Delhi High Court - Orders
M/S Hisar Construction Company vs Govt. Of Nct Of Delhi & Ors on 25 May, 2022
Author: Vipin Sanghi
Bench: Sachin Datta, Vipin Sanghi
$-5
* IN THEHIGH COURT OF DELHIATNEW DELHI
+ W.P. (C) 5646/2022
M/S HISAR CONSTRUCTION COMPANY .....Petitioner
Through: Mr. Amitabh Chaturvedi and Mr.
Ankit Monga, Advocates.
versus
GOVT. OF NCT OF DELHI & ORS. ......Respondent
Through: Ms. Mehak Nakra, Additional Standing Counsel (Civil) for respondent No.1.&3/GNCTD.
Mr. B.B. Gupta, Sr. Advocate with Mr. Belendu Shekhar, Mr. Rajkumar Maurya, Mr. Krishna Chaitanya and Mr. Achal Gupta, Advocates for respondent no.4.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE SACHIN DATTA % ORDER 25.05.2022
1. The present petition has been filed by the petitioner, under Article 226 of the Constitution of India, being aggrieved by the rejection of its bid pursuant to Tender dated 09.08.2021 having tender ID 2021 DPCC 206783 1 and 2 having reference number DPCC/WMC-I/ACBWTF/2021/Tender. It is the contention of the petitioner that it has been declared disqualified, although no reasons have been disclosed by the respondents for the same.
2. The background and the context in which the present controversy arises is that on 20.01.2021, a request for Expression of Interest (EOIs) was issued by the Government of National Capital Territory of Delhi (GNCTD) for setting up two Common Bio-medical Waste Treatment and Disposal Signature Not Verified Digitally Signed W.P. (C) 5646/2022 Page 1 of 17 By:RADHA BISHT Signing Date:02.06.2022 14:58:07 Facilities (CBWTFs) on BDO (Built, Own and Operate) basis for the collection, transportation, reception, storage, treatment and disposal of bio-
medical wastes one each for the two regions of the GNCTD; however, the said EOI dated 20.01.2021 came to be cancelled on 17.03.2021. Thereafter, the decision was conveyed to invite fresh EOIs, pursuant to which Respondent No. 4 - Delhi Pollution Control Board (DPCC) had initiated the process of inviting tender for tender ID 2021_DPCC_206783_1 and _2 having reference number DPCC/WMC-I/ACBWTF/2021/Tender on 09.08.2021. The petitioner submitted its bid pursuant to this tender and it is the contention of the petitioner that its bid has been wrongly rejected by the respondent. It is stated that as per information uploaded on the website, the status of the bid of the petitioner is "Rejected-Technical" for the reason "Bid Not Responsive". It is further submitted by the petitioner that apart from this cryptic disclosure on the website, no reasons have been communicated to the petitioner for the rejection of its bid, despite the petitioner sending e-mails dated 15.12.2021 and 23.12.2021 seeking clarification and reasons for rejection of its bid.
3. In the counter-affidavit filed on behalf of DPCC, it has been pointed out that the tender floated on 09.08.2021 for setting up and operation of two CBWTFs was in the backdrop of the facts, that similar tender issued in the past on 21.01.2021 and 22.03.2021 had been cancelled, and could not be carried forward for want of adequate number of responsive bids. It has been stated that in the impugned bidding process, in order to cut short the time in tendering and for expeditious processing of the tender, a single stage tender document for both the regions had been published / uploaded on e- procurement portal of government and DPCC website on 09.08.2021. It is Signature Not Verified Digitally Signed W.P. (C) 5646/2022 Page 2 of 17 By:RADHA BISHT Signing Date:02.06.2022 14:58:07 pointed out that a complaint was received by the DPCC against the petitioner regarding proposed location of the CBWTFs i.e. B-2/92 and B- 2/93, Village Mohan Co-operative Industrial Estate, which site had been previously rejected by the MOEF&CC to set up CBWTFs. The complaint dated 05.10.2021 qua the petitioner has been-filed by one Mr. Parmendra Kumar Sah, has been annexed along with the counter affidavit of DPCC, and it is stated therein as under:
"In this regard, we would like to bring following facts of this company to your kind notice regarding their non-compliance to requirement of the tender.
1. As per tender submission conditions, bidder has to provide lease deed agreement of minimum 10 years at the time of submitting tender documents date i.e. 24th September'21 and in Rudraksh Enviro Care Pvt. Ltd. and Hisar Construction Company's case they executed the lease deed agreement on dated 02nd February'21 which can be extended twice for the period of 3 years as one year almost going to expire, they only left 8 years of lease deed agreement.
2. Earlier the Biotic Waste Solution Pvt. Ltd has made the lease deed on the same land to setup the CBWTF at plot no. B2/92 & B2/93, village Mohan Cooperative Industrial Estate for Environmental Clearance No. (IA/DL/NCP/149344/2020; F.NO. 10-35/2020-IA-III). On the same land Rudraksh Enviro Care Pvt. Ltd. and Hisar Construction Company has executed the lease deed agreement to CBWTF which was rejected by MOEF to setup any CBWTF because of the following reasons:-
a. The proposed land to setup CBWTF is only 220m away from the residential area i.e Pahladpur.
b. The distance between of Asola Wildlife Sanctuary is also nearby the project site.
c. A place of worship, namely the Red Temple located at a distance of 190 m from the project site.
d. There exist schools, namely (i) Kalawati Public School, (ii) Govt. Boys Senior Secondary School, (iii) D.A.V Senior Secondary School located at a distance of 540m, 1.15 km, and 1.19 km respectively.
e. There exist MCD Polyclinic and Maternity & Child Centre at a distance of 780m and 890m respectively from the project site.
Considering above mentioned reasons for which the Ministry of Environment Forestry and Climate Change rejected the Environment Clearance to setup the CBWTF of Biotic Waste Solution Pvt. Ltd. We are Enclosing the copy of Minutes Signature Not Verified Digitally Signed W.P. (C) 5646/2022 Page 3 of 17 By:RADHA BISHT Signing Date:02.06.2022 14:58:07 of the 53rd Meeting of Expert Appraisal Committee (Infra-2) held on 23-24 July'2020 for your ready reference.
This is clear matter of misrepresentation of the fact to misguide DPCC selection committee for above said Tender work/project.
We request to Delhi Pollution control committee will take cognizance of the same and take necessary steps in this regard."
4. The task of tender evaluation in the present case was entrusted to the Project Evaluation Committee under the aegis of the National Productivity Council (NPC). The said Project Evaluation Committee held its meeting on 11.10.2021 and 11.11.2021, wherein the view was taken by the committee that it was not within its mandate to investigate or deal with the complaints received, and that the committee was bound to conduct its evaluation purely on the basis of documents and declaration provided in the bid documents. Thereafter, certain correspondence ensued between the Project Evaluation Committee and the DPCC. It is pointed out that the DPCC, being the tender floating authority, was obliged to take into account the complaint against the petitioner.
5. It has been brought out in the rejoinder filed by the petitioner that a meeting of the Project Evaluation Committee took place on 11.10.2021, wherein the bid of the petitioner was described as "bid responsive".
6. Further, vide e-mail dated 23.11.2021, the NPC was specifically requested to advise on the further course of action on the following aspects:
"I. Whether M/s Hisar Construction qualifies for opening of its financial quotation in view of:
i. The Environmental Clearance for the CBWTF proposed by M/s Biotic was not recommended at the same plot i.e., B2/ 92 & B2/ 93, Mohan Cooperative Industrial Estate with the liberty to propose the alternate site as per minutes of meeting of EAC (MOEF&CC, GO!) dated 23-24 July 2020. ii. The capacities of incinerators proposed are less than the tender Signature Not Verified Digitally Signed W.P. (C) 5646/2022 Page 4 of 17 By:RADHA BISHT Signing Date:02.06.2022 14:58:07 specifications."
7. Ultimately, DPCC itself deliberated the complaint initiated against the prospective bidders with regard to location of proposed site as well as required incinerator capacity, and came to the conclusion that the petitioner herein did not have the requisite incinerator capacity and also the proposed location was not found suitable to install CBTWFs by MoEF&CC.
8. Accordingly, it was decided to reject the bid of the petitioner. In the counter affidavit filed on behalf of DPCC. It has been stated as under:
"...Regarding opening of financial bids of bidders, for setting up of additional CBTs in NCT of Delhi, following is informed:
Regarding bids of M/s Hisar Construction, it is submitted that it has proposed less capacity of incinerators as specified in tender document Mis HISAR CONSTRUCTION proposed the Incinerator Capacity of 350 Kg/hr and 200 Kg/hr for region 1 and 500 kg/hr and 300 Kg/hr for region 2 and the Project Evaluation Committee noted that the proposed capacities of Incinerators are less than the tender specification i.e., proposed capacity 350 Kg/hr (1w+ls) for region 1 and 800 Kg/hr (1w+ls) for region 2 as specified in the Tender Document (C/ 2999) therefore M/S Hisar Construction is not meeting the tender specifications and may not be considered. Apart from this, the bidder has submitted lease deed of Plot No. B-II/92 & B- II/93, Mohan Co-operative Industrial Estate along with the Tender Document and earlier, Environmental Clearance for the proposed CBWTF by M/s Biotic was not recommended at the plot with the liberty to propose the alternate site as per the minutes of meeting of EAC (MOEF&CC, GOI) dated 23-24 July, 2020.
... In view of the above facts, the Competent Authority has decided as follows;
1. Financial bids of M/s Synergy Waste Management Pvt. Ltd. and Mis Hisar Construction are not required to be open for the reasons mentioned above.
2. NPC may be asked to open the Financial Bids of remaining two bidders i.e., MIs SMS Ltd and M/s Medical Pollution Control Committee and conclude the process expeditiously.
You are requested to decide the date for opening of Financial Bids urgently as per the above decision of the competent Authority and also advice DPCC for further course of action and send the documents required to be uploaded on e- procurement portal and DPCC website....."
9. The aforesaid decision was duly communicated to the NPC by e-mail Signature Not Verified Digitally Signed W.P. (C) 5646/2022 Page 5 of 17 By:RADHA BISHT Signing Date:02.06.2022 14:58:07 dated 02.12.2021.
10. It is in the above background facts, that the petitioner challenges the rejection of its bid.
11. Contention of the petitioner in its rejoinder with regard to objection regarding the proposed capacities of Incinerators being less than the tender specification is as follows:
"(i) As per the tender specifications, published by DPCC, the capacity of incinerator for Region 1:350 Kg/hr (1w + 1s). The petitioner has proposed treatment capacity in the tender document is 350 kg/hr & 200 kg/hr (1w+1s) which means two sets of incinerators and each set contains two incinerator of 350 kg/hr & 200 kg/hr). On set of incinerator (350 + 200 KG) as working incinerator and two another set of same capacity (350+200 Kg) as stand by. "
12. In support of the above contention, the petitioner has also filed and relied upon the relevant table submitted by him along with its technical bid which reads as under:
"Format for Technical Proposal 1.1 Infrastructure details provided by the bidder S. Name of Capacity Number Year of Make/Brand Expected Backup equipme downtime in facility No. manufacture nt case of equipment failure
1. Incinerat 350kg/Hr & 2 (1W + 2021 Alfa Therm Standby can 1. Standby 200 Kg/Hr 1S) Ltd., India be used 2.
or Agreement with Nearby CBWTF
13. The submission is that the proposed capacity of incinerator mentioned by the petitioner in the tender is as per the prescribed capacity / notified in Signature Not Verified Digitally Signed W.P. (C) 5646/2022 Page 6 of 17 By:RADHA BISHT Signing Date:02.06.2022 14:58:07 the tender. It is contended that the petitioner herein proposed 550 kg/hr (350+200) capacity as working, and a similar 550 kg/hr capacity as standby against the required / notified capacity of 350 kg/hr for region 1. It is contended that the petitioner proposed enhanced capacity of the incinerator due to past experience as an operator in the CBTWFs, and more particularly due to bio-medical waste generated due to Covid-19 pandemic.
14. With regard to the objections / complaint regarding the fitness of the site of the petitioner from the point of the environmental clearance, it is contended that the petitioner could not be visited with the consequences of any infirmity in the proposal by any previous project proponent for obtaining environmental clearance. It was submitted that due to the fact that on an earlier occasion, environmental clearance was not recommended at the plot, would not by itself be a justifiable ground for disqualifying the petitioner. It is contended that the site proposed by the petitioner is a notified industrial area and meets all the criteria on the subject. It is further contended that the objections regarding rejection of the proposed site were also premature on the ground that the tender document itself specified that in case the proposed site is not found suitable by SCEAC/SCIAA, the successful bidder shall be granted additional 120 days to file another suitable location.
15. We have heard learned counsel for parties at some length and have considered their submissions.
16. As regards the objections with regard to suitability of the land of the petitioner, there is force in the contention of the petitioner that the petitioner had no concern with any previous attempt to obtain environmental clearance by some previous bidder during a different tendering process. Clearly, the Signature Not Verified Digitally Signed W.P. (C) 5646/2022 Page 7 of 17 By:RADHA BISHT Signing Date:02.06.2022 14:58:07 petitioner cannot be saddled with the consequences of failure to obtain environmental clearance by some other bidder in the past.
17. In this regard, the petitioner has also submitted during the course of hearing, the relevant responses to certain pre-bid queries raised pursuant to the instant tender. In particular, the petitioner relies upon the following specific aspects which were part of the pre-bid queries. The following are the specific comments in response to certain clarifications:-
4 16 Section 1.2 The CBWTFs We request that it should Time specified for setting II would be setup be 18 months after up the CBWTF is 12 within a period getting EC & CTE, as months from date of issue of 12 months the manufacturer are of Letter of Award.
from the date of demanding 10 to 12 However, in case during issue of letter of months' time for appraisal by EAC/SEAC award. delivering the alternate land is equipment's. Kindly warranted, one accept and confirm. opportunity will be Further DPCC and DHS accorded to the bidder to shall make visible identify & possess support to operator to another land as per take EC and CTE. tender specifications and to obtain EC. In such circumstances, a grace period of upto 120 days shall be provided subject to decision of the competent Authority.
18. Clearly, from the above it is evident that it was within the contemplation of the concerned respondent that alternate land may be warranted on account of appraisal by SCEAC/SCIAA, and in such an event, it was clarified, that the bidder would be given an opportunity to identify and possess another land as per tender specification and to obtain EC.
19. Learned senior counsel on behalf of Respondent has sought to rely upon the minutes of the 53rd meeting of Expert Appraisal Committee held on 23.07.2020 and 24.07.2020, wherein with regard to lands / sites in question it was observed that due to close proximity to a densely populated area; the Signature Not Verified Digitally Signed W.P. (C) 5646/2022 Page 8 of 17 By:RADHA BISHT Signing Date:02.06.2022 14:58:07 mean value of PM 2.5 and PM 10 exceeding the limits of National ambient air quality standards, and higher noise levels, do not warrant for recommending the project at the proposed site.
20. Neither the reliance on the said minutes, nor the reasoning contained therein commends itself to us. Any application for environmental clearance by a prospective bidder pursuant to the impugned tendering process has to be examined independently by the concerned authorities without being in any way influenced or coloured by consideration of any previous proposal by a different project proponent. Moreover, as pointed out by learned counsel for the petitioner, even during the pre-bid stage, in response to a specific query it was clearly brought out that bidders are also permitted to arrange for alternative land in the event the same is warranted on account of any appraisal by the Environmental Impact Assessment authorities. We also note that the observation regarding mean value of PM 2.5 and PM 10 exceeding the limits of National ambient air quality standards and higher noise levels, is quite generic in nature, and would apply to the entire NCR region.We thus find merit in the contention of the petitioner as far as this aspect of the matter is concerned.
21. We now proceed to examine the other ground of rejection of the petitioner's bid, namely, that its incineration capacity was inadequate. In this regard, the relevant requirement as set out under the tender document for Region-1, is as follows:
"The indicative specifications for the plant are as follows:
a) Incinerator / Plasma pyrolysis plant Type Controlled Air Gas Fired Rotary Kiln (for Incinerator) Incinerator Capacity Region 1:350 kg/hr (1w+1s) Minimum capacity of incinerator to be not less than 200 Signature Not Verified Digitally Signed W.P. (C) 5646/2022 Page 9 of 17 By:RADHA BISHT Signing Date:02.06.2022 14:58:07 kg/hr "
22. It is, thus, evident that at any given point of time, it was mandatory to maintain an incineration capacity of 350 kg/hr while, at the same time, ensuring that minimum capacity of an incinerator would not be less than 200 kg/hr. As opposed to this, in the technical proposal submitted by the petitioner, while giving details of equipments, the following details were given as regards the incinerator to be deployed by the petitioner.
"Format for Technical Proposal 1.1 Infrastructure details provided by the bidder S. Name of Capacity Number Year of Make/Brand Expected Backup equipme downtime in facility No. manufacture nt case of equipment failure
1. Incinerat 350kg/Hr & 2 (1W + 2021 Alfa Therm Standby can 1. Standby 200 Kg/Hr 1S) Ltd., India be used 2.
or Agreement with Nearby CBWTF
23. It is vehemently contended on behalf of the petitioner that it had proposed two sets of incinerators, with each set containing two incinerators of 350kg/hr and 200 kg/hr. However, a perusal of the above extracted table submitted by the petitioner does not indicate as much. On the contrary, the petitioner indicated that only "2" (one working + one standby) machines would be provided.
24. There is force in the contention of Mr. B.B. Gupta, learned senior counsel for respondent, that if the petitioner's contention regarding two pairs of machines being made available was correct, then the number of machines ought to have been indicated as four (4), and not two (2).
25. It is rightly pointed out that the context of other equipments, the Signature Not Verified Digitally Signed W.P. (C) 5646/2022 Page 10 of 17 By:RADHA BISHT Signing Date:02.06.2022 14:58:07 petitioner has clearly indicated the number proposed to be deployed in more precise and categorical terms, instead of leaving scope for inference/assumption. Thus, the quantity of various equipments (other than incinerators) were indicated by the petitioner in its technical proposal as under:-
S. Name of Equipment Capacity Number Year of Make/Brand Expected Backup No. Manufacture Downtime in facility case of Equipment Failure 2 Autoclave 350 Kg/Batch 1 2021 Anjali Sales Maximum two Agreement Corporation, hours for with Nearby India replacement of CBWTF faulty motors/items 3 Shredder 350 Kg/Hr 1 2021 Alfa Therm Maximum two Agreement Ltd., India hours for with Nearby replacement of CBWTF faulty motors/items 4 Sharp 1 Ton/Blocks 1 2021 N/A N/A N/A Pit/Encapsulation as per quantity of waste 5 Effluent Treatment 10 KLD 1 2021 Trity Enviro, Maximum two Sufficient Plant India hours for in-house replacement of stock of faulty important motors/items motors and spare parts 6 Generator set 250 KVA 1 2021 Kirloskar Maximum two Sufficient hours for in-house replacement of stock of faulty important motors/items motors and spare parts 7 BMW Collection 20 Four 25 2021 Tata Ace Spare Vehicles Spare Vehicles Wheelers 5 Tata-407 to ply in case Vehicles to Two Wheelers Eicher-Canter of any ply in case (or as per breakdown of any requirement) breakdown 8 GPS (one per N/A 25 2021 Leo Tracking 1 Hr Spare GPS vehicle) Solutions quipment in Stock 9 POS (one per N/A 25 2021 Any Android vehicle) Mobile 10 Weighing Machines .050 Grams to 25 2021 Mars Digital Spare Spare (one per vehicle) 50 Kg (Digital Scales & Machines in Machines in Handy, Systems stock stock Bluetooth Platform based) 11 CCTV Facility N/A 8 2021 Hik - vision 8-10 Hrs for AMC with Technical the vendor Issue, and 2-3 Hrs for Signature Not Verified Digitally Signed W.P. (C) 5646/2022 Page 11 of 17 By:RADHA BISHT Signing Date:02.06.2022 14:58:07 mechanical issue 12 OCEMS N/A 2 2021 M/s Drexel, 8-10 Hrs for AMC with India Technical the vendor Issue, and 2-3 Hrs for mechanical issue (for scope on part of Vender & CBWTF)
26. The above tabulation, and a reading of the petitioner's technical proposal as a whole, reinforces the conclusion that when the petitioner itself indicated the number of incinerators to be two (2), the same cannot be read/interpreted to mean "two pairs".
27. Having considered the rival contentions of the parties, we find that the rejection of the petitioner bid on this ground cannot be said to be arbitrary or perverse; it is evident that there has been due application of mind regarding the technical proposal submitted by the petitioner / bidder, and a considered view has been taken by the concerned experts. This Court would not sit in appeal over such an assessment.
28. In the facts of this case, the technical appraisal having been carried out by the relevant experts who have reached a particular conclusion, the same cannot be assailed under Article 226 of the Constitution. It is well settled that the scope of interference with regard to such matters in proceedings under Article 226 of the Constitution is extremely limited. Recently in the case of M/s Agmatel India Pvt. Ltd. Vs. M/s Resoursys Telecom & Ors. 2022 SCC Online SC 113, the Supreme Court has held as under:
"Interpretation of Tender Document: Relevant Principles
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 Signature Not Verified Digitally Signed W.P. (C) 5646/2022 Page 12 of 17 By:RADHA BISHT Signing Date:02.06.2022 14:58:07 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 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. v. 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 Signature Not Verified Digitally Signed W.P. (C) 5646/2022 Page 13 of 17 By:RADHA BISHT Signing Date:02.06.2022 14:58:07 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." (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)
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 Signature Not Verified Digitally Signed W.P. (C) 5646/2022 Page 14 of 17 By:RADHA BISHT Signing Date:02.06.2022 14:58:07 whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;
or Whether the process adopted or decision made is so arbitrary and irrational that the court can say:"the decision is such that 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 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 Signature Not Verified Digitally Signed W.P. (C) 5646/2022 Page 15 of 17 By:RADHA BISHT Signing Date:02.06.2022 14:58:07 ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decision-making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints." (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 fourmember 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.
(emphasis supplied)"
29. Applying the aforesaid principles, it is evident that the assessment / evaluation carried out by the concerned authorities with regard to the incineration capacity of the petitioner is not liable to be interfered with by Signature Not Verified Digitally Signed W.P. (C) 5646/2022 Page 16 of 17 By:RADHA BISHT Signing Date:02.06.2022 14:58:07 this Court. In the circumstances, we find no infirmity with the rejection of the petitioner's bid on the ground that its incineration capacity was not found to be satisfactory and in line with the requirements as set out in the tender documents.
30. We, thus, find no merit in the writ petition and the same is, accordingly, dismissed. However, no order as to costs.
VIPIN SANGHI, ACJ SACHIN DATTA, J MAY 25, 2022/cl Signature Not Verified Digitally Signed W.P. (C) 5646/2022 Page 17 of 17 By:RADHA BISHT Signing Date:02.06.2022 14:58:07