Calcutta High Court (Appellete Side)
Berhampore Construction Syndicate ... vs The State Of West Bengal & Ors on 30 June, 2017
Author: Arijit Banerjee
Bench: Arijit Banerjee
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
WP 878 (W) of 2015
Berhampore Construction Syndicate Private Limited & Anr.
-Vs.-
The State of West Bengal & Ors.
Coram : The Hon'ble Justice Arijit Banerjee
For the petitioner : Mr. Saptangshu Bose, Sr. Adv.
Mr. Subhabrata Das, Adv.
For the respondent No. 6 : Mr. Amitava Chosh, Adv.
Mr. Sourav Chatterjee, Adv.
For the respondent no. 7 : Mr. Bikram Banerjee, Adv.
Mr. Sudipta Dasgupta, Adv.
Mr. Riddhi Choudhury, Adv.
For the State : Mr. Abhratosh Majumdar (Ld. Govt. Pleader)
Mr. Md. Siddiqui, Adv.
Heard On : 17.06.2015, 15.07.2015, 31.07.2015, 07.09.2015,
15.09.2015, 15.10.2015, 22.12.2015, 11.02.2016,
28.04.2016, 30.06.2016, 23.08.2016, 01.12.2016,
10.01.2017, 17.01.2017
CAV On : 17.01.2017
Judgment On : 30.06.2017
Arijit Banerjee, J.:
(1) In this writ application the petitioners have challenged the Notice Inviting Electronics Tender No. 20 of 2014-15 dated 31 December, 2014 issued by the Superintending Engineer, Central Circle, PWD, Murshidabad for widening and strengthening of Motijhil to Panditbagh More Road, i.e. a stretch of 8.75 kms in the district of Murshidabad. The contention of the petitioners is that the petitioner company was the successful bidder pursuant to Notice Inviting Electronic Tender No. 8 of 2014-15 issued for the same work and as such issuance of the subsequent tender No. 20 was illegal. The petitioners submitted that the work order should be issued in favour of the petitioner company.
Facts of the case:-
(2) A tender was floated and Notice Inviting Electronic Tender No. 8 of 2014-15 dated 4 September, 2014 was issued by the Executive Engineer-II, Berhampore Division No. I, PWD Directorate for widening and strengthening of 8.75 Kms stretch of the road from Motijhil to Panditbagh More Road in the District of Murshidabad. The estimated value of the tender work was Rs. 6,18,26,809/- and the estimated completion period was 180 days. Sub-clauses (i) and (ix) under Clause 3 (Eligibility criteria for participation in tender) read as follows:-
"3(1) The prospective bidders shall have satisfactorily completed as a prime agency during the last 5(five) years prior to the date of issue of this Notice at least one work of similar nature under the authority of State/Central Govt., State/Central Govt. undertaking/Statutory Bodies constituted under the statute of the Central/State Government and having a magnitude of 40 (forty) percent of the Estimated amount put to tender. (Non Statutory Documents) N.B. Estimated amount, Date of completion of project & detail communicational address of Client must be indicated in the Credential Certificate. Similar nature of work in Road Works.
(ix) The prospective bidders should own (Details as mentioned in Sl. No. 2) the required plant and machineries of prescribed specifications as shown in format. Conclusive proof of ownership (Tax invoice, Way Bill, Delivery Challan, incorporation in the Balance Sheet as fixed asset) for each plant and machineries in working condition shall have to be submitted. Present location of installation of main Plant and machinery as mentioned in specified format has also to be disclosed.
Present status/location of all the Plant and Machineries are needed to be provided. If the same is already engaged in the other works, then name of client along with his contact number should be furnished in the declaration by the intended tenderer countersigned by the client with tentative date of release of such Plant and Machineries where the same are presently engaged. If necessary, authority/evaluation committee may inspect Plant and Machineries physically or call for the original documents as proof of Ownership in favour of owner Plant & Machineries should be owned by the applicant. (Non Statutory Documents)."
(3) There were no bidders in response to the said NIET. The authorities reviewed the tender process and while doing so took into consideration the Government Notification No. 229-CRC/2M-02/2013 dated 11 July, 2013 whereby sub-Rule (3) of Rule 216 of the PWD Code was amended. Rule 216(3) as amended reads as follows:-
"(3) If upon calling for competitive tenders, the number of tenders received is less than three, the tenders shall be invited afresh. Such Re-Tender notice shall be published in widely circulated dailies for conventional 'Notice Inviting Tender' (NIT) and also through e-Tender portal in case of e-Tender. Prior to invitation of Re-
Tender or fresh Tender the eligibility criteria and other terms and conditions as contained in the first 'Notice Inviting Tender' shall have to be reviewed by the Tender Inviting Authority to ascertain whether (i) it was too much restrictive, say, specifications and qualifications were fixed at higher standard than required, (ii) advertisement in the widely circulated Newspapers were properly published and (iii) other related procedural matters were observed in its entirely.
However, in every such case of Re-Tender, all categories of Contractors shall be allowed to participate irrespective of the fact whether the initial tender was confined to any class of Enlisted Contractors or to registered Co-Operative Society formed by Unemployed Engineers; provided that such contractors shall have to fulfill the requirements laid down in the tender notice. Even if, after taking appropriate steps, the response to such Re-Tender is less than three, that tender may be accepted without reference to the Finance Department; Provided that the rates do not exceed the estimated or the schedule rates beyond 3% in case of works estimate and responsible prevailing market price for goods and service in other cases. Otherwise, such cases should be referred to the Finance Department for decision." (4) After reviewing, the tender committee issued a second call of the same tender, dated 16 October, 2014. Sub-Clauses (i) and (ix) under Clause 3 of the second tender notice read as follows:-
"(i) The prospective bidders shall have satisfactorily completed as a prime agency during the last 5(five) years prior to the date of issue of this Notice at least one work of similar nature under the authority of State/Central Govt., State/Central Govt.
undertaking/Statutory Bodies constituted under the statute of the Central/State Government and having a magnitude of 30 (thirty) percent of the estimated amount put to tender. (Non- Statutory Documents) N.B. Estimated amount, Date of completion of project & detail communicational address of client must be indicated in the Credential Certificate. Similar nature of work in Road Works."
(ix) The prospective bidders should own (Details as mentioned in Sl. No. 2) the required plant and machineries of prescribed specifications as shown in format. Conclusive proof of ownership (Tax invoice, Way Bill, Delivery Challan, incorporation in the Balance Sheet as fixed asset) for each plant and machineries in working condition shall have to be submitted. Present location of installation of main Plant and machineries as mentioned in specified format has also to be disclosed. Present status/location of all the Plant and Machineries are needed to be provided. If the same is already engaged in the other works, then name of client along with his contact number should be furnished in the declaration by the intended tenderer countersigned by the client with tentative date of release of such Plant and Machineries where the same are present engaged. If necessary authority/evaluation committee may inspect Plant and Machineries physically or call for the original documents as proof of ownership in favour of the owner Plant & Machineries should be owned by the applicant. (Non-Statutory Documents)."
(5) In response to the second call of the said tender process two parties put in their offers, namely, M/s. Tapas Kumar Chakraborty, a registered partnership firm being the respondent no. 6 and the petitioner company. Upon opening of the Technical Bid on 11 November, 2014, the bid of the respondent no. 6 was rejected due to inadequate proof of ownership of the requisite plant and machinery. The petitioner company was held to be qualified by the office of the Executive Engineer, Berhampore Division I, PWD, by issuance of Memo dated 20 November, 2014. (6) The Executive Engineer, PWD issued a notice dated 25 November, 2014 to the petitioner company to offer a Fair Rate by lowering the rate quoted earlier. By a letter dated 28 November, 2014 the petitioner company lowered its rate and the revised rate was accepted by the Superintending Engineer and re-commended to the Chief Engineer, Sough Zone, PW Directorate on 11 December, 2014.
(7) Subsequently, by issuance of communication dated 29 December, 2014, the tender was cancelled due to 'administrative reasons'. Within two days a fresh NIET No. 20 of 2014-15 dated 31 December, 2014 was issued by the office of the Superintending Engineer, Central Circle, PW Directorate for the same work. Sub-Clauses (i) and (ix) under Clause 3 of the third NIET read as follows:-
"(i) The prospective bidders shall have satisfactorily completed as a prime agency during the last 5(five) years prior to the date of issue of this Notice at least one work of similar nature under the authority of State/Central Govt., State/Central Govt., undertaking/Statutory Bodies constituted under the statute of the Central/State Government and having a magnitude of 40 (forty) percent of the estimated amount put to tender. (Non Statutory Documents) N.B. Estimated amount, Date of completion of project & detail communicational address of client must be indicated in the Credential Certificate. Similar nature of work in Road Works.
(ix) The prospective bidders should own or arrange through lease hold registered agreement (Details as mentioned in Sl. No. 2) the required plant and machineries of prescribed specification as shown in format. Conclusive of proof of ownership (Tax Invoice, Way Bill, Delivery Challan, incorporation in the Balance Sheet as fixed asset) for each plant and machineries in working condition shall have to be submitted. Present location of installation of main plant and machineries as mentioned in specified format has also to be disclosed.
Present status/location of all the Plant and Machineries are needed to be provided. If the same is already engaged in the other works, then name of client along with his contact number should be furnished in the declaration by the intended tenderer countersigned by the client with tentative date of release of such Plant and Machineries where the same are present engaged. If necessary, authority/evaluation committee may inspect Plant and Machineries physically or call for the original documents as proof of Ownership in favour of owner Plant & Machineries should be owned/arranged by the Applicant. (Non Statutory Documents)"
(8) Being aggrieved by the cancellation of NIET No. 8 (second call) of 2014-15 and issuance of NIET No. 20 of 2014-15 for the same work, the petitioners have filed the present writ application. When the application was first moved, an interim order dated 30 January, 2015 was passed by Soumitra Pal, J. (as His Lordship then was) restraining the respondents from opening the financial bids till 6 March, 2015 or until further order whichever was earlier. From time to time such interim order was extended and stands extended till the disposal of the writ application.
Contention of the petitioners:-
(9) Learned Counsel for the petitioners submitted that cancellation of the NIET No. 8 (second call) of 2014-15 and issuance of NIET No. 20 of 2014-15 by the concerned respondents were arbitrary, mala fide and without jurisdiction as there was no cogent reason for doing the same.
As the first tender conditions were harsh and there were no bidders, the respondents by exercising the power of review for re-tender pursuant to notification of Government of West Bengal dated 11 July, 2013, issued a second tender notice. The petitioner was selected as the successful bidder. Cancellation of that process and issuance of the third tender notice has been made only to select the respondent authority's preferential candidate by making the eligibility criteria 'tailor-made'. The third tender notice was issued with a condition which had been deleted in the second tender notice by exercising the power of review and Clause 3(ix) was put in to suit one of the added respondents as one of them was disqualified due to lack of ownership of adequate plant and machinery during the process of selection undertaken pursuant to the second tender notice.
(10) In support of his submission that the High Court can judicially review the terms of a NIT if the same are 'tailor-made' to suit the convenience of a particular party, learned Counsel relied on a decision of the Hon'ble Apex Court in the case of Meerut Development Authority- Vs.-Association of Management Studies, (2009) 6 SCC 171, and in particular 26 of the said judgment which reads as follows:-
26. A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated it must be unconditional; must be in the proper form, the person by whom tender is made must be able to and willing to perform his obligations. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. However, a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor made to suit the convenience of any particular person with a view to eliminate all others from participating in the biding process."
Clauses 3(i) and 3(ix) of the eligibility criteria were 'tailor-made' to suit the added respondent no. 6, submitted learned Counsel. (11) Learned Counsel further submitted that the order cancelling the second tender notice contains no reason at all except a bald assertion that the same was being cancelled due to administrative reasons. This is also illegal. In this connection learned Counsel relied on the well-known decision of the Hon'ble Apex Court in the case of Mohinder Singh Gill- vs.-The Chief Election Commissioner, New Delhi, AIR 1978 SC 851, in support of his submission that when a statutory authority makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.
(12) Learned Counsel submitted that the cancellation order is a non- speaking order and the issuance of the third tender notice is an illegal attempt, solely to eliminate the petitioner company. In this connection learned Counsel relied on a decision of the Hon'ble Apex Court in the case of Rajasthan Cooperative Diary Federation Ltd.-vs.-Maha Laxmi Mingrate Marketing Service Pvt. Ltd., (1996) 10 SCC 405, and in particular paragraph 6 of the judgment which reads as follows:-
"6. Respondent No.1 has tried to rely upon certain extraneous circumstances to allege mala fides on the part of the appellant in cancelling the Letter of Intent. When the reasons for cancellation are clearly set out in the cancellation letter and are germane to the decision not to enter into a contract with respondent No.1, we fail to see how these extraneous circumstances can make the decision mala fide."
(13) Learned Counsel next submitted that the High Court can exercise its power of judicial review to ensure that all participating bidders are entitled to a fair, equal and non-discriminatory treatment in evaluation of their tenders. The authority can grant relaxation for bona fide and cogent reasons provided such relaxation is permissible under the terms governing the tender process. In support of his submission he relied on a decision of the Hon'ble Apex Court in the case of Maa Binda Express Carrier-vs.-North East Frontier Railway, (2014) 3 SCC 760, and in particular on paragraph 8 of the judgment which reads as follows:-
"8. The scope of judicial review in matters relating to award of contract by the State and its instrumentalities is settled by a long line of decisions of this Court. While these decisions clearly recognize that power exercised by the Government and its instrumentalities in regard to allotment of contract is subject to judicial review at the instance of an aggrieved party, submission of a tender in response to a notice inviting such tenders is no more than making an offer which the State or its agencies are under no obligation to accept. The bidders participating in the tender process cannot, therefore, insist that their tenders should be accepted simply because a given tender is the highest or lowest depending upon whether the contract is for sale of public property or for execution of works on behalf of the Government. All that participating bidders are entitled to is a fair, equal and non-discriminatory treatment in the matter of evaluation of their tenders. It is also fairly well-settled that award of a contract is essentially a commercial transaction which must be determined on the basis of considerations that are relevant to such commercial decision. This implies that terms subject to which tenders are invited are not open to the judicial scrutiny unless it is found that the same have been tailor made to benefit any particular tenderer or class of tenderers. So also the authority inviting tenders can enter into negotiations or grant relaxation for bona fide and cogent reasons provided such relaxation is permissible under the terms governing the tender process."
(14) Learned Counsel submitted that in the instant case, there was no need to issue the third tender notice with the modified conditions when in terms of the second tender notice a bidder was selected. The tender committee had already exercised its power of review while issuing the NIET No. 8 (second call) of 2014-15 and the terms of the tender process could not be further reviewed as the authorities sought to do. (15) Learned Counsel then submitted that the arbitrary action of cancellation of NIET No. 8 calls for interference of this Court since an able and successful bidder has been wrongfully rejected and an incompetent bidder without proper credentials and resources is sought to be given the public work. This would be to the detriment of the public project. In this connection learned Counsel relied on a decision of the Hon'ble Apex Court in the case of Michigan Rubber (India) Ltd.-vs.-State of Karnataka, (2012) 8 SCC 216, and in particular paragraphs 23 and 24 of the judgment which read as follows:-
"23. From the above decisions, the following principles emerge:
(a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities;
(b) Fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by Courts is very limited;
(c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities. Unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, interference by Courts is not warranted;
(d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and
(e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by Court is very restrictive since no person can claim fundamental right to carry on business with the Government.
(24) 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"?;and
(ii) Whether the public interest is affected. If the answers to the above questions are in negative, then there should be no interference under Article 226."
(16) Learned Counsel then submitted that a public authority even in contractual matters should not have unfettered discretion and in respect of contracts having commercial element even though some extra discretion has to be conceded to such authorities, they are duty bound to follow the norms recognized by the Courts while dealing with public property. In the instant case the respondents are trying to award the work to its 'blue-eyed boy' denouncing the selection of the petitioner company and in the process the respondents refuted their own decision of initiating the second tender as per notification dated 11 July, 2013. In this connection learned Counsel referred to a decision of the Hon'ble Apex Court in the case of Union of India-vs.-Dinesh Engineering Corporation, (2001) 8 SCC 491, and in particular paragraph 15 of the judgment which reads as follows:-
"15. Coming to the second question involved in these appeals, namely, the rejection of the tender of the writ petitioner, it was argued on behalf of the appellants that the Railways under clause 16 of the Guidelines was entitled to reject any tender offer without assigning any reasons and it also has the power to accept or not to accept the lowest offer. We do not dispute this power provided the same is exercised within the realm of the object for which this clause is incorporated. This does not give an arbitrary power to the Railways to reject the bid offered by a party merely because it has that power. This is a power which can be exercised on the existence of certain conditions which in the opinion of the Railways are not in the interest of the Railways to accept the offer. No such ground has been taken when the writ petitioner's tender was rejected. Therefore, we agree with the High Court that it is not open to the Railways to rely upon this clause in the Guidelines to reject any or every offer that may be made by the writ petitioner while responding to a tender that may be called for supply of spare parts by the Railways. Mr. Iyer, learned senior counsel appearing for the EDC, drew our attention to a judgment of this Court in Sterling Computers Ltd. etc. v. M/s. M & N Publications Ltd. & Ors.[ (1993) 1 SCC 445] which has held :
"Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and on what terms. If the decisions have been taken in bona fide manner although not strictly following the norms laid down by the courts, such decisions are upheld on the principle laid down by Justice Holmes, that courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of "play in the joints" to the executive."
But then as has been held by this Court in the very same judgment that a public authority even in contractual matters should not have unfettered discretion and in contracts having commercial element even though some extra discretion is to be conceded in such authorities, they are bound to follow the norms recognized by courts while dealing with public property. This requirement is necessary to avoid unreasonable and arbitrary decisions being taken by public authorities whose actions are amenable to judicial review.
Therefore, merely because the authority has certain elbow room available for use of discretion in accepting offer in contracts, the same will have to be done within the four corners of the requirements of law especially Article 14 of the Constitution. In the instant case, we have noticed that apart from rejecting the offer of the writ petitioner arbitrarily, the writ petitioner has now been virtually debarred from competing with the EDC in the supply of spare parts to be used in the governors by the Railways, ever since the year 1992, and during all this while we are told the Railways are making purchases without any tender on a proprietary basis only from the EDC which, in our opinion, is in flagrant violation of the constitutional mandate of Article 14. We are also of the opinion that the so-called policy of the Board creating monopoly of EDC suffers from the vice of non- application of mind, hence, it has to be quashed as has been done by the High Court."
Contention of the State respondent:-
(17) Appearing for the State respondent, Mr. Abhratosh Majumder, learned Government Pleader referred to the relevant clauses in the NIET which have been extracted above. In addition, he referred to Clause 9 of the NIET which is captioned 'rejection of bid' which reads as follows:-
"The Employer (tender accepting authority) reserves the right to accept or reject any Bid and to cancel the Bid process and reject all Bids at any point of time to the award of the Contract without thereby incurring any liability to the affected Bidder or Bidders or any obligation to inform the affected Bidder or Bidders of the ground for Employer's (tender accepting authority) action."
(18) Learned Government Pleader submitted that the initial offer made by the petitioner company in response to the second call of the NIET was Rs. 7,32,89,500/-. Pursuant to the Executive Engineer's letter dated 25 November, 2014 for revision of the rate, the petitioner company made a revised offer of Rs. 7,08,16,427/-.
(19) Learned Counsel submitted that the eligibility criteria contained in Clause 3(i) of the NIT dated 31 December, 2014 to the effect that the contractor has either to own or arrange through leasehold registered agreement, plant machinery for execution of the work, was implicit also in the earlier tender process. In this connection learned Government Pleader referred to Form No. IV appended to NIET no. 8 of 2014-15 (second call) wherein it was mentioned that original document of owner possession arranged through leasehold agreement was to be annexed. Similar Form No. IV was appended to NIET No. 20 of 2014-15. Hence, there is no material difference with regard to the eligibility criterion of ownership/arrangement of plant and machinery through leasehold agreement. The said form clearly indicated that the contractor must either own the requisite plant and machinery or must arrange the plant and machinery through leasehold agreement. Thus, the contractor was always permitted to arrange plant and machinery for executing the work through leasehold agreement. Hence, the contention of the petitioners that the respondent authorities have tailor-made the eligibility criteria to accommodate a particular tenderer is baseless and misconceived. (20) In so far as eligibility criteria no. 3(i) is concerned, learned Counsel submitted that the respondent authorities being the Employer, have absolute discretion to impose certain financial conditions on the contractor to examine the financial credibility of the participating contractor. Consequently, the financial requirement was increased from 30 per cent to 40 per cent of the amount estimated put to tender. (21) Learned Counsel relied on the decision of the Hon'ble Apex Court in the case of Maa Binda Express Carrier-vs.-North-East Frontier Railway (supra), in support of his submission that although the power exercised by the Government and its instrumentalities with regard to the allotment of contract is subject to judicial review at the instance of an aggrieved party, submission of a tender in response to a notice inviting such tenders is no more than making an offer which the State or its agencies are under no obligation to accept. A bidder participating in the tender process cannot insist that his tender must be accepted simply because the given tender is highest or lowest depending upon whether it is for sale of public property or for execution of works on behalf of the Government. The terms subject to which tenders are invited are not open to judicial scrutiny unless it is found that the same have been tailor-made to benefit any particular tenderer or class of tenderers.
(22) Learned Government Pleader then relied on a decision of the Hon'ble Apex Court in the case of Monarch Infrastructure (P) Ltd.-vs.- Commissioner, Ulashnagar Municipal Corporation, (2000) 5 SCC 287, in support of his submission that the Courts will not generally interfere with the matters of administrative action or changes made therein unless the Government's action is arbitrary or discriminatory or the policy adopted has no nexus with the object it seeks to achieve or is mala fide. Learned Government Pleader further submitted that the Hon'ble Apex Court in the said decision also observed that the Authority floating a tender is the best judge of what should be the terms and conditions thereof.
(23) Learned Government Pleader then submitted that in so far as the financial condition is concerned, it is no longer res integra that the Government has a discretion to adopt a different policy or alter or change the policy calculated to serve public interest to make it more effective. He further submitted that in case of works contracts, financial ability of the contractor to fulfill the requirements of the job and past experience and whether he has successfully completed similar work earlier, are important considerations in making a commercial decision. In this connection he relied on a decision of the Hon'ble Apex Court in the case of Shimnit Utsch India Private Limited-vs.-West Bengal Transport Infrastructure Development Corporation Limited, (2010) 6 SCC 303, and in particular paragraphs 41 and 52 of the reported judgment which read as follows:-
"41. That the award of a contract, whether it is by private party or by a public body or the State is essentially a commercial transaction was highlighted by this Court in Raunaq International Ltd. v. I.V.R. Construction Ltd. & Ors. (1999) 1 SCC 492. In that case, this Court spelt out the following considerations that weigh in making a commercial decision :
'(1) the price at which the other side is willing to do the work;
(2) whether the goods or services offered are of the requisite specifications;
(3) whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important; (4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality;
(5) past experience of the tenderer and whether he has successfully completed similar work earlier; (6) time which will be taken to deliver the goods or services; and often (7) the ability of the tenderer to take follow-up action, rectify defects or to give post-contract services.'
52. We have no justifiable reason to take a view different from the High Court insofar as correctness of these reasons is concerned. The courts have repeatedly held that government policy can be changed with changing circumstances and only on the ground of change, such policy will not be vitiated. The government has a discretion to adopt a different policy or alter or change its policy calculated to serve public interest and make it more effective. Choice in the balancing of the pros and cons relevant to the change in policy lies with the authority. But like any discretion exercisable by the government or public authority, change in policy must be in conformity with Wednesbury reasonableness and free from arbitrariness, irrationality, bias and malice."
Learned Counsel also referred to paragraphs 44 and 47 of the said decision in support of his contention that the terms of a NIT are not open to judicial scrutiny. He also referred to paragraph 48 of the said judgment in support of his submission that the Writ Court does not sit as a Court of Appeal but merely reviews the manner in which the administrative decision is made.
(24) Learned Government Pleader referred to a letter dated 16 December, 2014 written by the Chief Engineer, South Zone, PW Directorate to the Superintending Engineer, Central Circle, the material portion whereof reads as follows:-
"While going through the above Notice Inviting Tender under Sl. No. 3(ix), it has been noticed that prospective bidders should own the required plant & machineries of prescribed specification as per format to attend the Tender and while inviting the 2nd Call, the same condition of the NIe-T remain unaltered.
In the instant NIe-T it has been noticed that no bidder had attended in the 1st call and in the 2nd call only one bidder attended with 18.54% above and subsequently negotiated to 14.54% above.
As per Notification No. 229-CRC/2M/02/2013 dated 11.07.2013 of Principal Secretary, P.W. Deptt. there is a provision to review the condition of the tender when sufficient number of tender received is less than three in 1st Call but no such review was made from his end particularly on the above mentioned clause. However, he is hereby instructed to call the Tender afresh by providing condition of machineries for own possession/arrange through lease hold registered agreement, etc."
(25) To sum up, he submitted that in the present case the eligibility criterion which was implicit in an earlier tender condition was made explicit in the subsequent tender process. The State Authorities have not departed from the earlier conditions and have not materially changed such conditions. Clause 3(ix) read with Form No. IV always permitted a contractor to use plant and machinery owned by him or arranged by him through leasehold agreement. Further, the financial condition imposed by the State Authorities in Clause 3(i) of the eligibility criteria cannot be subjected to judicial review since it is wholly within the discretion of the employer to stipulate the financial condition for arriving at a conclusion as to whether or not a contractor is capable of executing the works. Contention of the respondent no. 6:
(26) Learned Counsel for the respondent no. 6 adopted the arguments of learned Government Pleader. He further submitted that as per the amended Rule 216 (3) of the PWD Code if upon calling for competitive tenders, the number of tenders received is less than 3, a tender shall be invited afresh. Even if, after taking appropriate steps, the response to the re-tender is less than three, the tender may be accepted without reference to the Finance Department provided the rates do not exceed the estimated or the scheduled rates beyond three per cent in case of works estimate and reasonable prevailing market price for goods and service in other cases. Otherwise, such cases should be referred to the Finance Department for decision. There was no bidder in response to the first tender notice. In response to the second call of the tender notice, the petitioner company's bid was too high. Even the revised bid of the petitioner company exceeded the limit of three per cent. Hence, the petitioner company's bid was liable to be rejected and was rightly rejected by the respondent authorities.
(27) Learned Counsel further submitted that cancellation of the tender by issuance of the communication dated 29 December, 2014 is not under challenge in the present writ application. On that ground alone, the writ application should be dismissed.
(28) The clause reserving power to the respondent authorities to reject any bid without assigning any reason is not under challenge in the writ application. In fact, the petitioners made no reference to the said clause at all. In exercise of power reserved under the said clause the respondent authorities had every right to reject the petitioner company's bid and invite fresh bids.
(29) The tender floated by issuance of the notice dated 31 December, 2014 was not the third call of the original tender but was a fresh tender.
What the terms and conditions of the fresh tender would be was for the authorities to decide and the same was within their exclusive domain. In any event, there was no material change in respect of any of the clauses and the petitioner company's case that clauses 3(i) and 3(ix) under the Eligibility Criteria were changed to suit any particular tenderer, is wholly without basis. In any event, the respondent no. 6 owns the requisite plant and machinery for carrying out the subject work and does not need to arrange such plant and machinery by way of lease. Learned Counsel relied on a decision of the Hon'ble Apex Court in the case of Sterling Computers Limited-Vs.-M/s. M & N Publications Limited, (1993) 1 SCC 445, and in particular paragraph 12 of the reported judgment which reads as follows:-
"12. At times it is said that public authorities must have the same liberty as they have in framing the policies, even while entering into contracts because many contracts amount to implementation or projection of policies of the Government. But it cannot be overlooked that unlike policies, contracts are legally binding commitments and they commit the authority which may be held to be a State within the meaning of Article 12 of the Constitution in many cases for years. That is why the Courts have impressed that even in contractual matters the public authority should not have unfettered discretion. In contracts having commercial element, some more discretion has to be conceded to the authorities so that they may enter into contracts with persons, keeping an eye on the augmentation of the revenue. But even in such matters they have to follow the norms recognised by Courts while dealing with public property. It is not possible for Courts to question and adjudicate every decision taken by an authority, because many of the Government Undertakings which in due course have acquired the monopolist position in matters of sale and purchase of products and with so many ventures in hand, they can come out with a plea that it is not always possible to act like a quasi-judicial authority while awarding contracts. Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bona fide manner although not strictly following the norms laid down by the courts, such decisions are upheld on the principle laid down by Justice Holmes, that Courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of 'play in the joints' to the executive."
(30) Learned Counsel also relied on the decision of the Hon'ble Apex Court in the case of State of UP-vs.-M/s. AL Faheem Meetex Private Limited, 2016 (2) Supreme 46, and in particular paragraphs 11 to 14 of the said decision which read as follows:-
"11. It is argued by the learned counsel for the appellant that the High Court is not justified in quashing the decision of the BEC dated November 22, 2010 without considering the terms as contained in Clause 2.7.1 of the RFP and the Guidelines laid down vide G.O. dated June 29, 2007 for selection of Developers for PPP Projects wherein discretion is conferred on the authority to accept or reject any or all bid proposals. The steps for selection of consultant as laid down in Part-I of the Guidelines are applicable for the selection of Developer as well. Chapter II of Part I of the Guidelines specifically provides that the employer will have the right to reject all proposals. The relevant portion of the Guidelines are as under:
"Rejection of All Proposals, and re-invitation The Employer will have the right to reject all proposals. However, such rejections should be well considered and normally be in cases where all the bids are either substantially in deviation to the TOR or considered unreasonably high in cost. If it is decided to re-invite the bids, the terms of reference should be critically reviewed/modified so as to address the reasons of not getting any acceptable bid in the earlier invitation for Bids."
Learned counsel also pointed out that Clause 2.7 of the RFP is also to the same effect which empowers the Authority to accept or reject any bid proposal and annul the whole bidding process.
12. Learned counsel for respondent No.1, on the other hand, impressed upon the reasons given by the High Court and submitted that the appeal be dismissed.
13. We find force in the aforesaid argument of the learned counsel for the appellants. In the first instance, it is to be noted that BEC is only a recommendatory authority. It is the Competent Authority which is to ultimately decide as to whether the recommendation of BEC is to be accepted or not. We are not entering into the discussion as to whether this Competent Authority is the State Government or the Municipal Corporation. Fact remains that there is no approval by either of them. Matter has not even reached the Competent Authority and no final decision was taken to accept the bid of respondent No.1 herein. Much before that, when the BEC was informed that there were only two valid bids before it when it made its recommendation on September 08, 2010 and as per the Financial Rules there must be three or more bids to ensure that bidding process becomes competitive, the BEC realised its mistake and recalled its recommendation dated September 08, 2010. It cannot be said that such a decision was unfair, mala fide or based on irrelevant considerations. This, coupled with the fact that the authority has right to accept or reject any bid and even to annul the whole bidding process, the High Court was not justified in interfering with such a decision of the BEC.
14. The High Court has also gone wrong in finding fault with the decision of the BEC by holding that such a subsequent decision could not have been taken by the BEC without notice to or in the absence of the appellant. When the decision making process had not reached any finality and was still in embryo and there was no acceptance of the bid of respondent No.1 by the Competent Authority, no right (much less enforceable right) accrued to respondent No.1. In such a situation, there was no question of giving any notice or hearing to respondent No.1."
(31) Learned Counsel finally submitted that no right has accrued in favour of the petitioner which can be enforced by way of a writ petition. In public interest the respondents were at liberty to annul the earlier tender process and float tender process afresh. The petitioner company was at liberty to participate in the fresh tender but has not done so. Learned Counsel prayed for dismissal of the writ petition. Contention of the respondent no. 7:-
(32) Learned Counsel for the respondent no. 7 adopted the arguments of learned Counsel for the State respondents and the respondent no. 6. He further submitted that the respondent no. 7 has better eligibility than the petitioner company. The petitioner company has no vested right as regards award of the contract. He further submitted that the tender process is not to be lightly interfered with. In this connection learned Counsel referred to a decision of the Hon'ble Apex Court in the case of Jagdish Mondal -vs.-State of Orissa, (2007) 14 SCC 517, and in particular paragraph 22 of the reported judgment which reads as follows:-
"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:
i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;
OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: 'the decision is such that 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 black- listing 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."
(33) Learned Counsel also relied on the decision of the Hon'ble Apex Court in the case of Maa Binda Express Carrier-Vs.-North-East Frontier Railway (supra), in support of his submission that awarding of a tender is essentially a commercial decision of the State which is not to be lightly interfered with and in the absence of arbitrariness or manifest unfairness the courts will not intervene.
Petitioner's in reply:-
(34) In reply, learned Counsel for the petitioners referred to a communication dated 11 December, 2014 issued by the Superintending Engineer to the Chief Engineer and the Chairman of the tender committee wherein he stated inter alia as follows:-
"The rate obtained from Berhampore Construction Syndicate Pvt. Ltd. stands & 14.54% (Fourteen point five four percent) above than the BOQ of the work seems to be reasonable and hence recommended for acceptance of the tender."
Learned Counsel submitted that in view of such recommendation, the offer of the petitioner company should have been accepted and there was no justification for cancellation of the tender process. Court's View:-
(35) Arguments have been advanced at length by learned Counsel for the parties. However, the short point that falls for determination is whether or not the cancellation of NIET No. 8 of 2014-15 (hereinafter referred to as the 'second notice') and issuance of the NIET No. 20 of 2014-15 (hereinafter referred to as the 'third notice') were done by the respondent authorities arbitrarily or with a view to favouring any particular party.
(36) The petitioners contend that the petitioner company's offer pursuant to the second notice, as subsequently revised, was recommended for acceptance by the Superintending Engineer to the Chief Engineer and Chairman of the tender committee by communication dated 11 December, 2014 and there was no reason for cancellation of the tender process thereof. They contend that the tender process was cancelled arbitrarily, without any justification and without mentioning any ground in the cancellation letter. In hot haste, within two days the third notice was issued with changed terms and conditions of tender which were tailor-made for the private respondents. Learned Counsel has relied on decisions of the Hon'ble Apex Court in support of his submission that if the terms and conditions of a tender are tailor-made to favour any particular tenderer or class of tenderers, the Writ Court should intervene in exercise of its power of judicial review. I have noted the decisions cited by Learned Counsel for the petitioners in this regard.
(37) There are apparently two material differences between the terms and conditions of the second notice and the third notice. These are with regard to the magnitude of work of similar nature that the intending tenderer has executed in the past and with regard to the requirement of owning plant and machinery required for executing the job in question.
The second notice required a tenderer to have executed at least one work of similar nature having a magnitude of at least 30 per cent of the estimated amount put to tender. In the third notice, this 30 per cent was increased to 40 per cent. As regards the ownership of the plant and machinery, the second notice apparently required that the tenderer should own the required plant and machinery of prescribed specifications. The third notice however contemplated that the prospective bidder should own or arrange through leasehold registered agreement the required plant and machinery of prescribed specifications. The petitioners contended that increasing the magnitude of the past work of similar nature was to eliminate the petitioner company and relaxation of the requirement regarding ownership of the requisite plant and machinery to facilitate and favour the private respondents. This is the crux of the grievance of the petitioners.
(38) It is settled law that the Writ Court normally does not interfere with the terms and conditions of a tender. It is for the authority floating the tender to decide what the terms and conditions should be. Such authority would have expert and special knowledge regarding the work to be executed and the terms and conditions of the tender should be so formulated as to ensure that the most deserving tenderer is awarded the contract. When the Government or an instrumentality of the Government or a public authority floats a tender for execution of a public project, they operate in the commercial field. While it is true that the acts and activities of the Government or a public authority are subject to judicial scrutiny, some amount of independence, freedom and leverage must be given to the Government or the public authority when it operates in the commercial or contractual sphere. As was observed by the Hon'ble Apex Court in the case of Sterling Computers Limited-vs.-M/s. M & N Publications Limited (supra), the authorities who have to enter into a contract with a private party for execution of a public project have to be given the discretion and liberty to assess the overall situation for the purpose of deciding as to whom the contract should be awarded and on what terms. This elbow room of course does not mean that the authorities have an unfettered discretion in the matter. Their decisions cannot be arbitrary and are open to scrutiny on the touchstone of Article 14 of the Constitution of India.
(39) In Raunak International Limited-vs.-I.V.R Construction Limited (supra), the Hon'ble Apex Court observed that taking a decision regarding award of a contract is essentially a commercial decision. Hon'ble Apex Court also enumerated the considerations that should weigh with the party, be it a private party or a public authority, which has to award the contract. I have extracted the relevant paragraphs of the said judgment above. The authority is entitled to assess the ability of the tenderer to execute the job. This would also entail assessing the financial credibility and solvency of the tenderer. The past experience of the tenderer in executing jobs of a similar nature would also be relevant. Thus, the authority would be well within its powers to design the terms and conditions of the tender in a manner so as to ensure that the successful tenderer has the requisite experience, has the necessary resources including the funds and infrastructure, and in general to ensure to the extent possible that the project in question would be properly executed as per the specifications.
(40) In Jagdish Mondal-vs.-State of Orissa (supra), the Hon'ble Apex Court reiterated the restraint that the Writ Court should practice in interfering with tender matters. In a commercial transaction, principles of equity and natural justice stay at a distance. If the decision to award a contract to a particular party has been taken in good faith and in larger public interest, the Courts, in exercise of power of judicial review, will not interfere even if procedural lapses or error in assessment or prejudice to a particular tenderer is made out. It is open to the aggrieved party to seek damages in a Civil Forum. The Hon'ble Apex Court, in Jagdish Mondal (supra) formulated three questions which a Court should pose to itself before interfering in tender or contractual matters, in exercise of its power under Art. 226 of the Constitution. These are, firstly, whether the process adopted or decision made by the authority is mala fide or intended to favour someone; secondly, whether the procedure adopted or decision taken suffers from the vice of Wednesbury reasonableness in the sense that the decision is such that no responsible authority acting reasonably and in accordance with the applicable law could have reached, and thirdly, whether public interest is adversely affected by the decision of the authority. If the answers to the said questions are in the negative, interference by the Writ Court is not warranted. (41) In Maa Binda Express Carrier-vs.-North East Frontier Railway (supra), the Hon'ble Apex Court reiterated that awarding of a tender is essentially a commercial decision of the State and the Court will be slow to interfere in such a mater in the absence of arbitrariness or manifest unfairness and lack of fair play.
(42) It is also trite law that none of the bidders in a tender process can insist that his tender should be accepted only because the same is most favourable to the authority floating the tender. Thus, even if a particular party's tender is lowest in the case of execution of a project or is the highest in the case of sale of public property, such party has no legal right to insist that his tender must be accepted. All that a participating tenderer is entitled to is being treated in a fair, equal and non- discriminatory manner in the matter of evaluation of his tender. No unsuccessful tenderer can be permitted to invoke the writ jurisdiction of the High Court to ventilate his private grievance stemming from the contract not being awarded to him. Very often, the challenge thrown to a tender process by an unsuccessful tenderer is prompted by a bruised ego. The Hon'ble Apex Court has warned time and again that such attempts should be nipped in the bud as they have the pernicious effect of holding up public projects and the real sufferers are the public at large.
(43) Keeping the aforesaid principles of law in my mind, when I advert to the facts of the present case, I am not convinced that the petitioners have any legitimate grievance. First let me address the issue of cancellation of the tender process initiated by the second notice. Admittedly, there were only two tenderers, i.e. the petitioner company and the respondent no. 6 herein. The bid of the respondent no. 6 was rejected due to inadequate proof of ownership of the required plant and machinery. Pursuant to the Executive Engineer's notice dated 25 November, 2014, the petitioner company submitted a revised lower rate by its letter dated 28 November, 2014. By a letter dated 16 December, 2014, the Chief Engineer, South Zone, PW Directorate recorded that in the second call of the first NIET there was only one bidder 'with 18.54 per cent above and subsequently negotiated to 14.54 per cent above'. The Chief Engineer referred to the Government notification dated 11 July, 2013 whereby rule 216(3) of the PWD Code was amended and in view of the fact that even in the second call there were less than three tenderers and the only tenderer that qualified was 14.54 per cent above, instructed the Superintending Engineer to call fresh tender by 'providing condition of machineries for own possession/arrange through leasehold registered agreement, etc.' Consequently, by communication dated 29 December, 2014 the tender was cancelled. It was stated in the cancellation order that the same was due to administrative reasons. (44) I see nothing wrong with the cancellation of the tender in the facts of the case. As per amended Rule 216 (3) of the PWD Code, if pursuant to the first notice the number of tenders received is less than three, the tender shall have to be invited afresh. Since pursuant to the first notice dated 4 September, 2014 there were no bidders, the second notice dated 16 October, 2014 was issued. This was the second call of the same tender. Out of the two bidders in response to the second call it was found that the present respondent no. 6 did not furnish adequate proof of ownership of requisite plant and machinery. Accordingly, his bid was rejected. The petitioner company's bid was lowered by it pursuant to negotiation but was still beyond three percent of the estimated or the scheduled rates. Hence, as per Rule 216(3) of the PWD Code the same could not be accepted. Cancellation of the tender was hence fully justified. This is apart from the fact that Clause 9 of the NIET empowered the authority to reject any bid and to cancel the bid process without having any obligation to inform the affected bidder of the ground for such action. The petitioner company did not have any vested right to have the contract awarded in its favour. The tender process was cancelled for administrative reasons prior to acceptance of the petitioner company's bid by the tender committee. The recommendation of the Superintending Engineer did not create any right in favour of the petitioner company. Indeed, it is surprising as to how the Superintending Engineer could recommend that the petitioner company's bid be accepted in view of the fact that the same was beyond three per cent of the estimated/scheduled rates.
(45) It is true that when a public authority passes an order based on certain grounds the validity of such order must be judged by the reasons mentioned in the order and cannot be supplemented by fresh reasons in the shape of an affidavit or otherwise. This principle has been laid down by the Hon'ble Apex Court in the case of Mohinder Singh Gill (supra). However, the Hon'ble Apex Court has subsequently laid down that in case documents on record justify the impugned order or action of the public authority, the same can be looked into to decide whether or not the order/action under challenge can be sustained, where public interest in involved. In this connection one may refer to All India Recruitment Board-vs.-K. Sham Kumar, (2010) 6 SCC 614, wherein it was held that the decision maker can always rely upon subsequent materials to support the decision already taken when larger public interest is involved. The Apex Court referred to its earlier decision in Madhyamic Shiksha Mondal, MP-vs.-Abhilash Shiksha Prasar Samity, (1998) 9 SCC 236, where the Apex Court did not find any irregularity in placing reliance on a subsequent CBI report to sustain the decision to cancel the examination where there were serious allegations of mass copying. (46) In view of the aforesaid, I find no infirmity in cancellation of the first tender process.
(47) Cancellation of the first tender process naturally necessitated initiation of a fresh tender process which was done by NIET dated 31 December, 2014. Two apparent material changes in the eligibility criteria were made in this NIET as indicated above and with which the petitioners are aggrieved.
(48) As regards the increase of 30 per cent to 40 per cent of the estimated amount put to tender regarding the magnitude of work of similar nature that the prospective bidder must have completed in the past, in my opinion, the petitioners can have no valid grounds to complain. It is the prerogative and indeed the duty of a public authority to assess the financial credibility of a tenderer before awarding a subject contract to him. I agree with the learned Government Pleader's contention that the financial condition imposed in Clause 3(i) of the eligibility criteria is wholly within the discretion of the respondent authority and the same is beyond the scope of judicial review in the absence of the petitioners demonstrating that the same was done mala fide or with any oblique motive to favour any particular party. The petitioners have not been able to establish any such case. (49) As regards the relaxation of the condition relating to ownership of the required plant and machinery, I find substantial force in the submission of Learned Government Pleader that such relaxation was implicit in the NIET pertaining to the second call of the first tender. In Form No. IV appended to NIET No. 8 of 2014-15 (second call) it was stated that original document of owner possession arranged through lease hold agreement was to be annexed (emphasis is mine). To similar effect was Form No IV appended in NIET No. 20 of 2014-15. Hence, the earlier NIET (second call) also contemplated that the tenderer could arrange the required plant and machinery through registered leasehold agreement. Although this was not expressly stated in the bid of the earlier NIET, this was inherent therein upon a meaningful reading of the NIET documents. Hence, in my opinion, there was no relaxation of the eligibility criterion pertaining to ownership/leasehold arrangement of required plant and machinery by the tenderer. There was no material difference in this eligibility criterion in the second NIET as compared to the first NIET (second call).
(50) Even assuming for the sake of argument that the first NIET (second call) did not permit entertainment of a bid from a tenderer who did not own the requisite plant and machinery and the second NIET relaxed such restriction by permitting the tenderer to arrange the required plant and machinery through leasehold agreement, I see no infirmity or illegality in such relaxation. Amended Rule 216 (3) of the PWD Code clearly contemplated that in case re-tender is necessitated by reason of there not being at least three tenderers in respect of the first NIET, the eligibility criteria contained in the NIET would have to be reviewed by the tender inviting authority inter alia to ascertain whether such criteria were too restrictive. In view of such provision, the Chief Engineer in his letter dated 16 December, 2014 instructed issuance of fresh tender by making it explicit in the fresh NIET that the tenderer could either be the owner of the required plant and machinery or could arrange for the same through leasehold agreement. Clearly, the authority perceived that requiring the tenderer to be the owner of the required plant and machinery was too onerous an eligibility criterion. Hence, the same was relaxed. This was done in the interest of execution of the concerned public project. To my mind, it is completely irrelevant as to whether the successful tenderer is the owner of the required plant and machinery or is in possession thereof under leasehold arrangement so long as he is in a position to deploy the required plant and machinery for execution of the project in question. Hence, even assuming there was relaxation of the eligibility criteria regarding ownership of the required plant and machinery I find nothing unreasonable or arbitrary about the same. (51) The petitioners contended that the relaxation regarding the ownership of the required plant and machinery was done to favour the private respondents. This was a bald allegation made by the petitioners which could not be substantiated to any extent. The petitioners have not placed anything before me to establish that the private respondents do not own the required plant and machinery. On the contrary, the respondent no. 6 has asserted that he owns the requisite plant and machinery for carrying out the subject work. However, I am not required to enter into such controversy as to whether or not the private respondents own the required plant and machinery. It is for the authority concerned to decide what the terms and conditions of a tender should be keeping in view the nature and requirements of the project in question. The petitioners have not been able to establish any case of nepotism or favoritism on the part of the respondent authorities in favour of the private respondents.
(52) It is also pertinent to note that the petitioner company has not participated in the fresh tender process. It could have done so even if under protest contending that cancellation of the earlier tender process was bad in law. The petitioners chose to stay away from the fresh tender process. Hence, how far the petitioners have the standing to challenge the terms and conditions of the fresh tender process, is also doubtful. It is also a fact, as pointed out by learned Counsel for the private respondent no. 6 that the petitioners have not challenged the communication dated 29 December, 2014 whereby the first tender process was cancelled. However, my decision is based on the broader finding that there is no such infirmity in the tender process under challenge as would justify intervention of the Writ Court. (53) Before concluding I would like to reiterate that in case of execution of a public project by a statutory/public authority, it is the duty of the authority to get the best quality of work done at the least possible cost. Such a project is for the benefit of the public at large and the project cost is met with public funds. Hence, it is the bounden duty of the administration to ensure the best possible bargain without compromising the quality of the work to be executed and to that extent the administration is answerable and accountable to the public at large. If the authority has been of the opinion that the offer received from a bidder pursuant to a notice inviting tender is on the higher side and there is possibility of receiving a better offer if fresh tender is floated with appropriate changes in the terms and conditions of the tender, such decision of the authority should not be interfered with in the absence of any glaring infirmity or blatant illegality in the decision making process. After all, it is too well established that the writ Court is not concerned with the decision but will only scrutinize the decision making process. To judge the wisdom of an executive decision or action is beyond the domain of the High Court exercising the power of judicial review. So long as the procedure followed in taking a decision or action cannot be faulted, the Writ Court will refrain from intervening, as in the present case. (54) In view of the aforesaid, this writ petition fails and is dismissed with costs assessed at Rs. 20,000/- to be paid by the petitioner to the respondent no. 1. Interim order stands vacated. I have awarded the costs in view of my definite opinion that this is a completely meritless writ application and a public project has been held up by reason of pendency of the writ application and the interim order that was operative therein. (55) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
(Arijit Banerjee, J.)