Orissa High Court
Manas Ranjan Rout vs State Of Odisha & Others ....... ... on 31 May, 2021
Author: B.P. Routray
Bench: B.P. Routray
IN THE HIGH COURT OF ORISSA AT CUTTACK
WRIT PETITION (CIVIL) No.21779 OF 2019
(An application under Articles 226 & 227 of the Constitution of India.)
Manas Ranjan Rout ...... Petitioner
Versus
State of Odisha & Others ....... Opposite Parties
Advocate(s) appeared in this case by Video Conferencing mode:-
For Petitioner : Mr. Asok Mohanty, Senior Advocate
assisted by Mr.P.C.Nayak, Advocate
For Opposite Parties : Mr.S.S.Das, Senior Advocate
Assisted by Mr.J.K.Khuntia, Advocate
For O.P.No.7
Mr.M.S.Sahoo,
Additional Government Advocate
CORAM: THE CHIEF JUSTICE
JUSTICE B.P. ROUTRAY
JUDGMENT
31st May, 2021 B.P. Routray,J.
1. The Petitioner challenges the qualification of Opposite Party No.7 in the technical bid and the consequent work order issued in his favour.
2. A tender call notice was issued on 27th May, 2019 for multiple works under the Pradhan Mantri Gramya Sadak Yojna (PMGSY) including the work, "TO7 MV 126 to Potel (0/0) to 15/0 Km and W.P.(C) No.21779 of 2019 Page 1 of 21 construction of Bridges at 14th Km" vide package No.OR-20-415(Part-I) & OR-20LB-27". The relevant clause containing the of eligibility criteria, as per Section 2 of the Standard Bidding Document (SBD), reads as follows:
"3. Eligibility Bidders 3.1 This Invitation for Bids is open to all eligibility bidders meeting the eligibility criteria as defined in ITB. The applicant should be a private or government-owned legal entity. For package size exceeding Rs.10 crore, the Joint Ventures are allowed.
3.2 Bidders shall not be under a declaration of ineligibility for corrupt and fraudulent practices by the Central Government, the State Government or any public undertaking, autonomous body, authority by whatever name called under the Central or the State Government.
4. Qualification of the Bidder 4.1 All bidders shall provide in Section 3, Forms of Bid and Qualification information, a preliminary description of the proposed work schedule, including drawings and charts, as necessary.
4.1.1 Bidder should have valid registration with Employees Provident Fund organization under EPF and Miscellaneous Provisions Act, 1952, which should be produced at the time of signing of the agreement, failing which the bidder will be treated as backing out from the tendering process & action will be initiated as per Clause 16.6.
4.2 All bidders shall include the following information and documents with their bids in Section 3, Qualification Information unless otherwise stated in the Appendix to ITB:
(a) copies of original documents defining the constitution or legal status, place of registration, and principal place of business;W.P.(C) No.21779 of 2019 Page 2 of 21
written power of attorney of the signature of the Bid to commit the Bidder;
(b) total monetary value of civil construction works performed for each of the last five years;
(c) experience in works of a similar nature and size for each of the last five years, and details of works in progress or contractually committed with certificates from the concerned officer not below the rank of Executive Engineer or equivalent;
(d) evidence of ownership of major items of construction equipment named in Clause 4.4 B (b) (i) ITB or evidence of arrangement of possessing them on hire/lease/buying as defined therein.
(e) details of the technical personnel proposed to be employed for the Contract having the qualifications defines in Clause 4.4 B (b)
(ii) of ITB for the construction.
(f) reports on the financial standing of the Bidder, such as profit and loss statements and auditor's reports for the past three years;
(g) evidence of access to line(s) of credit and availability of other financial resources facilities (10 percent of the contract value) certified by banker (the certificate being not more than 3 months old.)
(h) authority to seek references from the Bidder's bankers;
(i) information regarding any litigation or arbitration during the last five years in which the Bidder is involved, the parties W.P.(C) No.21779 of 2019 Page 3 of 21 concerned, the disputed amount, and the matter;
(j) proposals for subcontracting the
components of the Works for
construction/up-gradation, aggregating to not more than 25 percent of the Contract Price; and subcontracting of part/full routine maintenance of roads after completion of construction work.
(k) the proposed programme of construction and Quality Management Plan proposed for completion of the work as per technical specifications and within the stipulated period of completion."
(emphasis supplied)
3. Three bidders participated in the bid including the Petitioner and Opposite Party No.7. The result of technical evaluation was published on 10th July, 2019 under Annexure-3. In the said technical evaluation, the Petitioner was stated to be qualified, whereas Opposite Party No.7 was stated to be disqualified as the bid security furnished is not in favour of concerned Executive Engineer, who is the Executive Engineer, Rural Works Division-II, Malkangiri. As per the special condition of the tender, if any bidder is aggrieved by the decision of the technical bid evaluation, he can submit his grievance to the Chief Engineer, PMGSY, Rural Works within five working days from the date of publication of the result of the technical bid for decision by the Tender Grievance Redressal Committee.
4. Accordingly, Opposite Party No.7 submitted a petition and the Petitioner submitted his objection thereto. The Tender Grievance Redressal Committee consisting of four members Viz. the Chief W.P.(C) No.21779 of 2019 Page 4 of 21 Executive Officer, OSRRA as Chairman, the Chief Engineer, PMGSY, Superintending Engineer, PMGSY and ASA-Cum-Deputy Secretary to Government, R.D. Department as member considered the grievance of Opposite Party No.7 and the objection thereto of the Petitioner. The relevant observations of the Committee are reproduced below:
"On the petition of Sri Pramod Kumar Swain, S.E., R.W.Circle, Sunabeda was directed to verify the EMD with the concerned bank vide this office letter No.17945 dtd.18.07.2019. On the instruction from C.E.s office, S.E. has requested the issuing bank, Panjab National Bank, Malkangiri for genuineness for the EMD deposited with the tender document. The Panjab National Bank, Malkangiri has confirmed vide their letter dtd.24.07.2019 that the said deposit receipt i.e.. A/c No.763600DP00056739 Cust.ID-LG1000653 has been pledged in favour of E.E., R.W. Division-II, Malkangiri. Regarding the grievance of Sri Manas Ranjan Rout against Sri Pramod Kumar Swain for this package it is found that (1) In the affidavit of no relation certificate, the name of E.E., R.W. Division-II, Malkangiri has been mentioned.
(2) In the affidavit relating to EPF certificate, the name of E.E., R.W.Division, Malakangiri-I has been mentioned.
(3) Regarding line of credit the bidder Sri Swain has submitted a bank certificate with a credit capacity of Rs.20 lakhs. The line of credit required for this package is Rs.97.4 lakhs. But, evidence of access to line of credit and availability of other financial resources is not a mandatory certificate for qualification of the bid.
The Committee examined all the grievances pertaining to package No.OR-200415 (Part-I) and after detail discussion and deliberation on the W.P.(C) No.21779 of 2019 Page 5 of 21 grievances put forth by all the three participating bidders opined that, as the tender has been invited for the 1st time after splitting so, the tender should be considered as 1st time single bid. As out of the three bidders participated in the tender, two bidders had been disqualified in the technical bid evaluation by S.E., the tender should have been rejected as 1st time single bid. However, on receiving the clarification from the Panjab National Bank on the EMD by S.E., R.W. Circle, Sunabeda may reexamine the bids and other relevant documents in light of the clarification by the Bank and the grievance put forth by all the bidders. If no other bidder is qualified in the technical bid, then the bid may be considered as 1st time single bid and should be rejected. If any other bidder qualified in the same package then the financial bids of the technically qualified bidders may be opened and submitted to this office for further course of action.
Further, regarding experience of bridge work the S.E. has reported that this package consist of a LSB of 24 mtr. box-cell bridge, 50 mtr, length of concrete road and 104 mtr. toe wall. Sri Manas Ranjan Rout has executed a PMGSY work under package No.OR-20-218/B-II(2016-17) for an amount of Rs.259.02 lakhs against the requirement of Rs.225.95 lakhs for qualifying of this package. The S.E. has submitted the detailed breakup for the package No.OR-20-218, in which the bidder had executed 2 nos. of slab culvert of 1x2x1.5 and 2 nos. of slab culvert of 1x3x1.5. So the decision of S.E. on evaluation regarding bridge work is correct." (emphasis supplied)
5. Based on the decision of the Redressal Committee, the technical bid of Opposite Party No.7 was accepted.
W.P.(C) No.21779 of 2019 Page 6 of 216. In the financial bid, Opposite Party No.7 was found L-1 and accordingly work order was issued in his favour on 11th September, 2019 under Annexure-10.
7. The Petitioner contends that Opposite Party No.7 was disqualified as in the bid document he pledged Earnest Money in favour of Rural Works Division-I, instead of Rural Works Division-II and the affidavit submitted by Opposite Party No.7 also shows pledging of EMD (Earnest Money Deposit) in favour of the Executive Engineer, Rural Works Division No. I. Further, the evidence of access to line of credit and availability of other financial resources furnished by Opposite Party No.7 is not matching to 10% of the contract value as per the requirement prescribed at Clause-4.2(g) under Instruction to Bidders (ITB) in the SBD. Therefore, the acceptance of technical bid of Opposite Party No.7 by the authority is grossly illegal and violation of tender condition.
8. It needs to be mentioned here that 10% of contract value comes to Rs.97.4 lakhs and Opposite Party No.7 furnished line of credit facilities of Rs.20.0 lakhs only.
9. Opposite Parties 1 to 6, who are State authorities, have filed their reply jointly stating that the requirement of furnishing line of credit up to 10% of the contract value as per Clause 4.2(g) of ITB is not a mandatory condition and therefore cannot be a ground to reject the offer of Opposite Party No.7. They further state that after opening of the technical bid by technical evaluation committee under the Chairmanship of the Superintending Engineer (Opposite Party No.5), the bid of Opposite Party No.7 was disqualified as it was found that he pledged the bid security in favour of the Executive Engineer, Rural Works Division-
W.P.(C) No.21779 of 2019 Page 7 of 21I, Malkanagiri, instead of the Executive Engineer, Rural Works Division-II, Malkangiri. Opposite Party No.7 then submitted a representation before the Grievance Redressal Committee contending that the bid security submitted by him has in fact been pledged in favour of the Executive Engineer, Rural Works Division-II, Malkangiri. However, since it had been smudged by a drop of water, it appeared as Division-I. In order to verify such contention the Panjab National Bank (PNB), Malkangiri was contacted. PNB confirmed by their letter dated 24th July, 2019 that the deposit in A/c No.763600DP00056739 Cust.ID- LG1000653 was genuine and was pledged in favour of the Executive Engineer, Rural Works Division-II, Malkangiri. Therefore, the contention of Opposite Party No.7 raised in the grievance petition was accepted and he was declared qualified. As such work order was issued in favour of Opposite Party No.7, who stood L-1 in the financial bid.
10. Opposite Party No.7 contests the case by submitting his reply on the same line with State-Opposite Parties. He further submits that the rate quoted by the Petitioner was 1.11% less than the estimated cost whereas the rate quoted by him is 2.39% less and the amount of difference comes to Rs.11,56,851/-. It is also submitted by Opposite Party No.7 that upon execution of work order, he has already completed major chunk of work in the meantime and running bill has been released in his favour and the stipulated date of completion of work is 10th September, 2020.
11. From the pleadings of the parties that it appears that the Petitioner seeks the disqualification of Opposite Party No.7 on two grounds: first, that he has not pledged the EMD in favour of Rural Works Division-II W.P.(C) No.21779 of 2019 Page 8 of 21 and secondly, the evidence of access to line of credit is not matching up to 10% of the work value thereby violating the requirement at Clause 4.2(g) of the ITB.
12. The Supreme Court in Galaxy Transport Agencies, Contractors, Traders, Transports and Suppliers vs. New J.K.Roadways, Fleet Owners and Transport Contractors 2020 SCC OnLine SC 1035, has held 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 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)
15. In the judgment in Bharat Coking Coal Ltd. v. AMR Dev Prabha 2020 SCC OnLine SC 335, under the heading "Deference to authority's interpretation", this Court stated:W.P.(C) No.21779 of 2019 Page 9 of 21
"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. Given how BCCL's interpretation of these clauses was plausible and not absurd, solely differences in opinion of contractual interpretation ought not to have been grounds for the High Court to come to a finding that the appellant committed illegality."
16. Further, in the recent judgment in Silppi Constructions Contractors v. Union of India, 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 W.P.(C) No.21779 of 2019 Page 10 of 21 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."
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 review is invoked in matters relating to W.P.(C) No.21779 of 2019 Page 11 of 21 tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;
or Whether the process adopted or decision made is so arbitrary and irrational that the court can say:
"the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached";
(ii) Whether public interest is affected.W.P.(C) No.21779 of 2019 Page 12 of 21
If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action."
19. Similarly, in Montecarlo Ltd. v. NTPC Ltd., 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 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 W.P.(C) No.21779 of 2019 Page 13 of 21 should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints."
(page 288)
13. In the present case, so far as first contention of the Petitioner is concerned that EMD has not been pledged in favour of the concerned Executive Engineer, the same has been dealt with in detail by the Grievance Redressal Committee in their decision dated 30th July, 2019. We do not see any fault in such assessment of the redressal committee on the face of the letter of the Bank under Annexure-B to the counter of Opposite Party Nos.1 to 6. The Grievance Redressal Committee is the authority constituted as per the tender conditions in the SBD and thus, their decision based on factual verification is not found with any illegality or arbitrariness.
14. With regard to second contention of the Petitioner that the authorities have illegally exempted Opposite Party No.7 from requirement of furnishing evidence of access to line of credit up to 10%, it is the reply of Opposite Parties that the same is not a mandatory condition.
W.P.(C) No.21779 of 2019 Page 14 of 2115. Here, the Petitioner relies on a decision of the Supreme Court rendered in the case of Vidarbha Irrigation Development Corporation v. Anoj Kumar Garwala 2019 SCC OnLine SC 89. In the said case, one of the eligibility requirements was to furnish performance security in shape of Demand Draft/BG/FDR, which Res.No.2, the selected L-1 bidder, did not furnish for the specified period. The question was, whether it is possible for the appellant (tender inviting authorities) to condone the initial bank guarantee being given for an admittedly incorrect period. The Supreme Court after analyzing the tender conditions observed that:
"8. What is important to note is that questions were raised as to the period of bank guarantee, and the Department specifically relied upon a GR dated 12.02.2016, together with the corrigenda thereto, and stated that as a policy decision, modification in this Clause cannot be made. It is clear, therefore, that a modification to this very tender condition was suggested at the pre-tender stage, and was rejected to the knowledge of all prospective tenderers. Sub-clause 4 of Clause 2.15, therefore, becomes important in this context as the Respondent No. 2 was put on notice from the beginning itself that if there is any deviation in terms of the period of bank guarantee, its bid would be treated as non-responsive.
9. Clause 2.22, extracted herein above, also makes reference to the self-same PWD Circular dated 12.02.2016 with the corrigenda. A reading of this Clause would also show that a bank guarantee that is to be furnished has to be valid up to one month after the defect liability period which, admittedly, is for a period of 40 months.
xxx xxx xxx
11. We may now come to Clause 2.35 which makes it clear that a substantially responsive bid is one which conforms to all terms, conditions and specifications without any material W.P.(C) No.21779 of 2019 Page 15 of 21 deviation. Inter alia, a material deviation is one which limits, in any substantial way, or is inconsistent with the bidding documents or the employer's rights or bidder's obligations under the Contract. It cannot be gainsaid that a bank guarantee, which is for a period of six months and not for a period of 40 months, would not only be directly inconsistent with the bidding documents but would also be contrary to the employers' right to a bank guarantee for a longer period. This being the case, since a material deviation from the terms and conditions of the tender document was made by Respondent No. 2, when it furnished a bank guarantee for only six months initially, it would be clear that such bid would have to be considered as not substantially responsive and ought to have been rejected by the employer. Clause 2.35.2 also makes it clear that such a bid would have to be rejected outrightly and may not be subsequently made responsive by correction.
12. It is important to note that the Government Resolution dated 12.04.2017, which applies to the PWD Department, has superseded the PWD Circular dated 12.02.2016 and corrigenda dated 17.03.2016 and 14.07.2016. However, so far as the tender conditions of the tender in question are concerned, Clause 2.18 is material and is set out hereunder:-
"Earnest Money:
All tenderers shall pay entire E.M.D. & the mode of payment is indicated as specified at Sr. No. 4, 6, 4 of Section IV.
As per GR PWD 12.04.2017 - E.M.D. shall be paid online through bank account of own by contracts, contractor shall submit the undertaking that the EMD has been paid through his bank account and he will be responsible for any legal action under IPC if it is found false."
13. As against this, when it comes to performance security, the PWD Circular of 12.02.2016 and its corrigeneda have alone to be followed in the case of performance security. This being the case, it is not possible to advert to the GR dated 12.04.2017 for W.P.(C) No.21779 of 2019 Page 16 of 21 the purpose of performance security as it applies only in respect of earnest money, as is clear from Clause 2.18 of the Tender.
14. The fact that a superseded Government Resolution continues to be utilised for the purpose of performance security may raise eyebrows. However, insofar as the tendering public is concerned, they have been put on notice that the performance security that is to be furnished, will only be as per the GR dated 12.2.2016 and corrigenda and not as per the GR dated 12.04.2017.
15. The law on the subject is well settled. In Bakshi Security and Personnel Services Pvt. Ltd. v. Devkishan Computed Pvt. Ltd. and Ors., (2016) 8 SCC 446, this Court held:
"14. The law is settled that an essential condition of a tender has to be strictly complied with. In Poddar Steel Corpn. v. Ganesh Engg. Works [Poddar Steel Corpn. v. Ganesh Engg. Works, (1991) 3 SCC 273] this Court held as under: (SCC p. 276, para 6) "6. ... The requirements in a tender notice can be classified into two categories--those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases."
15. Similarly in B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. [B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd., (2006) 11 SCC 548] this Court held as under: (SCC pp. 571-72, para 66) "(i) if there are essential conditions, the same must be adhered to;
W.P.(C) No.21779 of 2019 Page 17 of 21(ii) if there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully;
(iii) if, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing;
(iv) the parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance with another part of tender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction;
(v) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with;..."
16. We also agree with the contention of Shri Raval that the writ jurisdiction cannot be utilised to make a fresh bargain between parties."
16. However, learned counsel appearing on behalf of the appellant strongly relied upon Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818, and paragraphs 14 and 15 in particular, which state:
"14. We must reiterate the words of caution that this Court has stated right from the time when Ramana Dayaram Shetty v. International Airport Authority of India [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489] was decided W.P.(C) No.21779 of 2019 Page 18 of 21 almost 40 years ago, namely, that the words used in the tender documents cannot be ignored or treated as redundant or superfluous - they must be given meaning and their necessary significance. In this context, the use of the word "metro" in Clause 4.2(a) of Section III of the bid documents and its connotation in ordinary parlance cannot be overlooked.
15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given."
17. It is clear even on a reading of this judgment that the words used in the tender document cannot be ignored or treated as redundant or superfluous - they must be given meaning and their necessary significance. Given the fact that in the present case, an essential tender condition which had to be strictly complied with was not so complied with, the appellant would have no power to condone lack of such strict compliance. Any such condonation, as has been done in the present case, would amount to perversity in the understanding or appreciation of the terms of the tender conditions, which must be interfered with by a constitutional court."
16. Reverting to the case on hand, the Petitioner in support of his contention that the requirement under Clause-4.2(g) is a mandatory condition, refers to Clause 3.5.14 of OPWD Code which reads thus:
"Clause 3.5.14 of O.P.W.D. Code-"Normally in selecting the tenders other conditions being equal, the lowest valid W.P.(C) No.21779 of 2019 Page 19 of 21 tender should be accepted. The financial status of the tenders, their capacity, their classification, the security offered by them, their previous records of execution of works in the state and their dealings with the Department should be taken into consideration while accepting a tender. While this procedure should as a rule be observed in the case of public works the acceptance of the lowest tender on a price basis alone in the case of tenders for electrical and mechanical stores and equipment may not always be safe. If the best value is to be obtained then the lowest valid tender should be accepted provided that all other things are equal."
17. On perusal of the aforesaid provision of OPWD Code, we are unable to agree with the contention of the Petitioner that the requirement thereunder is mandatory. It is to be remembered here that the evidence of access to line of credit is not same as the EMD. The ground for rejection of the technical bid of Opposite Party No.7 as mentioned by the technical evaluation committee was non- pledging of EMD in favour of concerned Executive Engineer i.e., Rural Works Division-II. It is no where mentioned that the technical bid of Opposite Party No.7 was rejected for deficiency in the evidence of access to line of credit. The objection has been raised by the Petitioner not by the tender inviting authority.
18. As held by the Supreme Court in the case of Galaxy Transport Agencies (supra) and other cases relied therein, the authority who has authored the tender document is the best person to appreciate the requirement of the tender conditions. When the tender inviting authority says that the requirement under Section 4.2(g) is not mandatory, no scope lies to the Petitioner nor to this Court to say the same as mandatory requirement in absence of any provision either expressly W.P.(C) No.21779 of 2019 Page 20 of 21 mentioned in the tender document or in the related statutory code. Therefore, considering the scope of writ jurisdiction within the given parameters of judicial review in contractual matters, we are not inclined to interfere with the impugned decision of the tender inviting authority. Moreover, admittedly, the execution of work has progressed substantially in the meanwhile.
19. For the reasons discussed above, the writ petition is dismissed. No order as to costs.
20. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021.
(B.P.Routray) Judge (Dr. S. Muralidhar) Chief Justice 31st h May,2021 //C.R.Biswal, Secretary// W.P.(C) No.21779 of 2019 Page 21 of 21