuls all the Bids, it may, in its discretion, invite all eligible Bidders to submit fresh Bids hereunder."
25.7 This Clause is clearly indicating that decision to accept or reject the bid is an absolute domain of the authority and it is not under an obligation to assign any reason thereof also. These tender terms are followed by one another condition which is traceable to Appendix-I which obliges every bidder to Page 31 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 fill up the format which is known as letter comprising the technical bid. Certain clauses of Appendix-I are relevant for our purpose and same are reproduced hereunder:
"4. We acknowledge the right of the authority to reject our Bid without assigning any reason or otherwise and hereby waives to the fullest extent permitted by applicable law, our right to challenge the same on any account whatsoever."
"14. We hereby irrevocably waive any right or remedy which we may have at any stage at law or howsoever otherwise arising to challenge or question any decision taken by the authority in connection with the selection of bidders, selection of the bidder or in connection with the selection / bidding process itself, in respect of the above mentioned project and the terms and implementation thereof."
"16. We have studied all the bidding documents carefully and also surveyed the project. We understand that except to the extent as expressly set forth in the agreement, we shall have no claim, right or title arising out of any documents or information provided to us by the authority or in respect of any matter arising out of for relating to the bidding process including the award of agreement."
26. The aforesaid terms are basically indicating that upon proper evaluation it is right of authority to accept or reject any bid without assigning any reason and further any bidder who participated in the tender process cannot challenge such Page 32 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 decision even if it were to be without any reason. This format is undisputedly filled in by petitioners and submitted along with its bid as well.
27. A pre-bid meeting was held by the respondent on 7.12.2021 and the authorized representative of first petitioner who attended the pre-bid meeting and raised queries also affixed the signature to the attendance sheet of the said meeting at Sr. No.5 vide Annexure-R/1. It is pertinent to submit at this juncture that first petitioner raised a query in relation to the amended eligibility criteria (technical capacity) whereunder the query was raised to the following effect:
"We recommend to consider "Shall have completed minimum 1 Project of Sports Complex / Theme Park having Waterbody, Swimming Pool, Museum, etc. in last 7 years having project cost should not be less than 50 Crore"".
28. This clause which the petitioner intended to be incorporated in the tender document by way of addendum by the respondent would clearly indicate that petitioner was doubtful of possessing the pre-qualification criteria fixed for participation in the two bid system namely, being technically Page 33 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 qualified. The technical bids came to be opened on 1.2.2022 and preliminary evaluation including test of responsiveness was undertaken by the respondent and found four bids were to be responsive which was followed by commencement of technical evaluation. All the four bids offered by the tenderers including the petitioner were found to be responsive. On 17.2.2022, the technical consultant of the respondent Corporation sought for declaration to the effect that the work done by the petitioner namely, "Aatapi Wonderland" Theme Park for indoor/outdoor sports infrastructure and facilities on competition standards had been carried out by the petitioner and petitioner was also called upon by the respondent to furnish information of the two projects undertaken by it namely, (i) Aatapi Wonderland and (ii) Ajwa Theme Park and Bus Terminal facility, which resulted in petitioner responding to the same by contending that it had developed theme park known as "Aatapi Wonderland Project"
which was having infrastructure facilities for indoor/outdoor sports of competition standards and thereby it would meet the qualification fixed under the tender document.
29. It is the specific case of the respondent authority that to achieve the object of the huge project floated by it and to Page 34 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 create an infrastructure facility of a national or international standards as an integrated sports complex the condition has been fixed. The respondent authority has clearly taken a stand that petitioners are not fulfilling the required technical capacity in respect of present tender and the same is based upon the proper analysis of the material on record made available by the petitioners themselves. The petitioners have not successfully completed or partly constructed any Sports Complex for indoor or outdoor sports facilities of such a competition standards and they were aware from the beginning and as such, had requested that expression "Theme park" be added to the criteria for technical qualification in the pre-bid meeting held on 7.12.2021 and as such, the authority found that petitioners themselves had accepted the fact that they are not fulfilling technical criteria for the project in question.
30. Hon'ble Apex Court in the case of Agmatel India Pvt. Ltd. Vs. Resoursys Telecom reported in 2022 SCC OnLine SC 113 has held that scope of judicial review in contractual matters, and particularly in relation to the process of interpretation of tender documents is limited. It has been further held as under:
Page 35 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022
C/SCA/5992/2022 ORDER DATED: 21/04/2022 "38. The scope of judicial review in contractual matters, and particularly in relation to the process of interpretation of tender document, has been the subject matter of discussion in various decisions of this Court. We need not multiply the authorities on the subject, as suffice it would be refer to the 3-
Judge Bench decision of this Court in Galaxy Transport Agency (supra) wherein, among others, the said decision in Afcons Infrastructure Limited (supra) has also been considered; and this Court has disapproved the interference by the High Court in the interpretation by the tender inviting authority of the eligibility term relating to the category of vehicles required to be held by the bidders, in the tender floated for supply of vehicles for the carriage of troops and equipment. This Court referred to various decisions on the subject and stated the legal principles as follows: -
"14. In a series of judgments, this Court has held that the authority that authors the tender document is the best person to understand and appreciate its requirements, and thus, its interpretation should not be second- guessed by a court in judicial review proceedings. In Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., (2016) 16 SCC 818, this Court held:
"15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in Page 36 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given." (page
825) (emphasis supplied)
15. In the judgment in Bharat Coking Coal Ltd. vs. AMR Dev Prabha 2020 SCC OnLine SC 335, under the heading "Deference to authority's interpretation", this Court stated:
"51. Lastly, we deem it necessary to deal with another fundamental problem.It is obvious that Respondent No. 1
seeks to only enforce terms of the NIT.
Inherent in such exercise is interpretation of contractual terms. However, it must be noted that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes.
52. In the present facts, it is clear that BCCL and India have laid recourse to Clauses of the NIT, whether it be to justify condonation of delay of Respondent No. 6 in submitting performance bank guarantees or their decision to resume auction on grounds of technical failure. BCCL having authored these documents, is better placed to appreciate their requirements and interpret them. (Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., (2016) 16 SCC 818)
53. The High Court ought to have deferred to this understanding, unless it was patently perverse or mala fide.Page 37 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022
C/SCA/5992/2022 ORDER DATED: 21/04/2022 Given how BCCL's interpretation of these clauses was plausible and not absurd, solely differences in opinion of contractual interpretation ought not to have been grounds for the High Court to come to a finding that the appellant committed illegality." (emphasis supplied)
16. Further, in the recent judgment in Silppi Constructions Contractors v. Union of India, 2019 SCC OnLine SC 1133, this Court held as follows:
"20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case." (emphasis supplied) Page 38 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022
17. In accordance with these judgments and noting that the interpretation of the tendering authority in this case cannot be said to be a perverse one, the Division Bench ought not to have interfered with it by giving its own interpretation and not giving proper credence to the word "both"
appearing in Condition No. 31 of the N.I.T. For this reason, the Division Bench's conclusion that JK Roadways was wrongly declared to be ineligible, is set aside.
18. Insofar as Condition No. 27 of the N.I.T. prescribing work experience of at least 5 years of not less than the value of Rs. 2 crores is concerned, suffice it to say that the expert body, being the Tender Opening Committee, consisting of four members, clearly found that this eligibility condition had been satisfied by the Appellant before us. Without therefore going into the assessment of the documents that have been supplied to this Court, it is well settled that unless arbitrariness or mala fide on the part of the tendering authority is alleged, the expert evaluation of a particular tender, particularly when it comes to technical evaluation, is not to be second-guessed by a writ court. Thus, in Jagdish Mandal v.
State of Orissa, (2007) 14 SCC 517, this Court noted:
"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial Page 39 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical / procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;Page 40 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022
C/SCA/5992/2022 ORDER DATED: 21/04/2022 or Whether the process adopted or decision made is so arbitrary and irrational that the court can say:"the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached";
(ii) Whether public interest is affected.
If the answers are in the negative, there should be no interference under Article
226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action." (pages 531-532) (emphasis supplied)
19. Similarly, in Montecarlo Ltd. v. NTPC Ltd., (2016) 15 SCC 272, this Court stated as follows:
"26. We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinised by the technical experts and sometimes third-party assistance Page 41 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 from those unconnected with the owner's organisation is taken. This ensures objectivity. Bidder's expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decision-making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint.
Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to Page 42 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints." (page 288)
20. This being the case, we are unable to fathom how the Division Bench, on its own appraisal, arrived at the conclusion that the Appellant held work experience of only 1 year, substituting the appraisal of the expert four- member Tender Opening Committee with its own."
(Underlining emphasis in the original;
emphasis in bold supplied)
39. The above-mentioned statements of law make it amply clear that the author of the tender document is taken to be the best person to understand and appreciate its requirements; and if its interpretation is manifestly in consonance with the language of the tender document or subserving the purchase of the tender, the Court would prefer to keep restraint. Further to that, the technical evaluation or comparison by the Court is impermissible; and even if the interpretation given to the tender document by the person inviting offers is not as such acceptable to the Constitutional Court, that, by itself, would not be a reason for interfering with the interpretation given."
31. The documents which have been appended to the affidavit-in-reply has further indicated that amusement park / Theme park which has been stated to have been constructed at Page 43 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 Ajwa Garden, Vadodara is not found to be basically a Sports Complex by the authority and as such technical evaluation has been undertaken by the authority which is well within their domain to examine and opine and as such it can be safely presumed that petitioners were quite well aware about their situation from the initial stage itself. Such technical evaluation and expression of authority in considered opinion of this Court is outside the purview of this Court in judicial review in exercise of extraordinary jurisdiction. What kind of standards of a Sports Complex the authority wants, is the exclusive domain of the tender inviting authority itself and such expert technical evaluation in our opinion is outside the purview of this Court to examine and as such prima facie we are of the opinion that decision making process is not unfair or arbitrary which can permit us to interfere.
32. Further, we found from the assertion of authority's stand that original tender conditions which were amended in terms of amendments issued by the authority in that criteria of technical capacity the petitioners are not matching, as found by the authority. The queries which have been raised during the process appears to have been met with by the authority and the Page 44 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 very conduct of raising such queries itself is indicative of the fact that petitioners were quite aware about their situation in respect of technical capacity. The authority appears to have examined the issue of technical capacity of petitioners since sole reliance is based upon Aatapi Wonderland project and the said project appears to have been examined by the authority in the form of queries, raised during the process and the conduct of the petitioners of having not produced at relevant point of time before the respondent the "RFQ cum RPF" documents of the Theme project as mentioned in paragraph 7.27 of affidavit-in- reply is indicative of the fact that petitioners were aware of the fact that they were not technically sound or qualified for the project. When the work is of highly specialized in nature, it is for the authority to examine and expect certain standard of work to meet with technical viability especially when the authority would be spending huge amount of money to create an international standard infrastructure and as such it is well within their domain to insist only highly qualified bidders who can meet with the project requirement would be qualified. When the entire decision making process is based upon proper application of mind and upon proper examination of relevant Page 45 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 documents including the queries which cropped up during the process, we see no reasons to disbelieve the stand of authority that entire process is undertaken in a transparent and fair manner and we find that the technical experts have evaluated all the documents and have taken a conscious decision of this commercial project and we are satisfied that the decision making process is not at fault in any manner.
33. In the light of aforesaid situation even a comparison which has been made also apparently reflects that it is ill- founded since the tender inviting authority has considered the basic work requirement of constructions of Sports Complex and as such in the absence of any mala fides, we are not inclined to act as an appellate authority upon the conscious decision of respondent authority to substitute our views. Further from the assertion of authority's stand, it has undertaken a preliminary evaluation and test of responsiveness of all 4 bidders, who were found to be responsive and later on, the technical evaluation of bids which were undertaken in which 3 out of 4 bids were found to have technically qualified and the authority has undertaken the preliminary evaluation as well as technical evaluation of all 4 bidders and technical consultant and financial consultant have Page 46 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 also examined the issue and after having carried out the entire process before the conscious decision is taken. Hence, we are of the considered view that decision making process appears to be just and proper. Additionally, we found that even the authority has also examined that the work completion certificate was also not issued by competent officer in respect of work undertaken by petitioners to indicate their experience and further all these issues and recommendations have been examined by as many as 12 high ranking officers and the recommendations have been considered from 05.03.2022 to 08.03.2022 and all have concurrently opted and opined to disqualify the petitioners for want of technical credentials and as such, the decision taken against the petitioners does not appear to be unjust or improper or suffering from the vice of any non application of mind. Following are the officials, who had examined the recommendations:-
"a. Assistant Engineer (Naranpura) b. Assistant City Engineer (Naranpura) c. Deputy City Engineer - 2 (West Zone) d. Additional City Engineer (West Zone) e. Assistant Engineer (Light) f. Assistant City Engineer (Light) Page 47 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 g. Deputy City Engineer (Light) h. Additional City Engineer (Light) i. City Engineer j. Deputy Municipal Commissioner (Building Projects) k. Municipal Commissioner"
34. The interpretation sought to be putforward by the tender proponent would not appeal to this Court and that by itself would not be a reason for interfering with interpretation extended by the notice inviting authority. In this background, the contention of Shri M.R.Bhatt, learned Senior Counsel that petitioner meets the criteria prescribed under Clause 2.2.2 namely, petitioner has completed the sports project by referring to its reply produced at Annexure-D (collectively) would amount to this Court sitting in the arm-chair of the experts and substituting its view to that of the experts or substituting views of this Court to that of the notice inviting authority. To put it differently, this Court cannot undertake the exercise of reading the conditions of tender by using a magnifying glass and arrive at a conclusion that the works done by the petitioner is similar to the work which is prescribed under tender notification. Page 48 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022
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35. Shri M.R.Bhatt, learned Senior Counsel has also relied upon the certificate dated 9.2.2022 issued by the auditors to contend that bifurcation of the amounts of sports activities at "Aatap Wonderland (Ajwa)" would indicate that essentially the Theme Park developed also includes the sports complex. We are of the considered view that if such interpretation is sought to be putforth, it would amount to this Court substituting its preferred interpretation of the tender condition with interpretation adopted by respondent Corporation who is the author of the tender document and same is impermissible. The respondent being clear in its thought process as to what is the requirement expected from a bidder for constructing a sports complex would be best judge to arrive at a conclusion as it would understand its requirement for achieving the object envisaged under the tender document. Thus, any analysis of facts interpreting the documents relied upon by petitioner to arrive at a conclusion that documents annexed by petitioner would also meet the criteria prescribed under tender document would amount to an exercise being undertaken by this Court by eclipsing the views of tender inviting authority. In fact, we notice that petitioner company vide its email dated 18.2.2022 Page 49 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 has forwarded certain photographs to substantiate its claim and though technical consultant of respondent Corporation indicated that further evaluation of petitioner's bid can be undertaken on the basis of self-declaration, the financial consultant sought verification of certain additional documents of the projected relied upon by the petitioner company on certain aspects. This resulted in reply being forwarded by the petitioner on 21.2.2022 which perforced the financial consultant to prob and verify the details provided by the bidders including the petitioner and found that Theme Park at Ajwa cannot be construed to be a sports complex having infrastructure facilities for indoor/outdoor sports of competition standards and as such, recommended for disqualification. The photographs which are heavily relied upon by learned Senior Counsel, Mr. M.R.Bhatt would also indicate the following facts:
(a) Theme Park "Aatapi Wonderland" executed by the petitioner is a children's play area and it does not meet the criteria of sports complex or "indoor/outdoor of competition standards".
(b) Children play the sports of "Langdi" in a Theme Park.Page 50 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022
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(c) The main entrance gate has nothing to do with sporting activities.
(d) The landscaping and beautification has nothing to do with sporting activities.
(e) Net enclosed practice areas of cricket though can be considered as a sporting activity, it would not be a play area for outdoor sports of competition standards which can be viewed by the public.
(f) Persons found in the photographs playing different games like beach volleyball, mini (children's) golf, passing the parcel, trampoline jumping, throwing ring to win a prize, etc. are all seem to be wearing same clothes and these activities would not partake the sporting activity as prescribed under tender notification.
36. In fact, the respondent has independently evaluated the information and found that "Aata Wonderland" is a Theme Park for children joy rides and has nothing to do with competition sports or sporting activities in general and so also Page 51 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 "Theme Park at Ajwa Garden, Vadodara".
37. The work to be executed under the subject tender according to respondent is of highly specialized in nature and for creating a civil infrastructure to be made available to the residents at Ahmedabad and for being used for national and international competition level sporting events in the long term. Thus, satisfaction which will have to be arrived at with regard to bidders meeting the conditions prescribed primarily rests upon the authority inviting the bids and it would be within its right to ensure that only highly qualified bidders having requisite expertise in the field would participate in the tender process. At this juncture, it would be apt to recapitulate the query raised by the petitioner in the pre-bid meeting held on 7.12.2021 whereunder it recommended the respondent to incorporate or consider the completion of one project of sports complex or Theme Park having water body, swimming pool, museum etc. in last seven years, the cost of which would not be less than 50 crores as an eligibility criteria and this was considered and turned down by respondent Corporation. Hence, it is too late in the day for the petitioner to contend that eligibility criteria prescribed under tender notification is met by petitioner and its Page 52 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 attempted justification has been in vain.
38. In addition to this, we have also found that there is a clear uncontroverted assertion of the authority that there is a material suppression on the part of petitioners while preferring present petition before this Court and aforementioned situation was clearly well within the knowledge of petitioners which relates to their disqualification and they conveniently suppressed the relevant papers of Aatapi Wonderland and the tender document of work of Aatapi Wonderland. But as such, we are not on the said issue about conduct but overall consideration of record indicates that there is a conscious decision taken by the authority, which appears to have been communicated to the petitioners, which was well within their knowledge and as such mere non assigning of any reason would not alter the situation in our considered opinion, in aforesaid peculiar background of facts on hand.
39. Now, if we considered another main plank of arguments of Shri Manish Bhatt, learned senior counsel appearing for the petitioners that reasons are not reflecting in the impugned communication and as such, it requires to be Page 53 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 quashed and set aside. Insofar as the contention raised by Shri M.R.Bhatt, learned Senior Counsel with regard to violation of principles of natural justice on the ground of reasons having not been assigned and reliance placed in the matter of Adani Ports and SEZ (supra) would be of no avail to petitioner for reasons more than one. Firstly, in the case of Adani Ports and SEZ (supra), this Court had noticed that disqualification thereunder was not a disqualification simplicitor but it would be disqualifying the bidder from participating in any future bids for a period of two years and this swayed in the mind of this Court to arrive at a conclusion that in circumstances which would result in flowing of civil consequences, such rejection should be made by a reasoned order. Whereas in the instant case, such a situation has not arisen. Rejection of petitioner's bid is "rejection simplicitor" on the ground of not having passed the test of technical bid. It would be appropriate to note at this juncture that petitioner while offering its bid has with open eyes furnished a letter dated 12.1.2022 (at page 560) whereunder the petitioner had acknowledged right of the authority namely, respondent to reject bid without assigning any reason or otherwise waiving its right to challenge the same on this count. Page 54 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022
C/SCA/5992/2022 ORDER DATED: 21/04/2022 In the words of petitioner, it reads:
"We acknowledge the right of the Authority to reject our Bid without assigning any reason or other wise and here by waive, to the fullest extent permitted by applicable law, our right to challenge the same on any account whatsoever."
40. It would be apposite to note the right of respondent Corporation to accept or reject any or all applications/bids. In Clause 2.6.1, the condition stipulated and as agreed to be binding by the petitioner reads thus:
"2.6.1 Notwithstanding anything contained in this Bid Documents, the Authority reserves the right to accept or reject any Bid and to annul the Bidding Process and reject all Applications / Bids, at any time without any liability or any obligation for such acceptance, rejection or annulment, and without assigning any reasons therefore. In the event that the Authority rejects or annuls all the Bids, it may, in its discretion, invite all eligible Bidders to submit fresh Bids hereunder."
41. Further, apart from this undisputedly while entering upon the tender process, the authority has as a part of requirement expected every bidder to fill in letter, comprising the technical bid in the form of Appendix-I, format of which is reflecting on page 74. The Clauses contained in the said letter Page 55 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 precisely Clauses 4, 14 and 16 and a clause relates to certificate which would also clearly indicate that the petitioners cannot expect the detailed reasons for their disqualification and more particularly when they were quite aware about this stand from the beginning and as such this non-assigning of reason in impugned communication is of no consequence. Hence, we are of the considered opinion that the decision in question cannot be assailed on that count also.
42. In the light of aforesaid background of facts, Shri Manish Bhatt, learned senior counsel has relied upon few decisions of Hon'ble Apex Court including this Court to contend that in a situation like this judicial review can be undertaken in exercise of extraordinary jurisdiction. First judgment which has been relied upon is the decision in the case of Municipal Corporation, Ujjain and another (supra) and the proposition which has been mentioned in the said decision by Hon'ble Apex Court, we cannot dispute in any form that judicial review of administrative action is intending to prevent arbitrariness and the purpose is to put check on the authority whether the decision is sound or not. Powers of judicial review are always available in exercise of extraordinary jurisdiction provided the Page 56 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 Court finds any perversity or arbitrariness or any mala fides, which aspects are completely missing in the present case on hand and as such, we respectfully express our opinion that this decision is of no assistance to the petitioners. So far as judgment in the case Galaxy Transport Agencies, Contractors, Traders, Transports and Suppliers (supra) is concerned, Hon'ble Apex Court has reiterated the principles of judicial review and also in a subsequent decision in the case of N. G. Projects Limited (supra) and we are of the opinion that there can be no dispute about such proposition provided the case is made out by the petitioners to attract such contingency which is completely missing in the present case in our considered opinion.
43. As against this, the decisions which have been relied upon by Shri Kamal Trivedi, learned senior counsel appearing for the respondent authority are to some extent attracts the present scenario. Several decisions have been placed for our consideration but few of them appears to be of assistance and as such we deem it proper to refer to few of the observations hereunder. The first decision relied upon by the respondent authority through their learned Senior Counsel is the decision in Page 57 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 the case of Silppi Constructions Contractors (supra) in which matter also, there was an issue related to non-assigning of reasons while rejecting the tender or the appeals as well. While dealing with such situation, Hon'ble Apex Court has clearly observed that in contracts involving technical issues, the Court should be more reluctant to interfere unless there is apparent arbitrariness, irrationality or bias of any nature. Paragraphs 19, 20 and 25 appears to be relevant to the issue in question, we may reproduce the said observations hereunder:
"19.This Court being the guardian of fundamental rights is duty bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court in all the aforesaid decisions has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clearcut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The Courts must realise their limitations and the havoc which needless interference in commercial matters can Page 58 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 cause. In contracts involving technical issues the courts should be even more reluctant because most of us in judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give "fair play in the joints" to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer."
"20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case."
"25. That brings us to the most contentious issue as to whether the learned single judge of the High Court was right in holding that the appellate orders were bad since they were without reasons. We must remember that we are dealing with purely Page 59 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 administrative decisions. These are in the realm of contract. While rejecting the tender the person or authority inviting the tenders is not required to give reasons even if it be a state within the meaning of Article 12 of the Constitution. These decisions are neither judicial nor quasijudicial. If reasons are to be given at every stage, then the commercial activities of the State would come to a grinding halt. The State must be given sufficient leeway in this regard. The Respondent nos. 1 and 2 were entitled to give reasons in the counter to the writ petition which they have done."
44. Yet another decision of a very recent past delivered by the Hon'ble Apex Court on 31.01.2022 in the case of National High Speed Rail Corporation Limited (supra) in which matter also, the controversy related to technical bid having been rejected on the ground that same is non-responsive. While dealing with said controversy, the Hon'ble Apex Court has clearly expounded the proposition in respect of exercise of discretion by the Courts and has observed that when bidders have participated in the tender process with open eyes and having accepted the terms and conditions of the tender with full knowledge thereafter it is not open to them to raise any grievance in respect of even clauses contained in the tender document and it has been observed that no interference in the tender process would be called for in the midway till final Page 60 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 decision on awarding of contract is taken. It has also been held that in the mega project of such nature, there shall be no interference. The relevant observations contained in paragraphs 88 and 92, we may deem it proper to incorporate hereunder:
"88. Now so far as the view taken by the High Court in the impugned judgment and order that Clause 28 under Clause (e) of Option A Section 1 and Clause 42.5 of ITB are patently illegal, inasmuch as they seek to curtail the right of the bidders to challenge the rejection of their bid in a multi-stage bidding process at the earliest, and before the award of the contract is concerned, at the outset, it is required to be noted that as such the aforesaid clauses of the ITB were not under challenge before the High Court. Even otherwise, it is required to be noted that Clauses 28.1 and 42.5 of ITB were well within the knowledge of the original writ petitioner at the time of participating in the tender process. The aforesaid clauses of the ITB were put to the knowledge of all the participants/bidders and the same applied to all. Despite the above clauses in the ITB, original writ petitioner participated in the tender process. Therefore, once having accepted the terms and conditions of the tender process with the full knowledge of Clauses 28.1 and 42.5, and participated with full knowledge, thereafter, it was not open for the original writ petitioner to make a grievance with respect to such clauses."
"92. The object and purpose of providing aforesaid clauses is very clear namely no interference with respect to the tender process midway and till the final decision on awarding the contract is taken. Even, we are also of the opinion that in a Mega project, which is funded by a foreign country, there shall not be any interference with the tender process midway till the final decision is taken to award the Page 61 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 contract. The reason behind this is that any delay in such a project may increase the ultimate project cost and it may affect the future investment by the foreign country, which would never be in the larger nation's interest."
45. Yet another decision delivered by Hon'ble Apex Court on 31.01.2022 itself is in the case of Agmatel India Pvt. Ltd. (supra) in which matter, there was a rejection of tender namely, technical bid. Hon'ble Apex Court, after analyzing all the relevant issues, has held that principles of equity and natural justice stay at a distance and power of judicial review will not be invoked. A reference is made to even earlier decision of Hon'ble Apex Court and as such, we deem it proper to reproduce paragraph 39 hereunder:-
"39. The above-mentioned statements of law make it amply clear that the author of the tender document is taken to be the best person to understand and appreciate its requirements; and if its interpretation is manifestly in consonance with the language of the tender document or subserving the purchase of the tender, the Court would prefer to keep restraint. Further to that, the technical evaluation or comparison by the Court is impermissible; and even if the interpretation given to the tender document by the person inviting offers is not as such acceptable to the Constitutional Court, that, by itself, would not be a reason for interfering with the interpretation given."Page 62 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022
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46. Yet another decision very recently delivered by the Hon'ble Apex Court on 21.03.2022 is in the case of N.G.Projects Limited (supra) wherein also, almost similar proposition is reiterated and in paragraph 23, it has been clearly propounded that Writ Court should refrain itself from imposing its decision over the decision of the authority. We are of the considered view that observations found therein are relevant to the facts on hand, we deem it proper to reproduce paragraphs 23 and 26 hereunder:
"23. In view of the above judgments of this Court, the Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the presentday economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still the Court should refrain from interfer- ing in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to Page 63 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work."
"26. A word of caution ought to be mentioned herein that any contract of public service should not be interfered with lightly and in any case, there should not be any interim order derailing the entire process of the services meant for larger public good. The grant of interim injunction by the learned Single Bench of the High Court has helped no-one except a contractor who lost a contract bid and has only caused loss to the State with no corresponding gain to anyone."
47. Yet another persuasive judgment delivered by the Delhi High Court in the case of ERA Infra Engineering Limited (supra) is also on the issue of non-assigning of reasons and as noticed hereinabove, once the technical evaluation has taken place by experts in the field, we are not inclined to quash the decision simply because the reasons for rejection are not communicated. We have found from the assertion of the respondent-authority in the case on hand that reasons for disqualification of petitioners assigned are very much reflecting on record and on the file as discussed hereinabove and therefore, mere non-communication of it may not alter the Page 64 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022 C/SCA/5992/2022 ORDER DATED: 21/04/2022 situation in favour of the petitioners.
48. Thus, viewed from any angle, we are of the considered view that it cannot be construed or held that decision making process was flawed. Hence, we are of the considered view that communication dated 8.3.2022 at Annexure-A would not call for interference and accordingly, point No.1 is answered against petitioner and in favour of respondent.
RE: POINT NO.2
49. For the reasons afore-stated, we proceed to pass the following ORDER
(i) Special Civil Application is dismissed.
(ii) No order as to costs.
(ARAVIND KUMAR,CJ) (ASHUTOSH J. SHASTRI, J) RADHAKRISHNAN K.V. Page 65 of 65 Downloaded on : Wed Apr 27 20:19:56 IST 2022