Gauhati High Court
WP(C)/5507/2020 on 9 May, 2022
Author: Manish Choudhury
Bench: Manish Choudhury
Page No. 1/32
GAHC010181872020
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
W.P.(C) No. 5507/2020
M/s Techno Canada Inc
Through its authorized representative
Shri Roopendra Narayan Chakravorty,
Having its registered office at
607, Cheriton Crescent, Edmonton,
Alberta T6R 2N3, Canada,
Local Office at
C/o RK Choudhary and Co.
Puspalaya, 1st Floor, TR Phukan Road,
Opposite Force Motors, Chowkidhingee,
Dibrugarh-786001, Assam.
.................. Petitioner
-Versus-
1. Oil India Limited
through its CMD
Shri Sushil Chandra Mishra,
A Government of India Enterprise
Having its Registered office at
P.O. - Duliajan, District - Dibrugarh,
Pin-786604, Assam.
2. Shri G.C. Dev Choudhary ,
Executive Director, Oil India Ltd.
P.O. - Duliajan, District - Dibrugarh,
PIN-786604, Assam.
3. M/s BVishal Oil & Energy Ltd.
Having its Registered office at
Page No. 2/32
BSCC House, opposite ONGC Colony
Highway Road, Palavasana, Mehsana,
Pin-384003, Gujarat.
.................. Respondents
Advocates :
Petitioner : Mr. K.N. Choudhury, Senior Advocate
Mr. A. Das & Mr. A. Sanjay, Advocates
Respondent nos. 1 & 2 : Mr. S.N. Sarma, Senior Advocate
Mr. K. Kalita, Advocate
Respondent no. 3 : Mr. B.D. Das, Senior Advocate
Ms. B.B. Hussain, Advocate
Date of Hearing : 09.11.2021 & 25.11.2021
Date of Judgment & Order : 09.05.2022
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER
The writ petition under Article 226 of the Constitution of India has been preferred by the petitioner seeking inter alia [a] a writ in the nature of mandamus for cancellation of E-Tender no. CDG5746P18 awarded in favour of the respondent no. 3; [b] a writ of similar nature directing the respondent no. 1, Oil India Limited to follow their Integrity Pact signed by the respondent no. 3 and to follow its Banning Policy to disqualify the respondent no. 3 as per the terms and conditions of the Integrity Pact from the tender process under reference and also from future contract award processes. A prayer is also made for a direction to the respondent no. 1 to hold an enquiry against the respondent no. 2 and its other officials for not conducting a proper enquiry into the fake/fraudulent documents allegedly submitted by the respondent no. 3 and to hold an enquiry for dealing the entire process unjustifiably.
2. The petitioner company has stated that it is incorporated in Canada as per the provisions of the Companies Law. The respondent no. 1-Oil India Limited, a Navaratna Category Government of India enterprise, is a Oil company [hereinafter referred to as 'the OIL' and/or 'the Company', for convenience] engaged in exploration, production and transportation of crude oil & natural gas; and the Page No. 3/32 respondent no. 2, who has been impleaded by name, is the Executive Director of the respondent no. 1 company ['the OIL' and/or 'respondent Company, for short]. The petitioner no. 3 is a company incorporated under the provisions of the Companies Act, 1956/2013.
3. The genesis of the dispute raised in this writ petition is relatable to a tender notice, E-Tender no. CDG5746P18 dated 14.09.2017 ['the E-Tender', for short] whereby the respondent OIL invited International Competitive Bids [ICB] from competent and experienced Contractors through OIL's E- procurement site for the Contract-Work :-
"Hiring the Services of 4 [four] nos. of Surface Production Facility Packages for OIL's operational area in Assam and Arunachal Pradesh for a period of 3 [three] years with a provision to enter into a framework agreement."
4. The type of bidding was on-line single stage - two bid system. As per the E-Tender, the duration of the contract was 3 [three] years from the date of commencement of operation with a provision for extension of the contract duration by another 1 [one] year at same terms and conditions, scope of work and mutually agreed rates limited to the contract rates, at the discretion of the OIL. The contract would have a provision for quantity extension by another 2 [two] units of surface production facility setup during the duration of the contract period of 3 [three] years or extended period of 1 [one] year. The bidders were required to submit both the technical bid and the price bid through electronic form in the E-procurement portal of the respondent OIL within the stipulated bid closing date and time.
5. Part-1 of the Bid Document contained the Instructions to Bidders [ITB] setting forth the documents which were required to accompany the bid of a bidder. Part-2 of the Bid Document contained the Bid Evaluation Criteria [BEC]. Clause 1.0 of the Bid Document had laid down the Bid Evaluation Criteria [BEC]. Clause 1.1 had mentioned about the experience and Clause 1.2 was with regard to a bid from Indian Company/Indian Joint Venture Company with Technical Collaboration/Joint Venture Partner. The afore-mentioned clauses along with Clause 1.3 are quoted herein for ready reference :-
"1.0 A. TECHNICAL EVALUATION CRITERIA :
1.1 EXPERIENCE :Page No. 4/32
[i] The bidder shall have the experience of providing Surface Production Setup Facility/Surface Production Testing Service in at least five [5] numbers of oil/gas wells using minimum 10000 PSI rated well test package during the last 7 [seven] years reckoned from the original bid closing date.
[ii] In support of the experience criteria of A.1.1.[i] above, the bidder must furnish the following documentary evidences self-certified, in the form of :
[a] Copies of Relevant pages of the contract document showing Contract Number, period of contract and Scope of work etc. [b] Copies of completion certificate[s] or payment certificate[s] or any other documents which substantiate completion of the jobs, issued by the client[s] with contact details of the issuing person/organization [e-mail address, Phone Number, Fax number etc.].
[iii] All major equipment offered for this tender i.e. Separator, Choke Manifold, Oil Pump and Surge Tank shall not be more than 5 [five] years old [i.e. manufactured not before 01.01.2012]. Bidder has to provide self-declaration confirming compliance to the same.
1.2 BID FROM INDIAN COMPANY/INDIAN JOINT VENTURE COMPANY WITH TECHNICAL COLLABORATION/JOINT VENTURE PARTNER :
In case, the bidder is an Indian Company/Indian Joint Venture Company who does not meet the experience criteria as per Clause no. A.1.1.[i] above, may also bid on the strength of Technical Collaborator/Joint Venture Partner provided all the following criteria are complied :
[a] The primary bidder shall have the experience of successfully completing at least 1 [one] no. of contract for providing oilfield services relating to oil and gas well operations like Drilling/Workover/Production Testing/Matrix Acidization/Well Stimulation/Sand Control, during the last 7 [seven] years prior to the original bid closing date. In support of the experience, the bidder shall submit documentary evidences as per clause A.1.1.[ii] above.
OR The primary bidder shall have the experience of successfully providing services relating to oil and/or gas well operations like Page No. 5/32 Drilling/Workover/Production Testing/Well Stimulation/Matrix Acidization/Sand Control continuously for a period of at least 1 [one] year to be reckoned from the original bid closing date under a single contract. [b] The primary bidder shall meet the financial criteria clause B sub-clauses 1.0, 2.0, 3.0, 4.0 and 5.0 below.
[c] The Technical Collaborator/Joint Venture Partner at its own shall meet the experience criteria A.1.1.[i] above. The experience of the Technical Collaborator/Joint Venture with other firms will not be qualified. In this regard, the documents establishing experience of the Technical Collaborator/Joint Venture Partner shall be submitted as per clause A.1.1. [ii] above.
1.3 Indian bidders quoting based on Technical Collaboration/Joint Venture, shall submit a Memorandum of Understanding [MoU]/Agreement with their Technical Collaborator/Joint Venture Partner clearly indicating their roles under the scope of work which shall be addressed to OIL and shall remain valid and binding for the contract period under this tender."
6. In response to the E-Tender dated 14.09.2017, 9 [nine] nos. of bidders participated in the bidding process by offering their bids. The techno-commercial bids were opened on 21.11.2017. Upon evaluation of the techno-commercial bids, the techno-commercial bids of 7 [seven] nos. of bidders were found qualified. The petitioner and the respondent no. 3 were amongst those 7 [seven] bidders whose techno-commercial bids were accepted. The price bids of all those 7 [seven] bidders were opened on 11.01.2018. After evaluation of the price bids, the respondent no. 3 viz. M/s B Vishal Oil & Energy Limited [earlier known as M/s Vishal Enterprise] emerged as the L-1 bidder. Accordingly, the respondent OIL issued a Letter of Award [LoA] for the Contract-Work on 27.01.2018 in favour of the respondent no. 3 at a total estimated contract cost of US $ 64,90,251.40 including all applicable levies, duties but exclusive of GST and Customs Duty which shall be payable extra by the OIL, if applicable as per the cost details mentioned therein. As per the LoA dated 27.01.2018, the duration of the Contract-Work was 3 [three] years from the date of commencement of operation with a provision for extension of the contract duration by another 1 [one] year at the same terms and conditions, scope of work and mutually agreed rates limited to the contract rates, at the discretion of the OIL. The LoA had Page No. 6/32 further prescribed that the mobilization against the Contract-Work shall have to be completed within 90 [ninety] days from the issuance of the LoA.
7. It is in the above backdrop of events, the present writ petition seeking the reliefs, mentioned above, was filed on 09.12.2020.
8. The case of the petitioner, as found averred in the writ petition, is, in brief, that : the respondent no. 3 while participating in the bidding process, projected one 'M/s 3 & 1 Enterprises, De Quincy Louisiana, USA' as its technical collaborator and submitted a Completion Certificate dated 03.11.2017 issued from the end of one 'M/s Pintail Oil & Gas LLC' by one 'Mr. Robert Perkins' as the signatory wherein it was certified that 'M/s 3 & 1 Enterprises' located in De Quincy had successfully completed 6 [six] well test pressures with over 10,000 PSI in Beauregard and Calcasieu Parishes and the wells completed were : SL12239/001, WOOD 10H/001, MD 33/011-ALT, AKS PROP/001, FM 6/001 & OWENS/001. Along with the Completion Certificate, the respondent no. 3 had also submitted an Work Order no. CF-15128 dated 10.01.2016 issued by Mr. Robert Perkins.
8.1. The contention of the petitioner is that the bid of the respondent no. 3 was accepted on the basis of the afore-mentioned two documents, that is, the Completion Certificate dated 03.11.2017 and the Work Order dated 10.01.2016. The petitioner had alleged that on perusal of the Work Order dated 10.01.2016, it was noticed that the Work Order was issued in favour of one 'M/s 3 & 1 Enterprises T&R Inc', an entirely different company. The petitioner came to learn about such potential fraud committed by the respondent no. 3 in Petrowatch, an English language intelligence newspaper on the Indian Oil Industry, in its issue dated 25.01.2018. It is stated that the petitioner launched a due diligence exercise on its own immediately thereafter to probe into the authenticity of the documents furnished by the respondent no. 3 and gained evidences proving fabrication of the two documents mentioned hereinabove.
8.2. The petitioner contacted the representative of M/s Pintail Oil & Gas LLC, one Mr. Alec Watson to authenticate the genuineness of the Completion Certificate and the Work Order. In response, Mr. Alec Watson stated to have replied vide an e-mail dated 08.03.2018 wherein it was mentioned that Mr. Robert Perkins was neither an officer of M/s Pintail nor he was authorized to speak on behalf of M/s Pintail. The petitioner had come to know from the information received from a website named Sonris Page No. 7/32 [Strategic Online Natural Resources Information System], maintained by the State of Louisiana, that well test pressures between 10.01.2016 and 03.11.2017 were shown between 80 to 2500 PSI. The petitioner had further asserted to have received information to the effect that M/s 3 & 1 Enterprises Inc in whose favour the Completion Certificate was issued, had become voluntarily inactive on 29.05.2014 and thus, the Completion Certificate issued in the name of M/s 3 & 1 Enterprises Inc, an inactive company, on 03.11.2017 was nothing but a fake and fabricated document. The petitioner had further asserted that in the records available in the public domain in the State of Louisiana, M/s 3 & 1 Enterprises Inc was shown to have an estimated annual revenue of $ 76,000/- whereas the value of the Contract-Work awarded to the respondent no. 3 was more than Rs. 48 Crores and thus, it was extremely unlikely for M/s 3 & 1 Enterprises Inc to render service in such Contract-Work when their annual revenue was only 1.2% of the value of the Contract-Work. According to the petitioner, the address provided by M/s 3 & 1 Enterprises Inc in the public domain was also a fake address and there was no physical office of the company at the said address. The petitioner had alleged that at the given address, there was a trailer shack.
8.3. Having learnt about fake/fraudulent nature of documents submitted by the respondent no. 3 in order to get the Contract-Work, the petitioner filed a complaint before the Chairman and Managing Director, OIL on 08.03.2018 furnishing all the above evidences and made a request to reject/cancel the Contract-Work awarded to the respondent no. 3. Cognizance was taken on the complaint and Independent External Monitors [IEMs] were appointed to look into the complaint of the petitioner. The first meeting of the IEMs was held on 12.04.2018 and after hearing the petitioner and the respondent no. 3, it was observed that the respondent OIL appeared to have relied on claims and documents submitted by the respondent no. 3 in respect of their technical collaborator and works completed by them for M/s Pintail on face value without any independent due diligence on their part. In the proceeding before the IEMs, it was represented on behalf of the respondent OIL that they would seek further clarification in the matter through their office at Houston, USA. The IEMs advised the respondent OIL to seek confirmation on the authenticity of the claims. The IEMs had observed on 31.05.2018 that in the event it was established that the documents submitted by the petitioner were forged then the OIL should implement the provisions of the Integrity Pact and to keep the IEMs informed of the final outcome of the case.
8.4. The respondent OIL through its lawyer at Houston, Mr. Austin Brister wrote to M/s Pintail Oil Page No. 8/32 & Gas LLC on 30.08.2018 with the request to confirm the authenticity of the Completion Certificate dated 03.11.2017 issued from the end of Mr. Robert Perkins. In response, the CEO of M/s Pintail Oil & Gas LLC stated to have replied by its letter dated 12.09.2018 confirming that the Completion Certificate was not authorized for delivery by M/s Pintail Oil & Gas LLC and the signatory was not an officer of M/s Pintail and did not have the authority to sign on M/s Pintail's behalf or to deliver such a certificate.
8.5. Despite receipt of the letter dated 12.09.2018 from the CEO of M/s Pintail Oil & Gas LLC regarding dubious nature of the Completion Certificate dated 03.11.2017, the respondent OIL authorities did not take any action against the respondent no. 3 and continued to treat him as the successful bidder. It was alleged that even the IEMs were not updated about the letter dated 12.09.2018. The petitioner stated to have enquired about the outcome of its complaint and regarding the final decision given by the IEMs in the matter. It had been alleged that there was complete silence from the end of the respondent OIL authorities in the next 15 [fifteen] months. It was only on 28.01.2020, the petitioner was informed that pursuant to discussion dated 06.03.2019, a decision was taken that there would be no further meeting of the IEMs on the matter as the respondent OIL had acted on the advice of the IEMs. The petitioner had asserted that though the final decision taken by the IEMs, on 06.03.2019, was intimated to the officials of the respondent OIL by e-mail dated 08.03.2019 but the petitioner was kept in dark about such final decision of the IEMs for a prolonged period of time until 28.01.2020. The delay of 326 days of such intimation was inordinate without any excuse, according to the petitioner.
9. I have heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. A. Das and Mr. A. Sanjay, learned counsel for the petitioner. I have also heard Mr. S.N. Sharma, learned Senior Counsel assisted by Mr. K. Kalita, learned counsel for the respondent nos. 1 & 2; and Mr. B.D. Das, learned Senior Counsel assisted by Ms. B.B. Hussain, learned counsel for the respondent no. 3.
10. Mr. Choudhury, learned Senior Counsel appearing for the petitioner has, at first, articulated upon the events sequentially which stated to have compelled the petitioner to institute the writ petition as, according to the petitioner, the petitioner had been wrongfully disallowed from being awarded the Contract-Work by the respondents collusively. He has submitted that from the documents collected by the petitioner and annexed to the writ petition, it is evident that 'M/s 3 & 1 Enterprises' and 'M/s 3 & 1 Page No. 9/32 Enterprises T&R Inc' are two completely different entities. The respondent no. 3 had procured the Contract-Work on the basis of a Work Order no. CF15128 dated 10.01.2016 and a Completion Certificate dated 03.11.2017 issued in favour of M/s 3 & 1 Enterprises Inc, allegedly issued by one Mr. Robert Perkins for and on behalf of M/s Pintail Oil & Gas LLC. The continuance of business activity of M/s 3 & 1 Enterprises Inc after 29.05.2014 itself was doubtful as per the public records of the State of Louisiana, USA and in such situation, issuance of any Work Order in its favour on 10.01.2016 was not possible, not to speak of completion of such works mentioned in the Work Order. When confirmation was received from the competent authority of M/s Pintail Oil & Gas LLC vide e-mail dated 12.09.2018, the respondent OIL authorities should have acted promptly in withdrawing the Contract- Work from the respondent no. 3.
10.1. He has referred to Clause 34.0 of the Bid Document which has provided for an Integrity Pact. All the bidders were required to sign the Integrity Pact and the IEMs were entrusted with the task of implementation of the Integrity Pact in the OIL. When a complaint had been duly lodged before the IEMs which required to submit a report within 8 to 10 weeks as per Section 8 [6] of the Integrity Pact, the IEMs came up with the final decision after a period of 1 [one] year which was clearly unjust. He has, thus, submitted that the IEMs had failed to play the role assigned to it. The authorities in the respondent OIL had also not followed the recommendations of the IEMs in proper spirit and also did not act in a fair, just and transparent manner even after receipt of information regarding deliberate foul play on the part of the respondent authorities which clearly point towards a kind of collusiveness amongst the respondents.
10.2. It is his further contention that the authorities in the respondent OIL had failed to adhere to their own professed norms laid down in the Banning Policy. Clause 4.2 [ii] of the Banning Policy has clearly laid down that when irregularities are noticed after the award of the contract action against such an erring agency like contractor is to be taken when such agency is found involved in corrupt, fraudulent and collusive practice and the period of banning could be up to 3 [three] years as per Clause 4.3. It is his contention that in the given facts and circumstances of the case, the reliefs sought for in the form of a direction to the authorities in the respondent OIL to follow the Integrity Pact signed by the respondent no. 3 and to follow its Banning Policy to disqualify the respondent no. 3 as per the terms and conditions of the Integrity Pact from participating in future tender processes are just and proper.
Page No. 10/3210.3. Before making his above detailed submissions, Mr. Choudhury has, however, submitted that as sufficient time has elapsed after issuance of the LoA dated 27.01.2018 in favour of the respondent no. 3 in respect of the Contract-Work in question which had a tenure of 3 [three] years, he is not pressing the first prayer made in the writ petition for cancellation of the Contract-Work.
10.4. Mr. Choudhury has submitted that in the fact situation obtaining in the case in hand, it is ex- facie evident that injustice has been meted out to the petitioner. He has relied in the decision of the Hon'ble Supreme Court of India in Dwarka Nath vs. Income Tax Officer, Special Circle, D-Ward, Kanpur, reported in AIR 1966 SC 81, to press the point that Article 226 of the Constitution of India has conferred wide powers on the High Court to reach injustice wherever it is found and such power is not limited by any procedural restrictions. Relying upon the decision of the Hon'ble Supreme Court of India in M/s Tilokchand and Motichand & others vs. H.B. Munshi and another, reported in 1969 [1] SCC 110, contention is advanced to the effect that no fetters can be placed on the right of an aggrieved party to seek relief under the discretionary jurisdiction of the Court under Article 226 of the Constitution of India and a writ proceeding under Article 226 of the Constitution of India is not subject to the laws of limitation.
11. Mr. Sarma, learned Senior Counsel appearing for the respondent OIL has raised the issue of maintainability of the writ petition under Article 226 of the Constitution of India at the instance of the petitioner. The petitioner company is neither a citizen of India nor a company incorporated in India. The question of infringement of fundamental right guaranteed under the Constitution of India does not arise in respect of such a foreign entity. Moreover, the deponent signing the affidavit in the writ petition was not properly authorized to institute the writ petition. The writ petition has also suffered from delay and laches. He has submitted that the 3 [three]-year term of the Contract-Work had already expired. From the events that had occurred during the pendency of the present writ petition including institution of an interlocutory application, I.A.[C] no. 1058/2021, it is clearly evident that there is ulterior motive behind institution of the writ petition. The interlocutory application, I.A.[C] no. 1058/2021 was preferred seeking a direction to the respondent OIL to restrain the respondent no. 3 from participating in the subsequent tender processes. Moreover, the final decision of the IEMs dated 08.03.2019 has never been challenged nor the IEMs have been made party-respondents in the writ petition.
11.1. He has further submitted that in the bidding process initiated by the E-Tender, 9 [nine] nos. of Page No. 11/32 bidders participated and the technical bids were opened on 21.11.2017. At the technical bid evaluation stage, bids of 7 [seven] nos. of bidders including the bids of the petitioner and the respondent no. 3, were found compliant. The price bids of those 7 [seven] nos. of bidders were opened on 11.01.2018 and after due scrutiny, the respondent no. 3 was found to be the L-1 bidder and accordingly, the LoA was issued on 27.01.2018.
11.2. He has contended that the body of IEMs is an authority constituted under the Integrity Pact of the Central Vigilance Commission [CVC] and it had considered the complaint lodged by the petitioner as per procedure. Vehemently refuting all the allegations made by the petitioner, Mr. Sarma has submitted that after receipt of the complaint from the petitioner, the respondent OIL authorities sought clarifications from Mr. Robert Perkins of M/s Pintail OIL & Gas LLC, USA and he responded by e- mail dated 17.03.2018 clarifying that the Completion Certificate and the Work Order signified the same entity i.e. M/s 3 & 1 Enterprises T&R Inc and the same was placed in the hearing held before the IEMs on 12.04.2018. After the hearing before the IEMs on 12.04.2018, documents were asked from the respondent no. 3 regarding its technical collaborator and the respondent no. 3 submitted the documents related to its technical collaborator on 02.05.2018. Those documents submitted by the respondent no. 3 were immediately forwarded from the respondent OIL to the IEMs by e-mail on 07.05.2018 for their consideration. A hearing was conducted by the IEMs on 31.05.2018 and after hearing the parties, the IEMs advised the respondent OIL to seek confirmation on the authenticity of the claims made by the respondent no. 3 on the basis of the documents placed before it in an independent manner. Then the respondent OIL through its office in the USA sought clarifications through its engaged representative, one Mr. Austin W. Brister who after contacting the lawyer from M/s Pintail responded by an e-mail dated 05.09.2018 providing certain information in relation to the Completion Certificate in question and Mr. Robert Perkins. Finding the information at some variance with the information provided by the respondent no. 3, the respondent no. 3 was asked again on 06.11.2018 to provide explanation/clarification with documentary evidence. The respondent no. 3 had thereafter, provided a further set of documents to clarify and substantiate its claim regarding genuinity of the Completion Certificate and the Work order. The issue was deliberated thereafter in the Local Management Committee [LMC] meeting of the OIL on 27.12.2018 and the LMC after detailed deliberation, noted the response/documents submitted by the respondent no. 3 and a decision was taken to forward them to the IEMs for their opinion. While forwarding them on 08.02.2019, the LMC had also opined that the response/documents met the requirements of the tender. The final opinion of the IEMs dated Page No. 12/32 06.03.2019 was communicated to the respondent OIL by an e-mail dated 08.03.2019 wherein it was stated that no further meeting on the matter would be conducted since the OIL had acted based on the advice on the IEMs during the hearing.
11.3. The body of the IEMs has no relation with the authorities in the respondent OIL. It is an independent body and has full autonomy to make its decision. As such, the allegation of collusiveness between the respondent OIL and the IEMs is preposterous and absurd, Mr. Sarma has contended. The respondent OIL was not aware of the fact that the final decision of the IEMs in the matter was not conveyed to the petitioner. When the petitioner requested the respondent OIL vide an e-mail dated 16.01.2020, the final decision of the IEMs was communicated to the petitioner by a response e-mail dated 28.01.2020. Whether the IEMs had conveyed its final decision in the matter to the petitioner forthwith or not cannot be ascertained in the writ petition since the petitioner has deliberately not impleaded the IEMs as party-respondents and as such, the petitioner cannot rely the same as a ground for delay in instituting the writ petition with delay, which is otherwise inordinate. He has further contended that after 28.01.2020, there was inexplicable delay on the part of the petitioner itself.
11.4. It is his further submission that if the State or its instrumentality has acted reasonably, fairly and in public interest in awarding contract, interference by Court is restricted. When an administrative decision of awarding contract is made lawfully and bona fide, the Courts does not ordinarily, in exercise of power of judicial review, interfere in matters relating to tenders or award of contracts even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The expert evaluation of a particular tender, more particularly, when it is related to technical evaluation in relation to award of contract of complex nature, the Court while exercising its power under Article 226 of the Constitution of India does not ordinarily sit in appeal to substitute the appraisal of experts by its own decision. To buttress his submissions, Mr. Sarma has referred to the decisions of the Hon'ble Supreme Court of India in Silppi Constructions Contractors vs. Union of India and another, reported in [2020] 16 SCC 489; and Galaxy Transport Agencies, Contractors, Traders, Transports and Suppliers vs. New J.K. Roadways, Fleet Owners and Transport Contractors and others, reported in 2020 SCC OnLine SC 1035.
12. Mr. Das, learned Senior Counsel appearing for the respondent no. 3 has outrightly discarded the allegations leveled by the petitioner against the respondent no. 3 regarding submission of false and Page No. 13/32 fabricated documents in obtaining the Contract-Work in question pursuant to the E-Tender. Questioning the maintainability of the writ petition, he has canvassed almost the same points as has been asserted on behalf of the respondent OIL. Additionally, he has submitted that the respondent no. 3 as the L-1 bidder, had quoted ₹ 49,20,58,403.89 for the Contract-Work whereas one M/s Joybee Energy Private Limited as the L-2 bidder, had quoted ₹ 56,10,60,051.60. The petitioner was only the L-3 bidder as it quoted its bid value at ₹ 78,51,85,303.00 for the Contract-Work. The difference between the L-1 bidder and the L-3 bidder was substantial and there is no public element on that count.
12.1. He has further submitted that in the proceedings before the IEMs, the respondent no. 3 had duly participated and complied with all the directions of the IEMs. It had submitted all the supporting documents both to the IEMs and to the respondent OIL by responding to their queries. When the LMC of the respondent OIL which consisted of experts in the field, came to a finding that the respondent no. 3 had met the requirements of the qualification criteria for the Contract-Work in question, the petitioner has no locus to challenge such decision. When both the IEMs and the respondent OIL authorities had got satisfied about the competence of the technical collaborator, the present writ petition is entirely misconceived. A finding as regards the allegation about fraudulent nature of documents, made by the petitioner, cannot be determined in a writ proceeding as it requires determination of many a disputed questions of fact which can only be possible in a full-fledged trial. Even if the Court expresses any doubt regarding the genuinity of the documents vis-à-vis the prayers pressed on behalf of the petitioner, then the petitioner should be relegated to a civil court of competent jurisdiction for a full-fledged trial since such questions cannot be decided on the basis of affidavits, when there is necessity to lead both oral and documentary evidence. In such view of the matter, the present writ petition is not maintainable and the same is liable to be dismissed.
12.2. As regards the other issues, Mr. Das has submitted in similar lines as like the learned Senior Counsel for the respondent OIL. Since similar submissions are made, the same are not reiterated herein for the sake of brevity. In support of his submissions, he has also referred to the oft-cited decision of the Hon'ble Supreme Court of India in Ramana Dayaram Shetty vs. International Airport Authority of India and others, reported in [1979] 3 SCC 489.
13. I have duly considered the rival submissions advanced by the learned counsel for the parties and have also perused the materials brought on record by the parties through their respective pleadings, Page No. 14/32 besides going through the bid document of E-Tender no. CDG5746P18.
14. The E-Tender no. CDG5746P18 was floated to hire the services of 4 [four] nos. of Surface Production Facility Packages for OIL's operational areas in Assam and Arunachal Pradesh for a period of 3 [three] years with a provision to enter into a framework agreement at an estimated cost of ₹ 75.14 crores. It was an international competitive bidding process under single stage two-bid system and the E-Tender was published in prominent National dailies, the website of the OIL and the tender portal of the Government. The initial bid closing date was 13.10.2017. Subsequently, due to certain amendments in the clauses contained in the Bid Document, the bid closing date was re-scheduled to 24.10.2017, 31.10.2017, 14.11.2017 and finally extended to 21.11.2017. On or before the extended bid closing date i.e. 21.11.2017, 9 [nine] nos. of bidders submitted their bids and their techno-commercial bids were opened online on 21.11.2017. After evaluation of the techno-commercial bids, the bids of 7 [seven] nos. of participating bidders were found responsive and accordingly, it was decided to open the price bids of those 7 [seven] nos. of bidders. The price bids were opened on 11.01.2018. The names of those 7 [seven] bidders along with their quoted price bids were as under :
Sr. no. Name of the bidder Bid Value [In INR]
1 M/s B Vishal Oil & Energy Limited, Gujarat ₹ 49,20,58,409.89
2 M/s Jaybee Energy Private Limited, Guwahati ₹ 56,10,60,051.60
3 M/s Techno Canada Inc., Canada ₹ 78,51,55,303.00
4 M/s Expro North Sea Limited, Mumbai ₹ 78,63,11,557.57
5 M/s Assam Petroleum Limited, Guwahati ₹ 78,85,97,304.00
6 M/s Halliburton Offshore Services Inc., Mumbai ₹ 102,56,89,004.60
7 M/s Almansoori Petroleum Services LLC, UAE ₹ 109,78,22,428.20
15. The cost details as well as its price reasonableness of the L-1 bidder i.e. the respondent no. 3 were analyzed by the tendering authority. The total cost offered by the respondent no. 3 through its bid was found 44.39% lower than that of I.E. and accordingly, a proposal was placed to award the Contract-Work to the respondent no. 3 which was approved by the approving authority. The LoA for the Contract-Work was issued thereafter, on 27.01.2018.
16. Section-II of the Bid Document provided for the Terms of Reference / Scope of Work. Clause Page No. 15/32 3.0 thereof had provided for the Definition of Work. For ready reference, Clause 3.0 is quoted hereinbelow :-
"3.0 Definition of Work : The contractor is to provide Equipments as per the list given in Appendix-I with associated equipment / tools & services on hiring as mentioned in clause 1.0 of this section or till the completion / abandonment of last well at the same rates, terms and conditions. The equipment provided by the contractor will be utilized as production facility operations in vertical wells, high angle deviated wells [S-bend, J- bend, extended reach, horizontal]. Well depths are in the depth of 2000 - 6000 metres. Maximum working pressure will be of 10,000 PSI and bottom hole temperature ranges between 70 to 125o C. 3.1 OIL intends to hire the surface production facility service package to carry out surface production operation in few exploratory and remotely located wells [Minimum 30 nos.] under its operational areas in Assam and Arunachal Pradesh. 3.2 Subsequent to completion of initial surface production testing and establishment of commercially viable hydrocarbon in a particular well, the surface production facility service will be utilized for continuous engagement in that particular well itself to be utilized as Well Head Set up [WHS] for regular production on rental basis. 3.3 In the event of utilizing the supplied surface production facility service package as a regular production setup, the provision for handling / producing 4-5 cluster wells shall be made available by the contractor. Accordingly, provision of multipoint [4-5 points] production header [manifold] shall require to be made available by the contractor as and when advised by OIL.
3.4 The well be handed over to the contractor for carrying out surface production services and for regular production after initial completion and activation. 3.5 The Scope of Services under this Contract is broadly as :
[i] Initial surface production testing of the newly completed drilling wells. [Well completion, activation, etc. shall be done by the company [OIL]. [ii] Surface Production and data gathering of producing gas / oil wells. [iii] Regular production as a surface production facility [round the clock] in shift basis. [iv] To build facility set up for flaring of produced gas. The company will provide requisite land, ROW / ROU and pipings for setting up flare pit at a distance of Page No. 16/32 about 90 metrs away from the well head plinth.
[v] Measure and record continuously produced fluid flow rates, surface pressure [FTHP, CHP and AP] and temperature of the produced fluid at the wellheads & test separators in order to keep the well in good health and producing condition. [vi] Regular collection of well head sample, gas sample for the necessary analysis. The bidder shall test basic sample analysis [oil water content, salinity, Gas SM, pH...] in its own well site laboratory. Detailed Gas sample analysis, Bottom-hole Pressure- Temperature, PVT sampling & analysis will be carried out by OIL. [vii] To build facility set up for loading of produced liquid / fluid to 12kl / 20kl capacity OIL's hired tankers for transportation to Company Designated Location. [viii] Custody transfer / transportation of crude oil through OIL's tankers from respective well sites to Company Designated Location shall be OIL's responsibility. [ix] The Contractor shall have to supply and use their own tools & equipment / facilities etc. as given in Appendix-I to undertake the above service. [x] The Contractor shall have to provide their competent / skilled manpower [personnel] as given in Appendix-II on call out basis to undertake the above services.
[xi] The Contractor shall have to arrange for fooding, lodging and transportation service for their personnel as well as provisioning of materials / operational consumables including Petroleum Oil & Lubricants etc. for smooth functioning of the Production Facility. OIL will provide chemicals viz. Glycol, Methanol, De- Emulsifier, Flow improver etc. as and when required.
[xii] The deliverables of the Surface Production Facility are broadly but not limited to :
[a] Surface Flow rate data acquisition. [Reservoir pressure & temperature survey and analysis will be carried out by OIL].
[b] Daily [on hourly basis] Oil & Gas production rate, bean size, flowing tubing head pressure, Shut-in tubing head pressure [if well is kept shut], flowing tubing head temperature, oil water content, pH, Salinity, SG of gas. The contractor shall collect Representative reservoir fluid at surface. Fluid sample analysis - Compositional analysis and PVT analysis [Will be carried out by OIL].
[c] Final Report on Surface Production Data preparation & submission. [xiii] While operating the Surface Production Facility by the successful bidder, the Page No. 17/32 company [OIL] shall have the adequate monitoring, supervision and control over the overall operation including transportation of crude oil. [xiv] Strict compliance with statutory regulations like Mines and related acts/legislation, IBR, OMR, OISD norms and Pollution Control Board [State / Central] etc. are to be complied by the successful bidder.
[xv] After completion of production operation in a particular well, the advice for inter-
location movement [ILM] of production testing unit and Contractor's personnel to other well sites shall be given by the Company. However, due to some unforeseen circumstances, in case, the next well is not ready for production operations and preceding well [i.e. where initial production testing was carried out] was also not viable as mentioned in clause no. 11.0 of Part-3 Section-III, till the next well is ready for Production Operation. Such advice will be issued by the Company and shall be applicable during the contractual period.
[xvi] Any other jobs relating to production facility services but not covered herein shall be carried out by the contractor at no additional cost to the company. [xvii] The quantum of job may vary depending upon drilling activities to be taken up by the Company during the course of the contract and needs to be attended by the Contractor. The Contractor following mobilization of crew and equipment, will be required to provide the intended service as desired by the company as and when required basis in line with the contractual terms.
[xviii] The Contractor's entire fleet of equipment must meet the safety requirement and duty condition of safe, trouble free and uninterrupted operation as per sound industry practices. The contractor shall undertake operation and maintenance [O&M] of the equipment's forthwith after supply of the equipment and shall be responsible for arranging all resources including competent manpower as per requirements of Indian Mines Act, its bye-laws & other legislations in force and all resources / facilities for continuous 24 [twenty four] hours operations on shift basis, routine & scheduled maintenance including running repairs and provisioning of relevant spares and consumables in relation thereto."
17. The basic requirement of Article 14 of the Constitution of India is fairness in action by the State or an agency/instrumentality of the State. A question whether the impugned action is arbitrary or not is to be answered on the facts and circumstances of a given case. A bidder participating in a competitive Page No. 18/32 bidding process is entitled to a fair, equal and non-discriminatory treatment in the matter of evaluation of its tender or award of tender. Article 14 of the Constitution of India has laid down that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Thus, the protection under Article 14 of the Constitution of India is available to any person and this is not limited only to a citizen of India. On the issue of maintainability of a writ petition under Article 226 of the Constitution of India at the instance of a foreign company is no longer res integra in view of a Division Bench judgment of this Court in Oil India Limited & others vs. Drillmec S.P.A. & others, reported in 2014 [5] GLT 296. It has been held therein that a company, a jursidic person, whether Indian or foreign, can maintain a legal action based on Article 14 of the Constitution of India alone and as such, the issue does not require any further dilation. Moreover, the E-Tender itself disclosed that it was an international competitive bidding process allowing participation of foreign/overseas bidders. Clause 16.0 of the Bid Document had laid down the stipulations for submission of bid by foreign/overseas bidders. When the process itself was an international competitive bidding process allowing participation of foreign/overseas bidders, a foreign/overseas bidder can definitely maintain a legal action alleging infringement on the touchstone of Article 14 of the Constitution of India in relation to matters like evaluation of bids or award of the Contract-Work, etc.
18. The present writ petition has been preferred by the petitioner company, a company incorporated under the laws of Canada, through one Sri Roopendra Narayan Chakravorty. It is stated in the affidavit accompanying the writ petition that the deponent, Sri Roopendra Narayan Chakraborty is an authorized representative of the petitioner company. In support of the said fact, the petitioner has annexed a copy of a Board resolution dated 18.08.2020, passed in a meeting of the Board of Directors of the petitioner company held at its registered office. It transpires from the said extract of the Board resolution that the Board of Directors resolved and inter alia authorized Sri Roopendra Nayaran Chakravorty to appear, sign, verify, declare, affirm, make, present, submit and file petitions etc. in the High Court at Allahabad. All the respondents in their respective counter affidavits have raised the issue that the present writ petition is not maintainable as the stated authorized representative of the petitioner was not authorized to file the writ petition before this Court. The petitioner through its affidavit-in-reply has brought on record an extract of another Board resolution of the petitioner company dated 03.05.2021 whereby the Board of Directors resolved and inter alia authorized two persons - Sri Roopendra Narayan Chakravorty and one Sri Anupam Purkayastha to appear, sign, verify, declare, affirm, make, present, submit and file petitions etc. in the High Court at Guwahati. On the basis of the above Page No. 19/32 materials, this Court does not deem it just and proper to non-suit the petitioner from maintaining the writ petition.
19. There is no dispute to the fact that after the LoA dated 27.01.2018, the term of the Contract- Work awarded to the respondent no. 3 vide E-Tender no. CDG5746P18 was over on 09.09.2021. It is in that view of the matter, the learned Senior Counsel for the respondents have submitted at the time of hearing that the prayer made in the writ petition regarding cancellation of the Contract-Work had become redundant and infructuous. The learned Senior Counsel for the petitioner has also submitted that in such given situation, he has not pressed the said prayer. As a result, the issues left to be considered are the other prayers, more particularly, the prayers regarding a direction to the respondent OIL to follow the Integrity Pact and the Banning Policy for disqualifying the respondent no. 3 from the future contract award processes and for setting up an enquiry in respect of delaying the process of enquiry and to inform the interim and the final decision of the IEMs to the petitioner.
20. At this juncture, a reference to the Integrity Pact and the Banning Policy may be apposite.
21. Clause 3.0 of the Bid Document had provided for Integrity Pact requiring the bidder to upload a signed Integrity Pact in the OIL's e-procurement portal along with the technical bid with the consequence of rejection of the bid in the event a signed Integrity Pact was not uploaded in the manner prescribed. A specimen copy of the Integrity Pact to be signed between the respondent OIL and the bidder/contractor was made part of the Bid Document as Annexure-V. It inter alia laid down the commitments of the bidder/contractor. Section 8 thereof required appointment of competent and credible Independent External Monitors [IEMs]. The task of the IEMs was to review independently and objectively about the compliance of the obligations by the parties. The IEMs were not subject to instructions by the representatives of the parties and they were required to perform their functions neutrally and independently, by reporting to the Chairperson of the Board of the respondent OIL [the Principal]. The IEMs had the right to access all project documentations of the Principal without any restriction. In the event the IEMs notice a violation, they require to inform the same to the Management of the Principal and may request the Management to discontinue or heal the violation or to take other relevant action. The recommendations of the IEMs are, however, non-binding and the IEMs have no right to demand from the parties that they act in a specific manner or refrain from action or tolerate action. The IEMs require to submit a written report to the Chairperson of the Board of the Principal Page No. 20/32 within 8 to 10 weeks from the date of reference or intimation to them by the Principal and can also submit proposals for correcting problematic situations. By Clause 34.2 of the Bid Document, the respondent OIL had appointed 3 [three] IEMs for a period of 3 [three] years to oversee implementation of the Integrity Pact in the OIL and the bidders were informed that they were at liberty to contact the appointed IEMs for any matter relating to the Contract-Work.
21.1. By Circular no. 02/01/2017 dated 13.01.2017, the Central Vigilance Commission [the CVC] after reviewing the then prevailing Standard Operating Procedure [SoP] for adoption of Integrity Pact, had formulated a revised Standard Operating Procedure [SoP] for adoption of Integrity Pact in Government Departments/Organizations in order to ensure transparency, equity and competitiveness in public procurement. The CVC recommended the concept of Integrity Pact for adoption and implementation by Government Organizations. The Government of India also issued guidelines, by an Office Memorandum dated 20.07.2011, requesting the Department of Public Enterprises for directions to the Central Public Sector Enterprises for use of Integrity Pact. Integrity Pact envisages an agreement between the prospective bidders/contractor and the tendering authority to refrain from resorting to any corrupt practices in any aspect/stage of a contract. Clause 4.0 of the Circular dated 13.01.2017 has laid down the rules and duties of the IEMs. The IEMs are empowered to examine all complaints received by them and to give their recommendations/views to the Chief Executive of the Organization. They may also send the report directly to the Central Vigilance Officer [CVO] and the CVC, in case of suspicion of serious irregularities requiring legal/administrative action. For ensuring the desired transparency and objectivity in dealing with the complaints arising out of any tendering process, the matter should ordinarily be examined by the full panel by the IEMs jointly by looking into the records, conducting an investigation, and submitting their joint recommendations to the Management. It has, however, been clarified in Clause 4.6 thereof that the role of the IEMs is advisory, would not be legally binding and it is restricted to resolving issues raised by an intending bidder regarding any aspect of the tender which allegedly restricts competition or bias towards some bidders. The role of the IEMs is independent in nature and the advise once tendered would not be subject to review at the request of the Organization as they are not Consultants to the Management. Clause 5.0 of the said Circular has made it specific that the IEMs appointed should be eminent personalities of high integrity and reputation and their names are required to be forwarded by the Organization to the CVC.
22. The respondent OIL has a Banning Policy dated 06.01.2017 wherein the Guidelines for Page No. 21/32 appropriate action against erring and defaulting bidders, contractors, suppliers, vendors and service providers are laid down. As per the definitions provided therein, 'fraudulent practice' includes any act or commission committed by a bidder by misrepresenting, misleading/submitting false documents and or false information or concealments of facts in order to influence the procurement process as well as during the execution of the contract and 'Contract' means all or any contract awarded to an agency including a bidder or a contractor, and includes purchase orders/works contract/service contract. Clause 4.0 has provided for Banning. Clause 4.2 thereof has inter alia envisaged action against a contractor in respect of an ongoing tender/contract where the contractor has indulged in fraudulent practice. If the contractor is found, as per Clause 4.2[ii], to have indulged in fraudulent practice, in respect of an ongoing contract, such contractor shall be put on the banning list of the OIL after following the due process. The concerned contract/order where irregularities have been committed, can be suspended forthwith and an action shall be initiated for putting the contractor in banning list. After following the due process, the order/contract where it has been concluded that the irregularities have been committed shall be terminated. The period of banning shall be 3 [three] years from the date of issuance of banning order. The procedure to be followed for banning an agency like contractor in case of fraudulent practice has been laid down in Clause 4.6 of the Banning Policy with a provision for appeal against the decision of banning in Clause 4.11.
23. The Award Criteria contained in the Bid Document mentioned that the respondent OIL would award the Contract-Work to the successful bidder whose bid had been determined to be substantially responsive and had been determined as the lowest evaluated bid, provided further that the bidder was determined to be qualified to perform the contract satisfactorily. The notes contained in the Bid Document further mentioned that the information and documents furnished by the bidder/contractor in respect of the subject-tender/contract would be accepted to be true and genuine. If it was detected during technical scrutiny or after award of the contract or after expiry of the contract that the bidder had submitted any fake/fraudulent document or furnished false statement, the offer/contract shall be rejected/cancelled, as the case may be, and the bidder [if the fake document/false statement pertained to such bidder] shall be dealt as per the Banning Policy of the respondent OIL.
24. The petitioner in this writ petition, has raised the question of eligibility of the respondent no. 3 to be awarded the Contract-Work. From the averments and the submissions advanced on behalf of the petitioner, this Court finds that the petitioner has based its case substantially on [a] a Completion Page No. 22/32 Certificate dated 03.11.2017; [b] an Work Order no. CF15128 dated 10.01.2016; [c] a newsitem published in Petrowatch, an English newspaper, in its issue dated 25.01.2018; [d] a copy of an e-mail dated 08.03.2018 received from one Mr. Alec Watson, a representative of M/s Pintail Oil & Gas LLC; [e] information with regard to well test pressures obtained from a website named Sonris; [f] business profiles of the 2 [two] companies - M/s 3 & 1 Enterprises Inc & M/s 3 & 1 Enterprises T&R Inc, stated to have been obtained from the records available in the public domain in the State of Louisiana, USA; and [g] photographs allegedly of the office of M/s 3 & 1 Enterprises T&R Inc.
25. With regard to the Work Order no. CF15128 dated 10.01.2016 is concerned, it mentioned that the Work Order was between M/s Pintail Oil & Gas LLC and M/s 3 & 1 Enterprises T&R Inc. pursuant to a Master Services Agreement dated 14.10.2015 between the two. The services to be provided under the Work Order was Surface Production Well Testing in Type of Well : Oil & Gas with Bottom Hole Pressures : 15,000 to 20,000 PSI. The Work Order was allegedly signed by Mr. Robert Perkins, Field Supervisor on behalf of M/s Pintail Oil & Gas LLC. The Completion Certificate dated 03.11.2017 was also signed by Mr. Robert Perkins for M/s Pintail Oil & Gas LLC. But in the Completion Certificate, it was certified that M/s 3 & 1 Enterprises had successfully completed 6 [six] well test with pressures over 10,000 PSI and the wells completed were SL12239/001, WOOD 10H/001, MD 33/011-ALT, AKS PROP/001, FM 6/001 & OWENS/001.
25.1. Raising doubt on the afore-mentioned two documents, the petitioner company had filed the complaint before the Chairman and Managing Director, OIL on 08.03.2018. The said complaint was, in turn, forwarded to the IEMs for consideration. The first meeting of the IEMs was held on 12.04.2018 wherein the representatives of both the petitioner and the respondent no. 3 along with the officials of the respondent OIL were present. From the Minutes of the IEMs meeting held on 12.04.2018, it transpires that the respondent OIL sought confirmation/clarification from M/s Pintail Oil & Gas LLC by a number of e-mails and in response, Mr. Robert Perkins of M/s Pintail Oil & Gas LLC responded vide an e-mail dated 17.03.2018 stating that the Completion Certificate related to the Work Order and both the names signified the same party - M/s 3 & 1 Enterprises T&R Inc. In the said meeting, the representative of the petitioner reiterated the allegations mentioned in this writ petition, which are already narrated above. The representative of the respondent no. 3 then sought time to clarify about the genuineness of the documents. The IEMs observed that the respondent OIL appeared to have relied on the claims and documents submitted by the respondent no. 3 in respect of the technical collaborator of Page No. 23/32 the respondent no. 3 without any independent due diligence from its end resulting in the complaint. The respondent OIL was asked to satisfy itself about the genuineness of the documents submitted by the respondent no. 3 and as to whether the technical collaborator of the respondent no. 3 was technically competent as per the bid evaluation criteria. As the respondent no. 3 had assured the IEMs during the hearing that it would submit all the supporting documents and evidence to prove the authenticity of their technical collaborator, the respondent OIL was asked to scrutinize the evidence to be so submitted and to share the same with the IEMs so that they could decide if they needed to meet again to evaluate the response of the respondent no. 3.
25.2. After the IEMs meeting held on 12.04.2018, the respondent OIL asked the respondent no. 3 by its letter dated 16.04.2018 to submit documents in relation to company profile, details of Board of Directors, Balance Sheet and P&L Statement, working experience, etc. of M/s Pintail Oil & Gas LLC and M/s 3 & 1 Enterprises T&R Inc. and details of orders/contracts executed by them and also to submit documents in support of the fact that M/s 3 & 1 Enterprises T&R Inc and M/s 3 & 1 Enterprises Inc were one and the same company.
25.3. It was on 02.05.2018, the respondent no. 3 submitted the following documents to the respondent OIL: [1] Copy of the Articles of Incorporation and initial report of M/s 3&1 Enterprises Inc, U.S.A. dated 06.12.2007; [2] Copy of the Articles of Incorporation and initial report of M/s 3&1 Enterprises T&R Inc, U.S.A. dated 14.11.2011; [3] Copy of the Tax Return information along with the profit and loss accounts and balance sheets of the years - 2014, 2015 and 2016 of M/s 3&1 Enterprises T&R Inc; [4] Copies of the Certificate of Insurance effected with Underwriters at Lloyd's London for the period from 2014 to 2015; [5] Copies of some of the Bank receipts showing deposit of Cheques received from M/s Pintail Oil & Gas LLC by M/s 3&1 Enterprises T&R Inc; [6] Copy of the Master Services Agreement dated 26.06.2012 by and between M/s 3&1 Enterprises T&R Inc and M/s Enerfin Resources Company and a work completion certificate dated 12.03.2014 issued by M/s Enerfin Resources Company; [7] Copy of a letter dated 30.04.2018 issued by Petromax Operating Company Inc; and [8] Copy of a letter of M/s Pintail Oil & Gas LLC in favour of M/s Oil India Ltd. The afore- mentioned 8 [eight] documents are found annexed at Page nos. 38 to 94 of the affidavit-in-opposition of the respondent nos. 1 & 2. Basing its claim on those documents, the respondent no. 3 claimed that M/s 3 & 1 Enterprises T&R Inc and M/s 3 & 1 Enterprises Inc are one and the same and their Directors are same. The copy of the letter dated 25.04.2018 of M/s Pintail Oil & Gas LLC under the signature of Page No. 24/32 Mr. Robert Perkins and addressed to the respondent OIL stated that the Master Services Agreement dated 14.10.2015; the Work Order no. CF15128 dated 01.10.2016; and the Completion Certificate dated 03.11.2017 were true and authentic documents but due to confidentiality reasons, the company was unable to provide those documents.
25.4. It transpires that after reviewing those documents furnished by the respondent no. 3, the IEMs vide their e-mail dated 07.05.2018 commented that the matter required further discussion amongst the IEMs to reach a fair conclusion about their adequacy and genuineness. A meeting of the LMC was thereafter held on 09.05.2018 wherein after discussion, a decision was arrived at to the effect that the offer of the respondent no. 3 was found to be technically acceptable as per the compliance of the documents submitted by the respondent no. 3 towards experience of its technical collaborator. The LMC was of the view that the respondent no. 3 was technically qualified in the tender process and was awarded the Contract-Work as per the terms and conditions of the tender. The decision of the LMC was forwarded to the IEMs vide an e-mail dated 28.05.2018. By a response e-mail, the IEMs suggested for another round of discussion with the petitioner and the respondent no. 3.
25.5. A meeting of the IEMs was held on 31.05.2018. In the said meeting, the IEMs heard all the parties. As per the Minutes of the IEMs meeting, the respondent OIL was advised to seek confirmation on the authenticity of the claim made by the respondent no. 3 either through the Indian Consulate in Houston, USA or through the respondent OIL's office located in Houston, USA.
25.6. All the afore-mentioned documents, submitted by the respondent no. 3, were thereafter forwarded by the respondent OIL to its Country Office in the USA by a letter dated 12.07.2018. One Mr. Austin W. Brister on behalf of the respondent OIL contacted Mr. Alec Watson, the lawyer of M/s Pintail Oil & Gas LLC by writing an e-mail. In response, Mr. Alec Watson informed Mr. Brister over phone to tell that though Mr. Robert Perkins was employed by M/s Pintail Oil & Gas LLC but Mr. Perkins did not have any authority to issue any certificate on behalf of M/s Pintail Oil & Gas LLC as he was not given any specific authority to issue such Completion Certificate. Mr. Brister further wrote that when he requested Mr. Watson to write a letter on the issue, Mr. Watson expressed his disinclination.
25.7. The respondent OIL having been informed about the status of Mr. Robert Perkins and having received a clarification from M/s Pintail Oil & Gas LLC that the issuance of the Completion Certificate Page No. 25/32 was not authorized, asked the respondent no. 3 by its letter dated 06.11.2018 to explain/clarify the anomalies/discrepancies with documentary evidence so as to enable OIL to take further action. In reply, the respondent no. 3 submitted its clarifications in writing on 12.12.2018. The respondent no. 3 also forwarded an employment letter dated 12.04.2015 of Mr. Robert Perkins along with another document dated 16.02.2015 indicating his job responsibilities to claim that Mr. Perkins was overall In-charge of the field and was authorized to review and approve on the work awarded to the contractor and was authorized to sign required documents relating to the work. The above documents along with few other documents furnished by the respondent no. 3 to support its claim, are found annexed to the affidavit-in- opposition of the respondent nos. 1 & 2.
25.8. After receipt of all the above documents from the respondent no. 3, a meeting of the LMC was held on 27.12.2018 to discuss on the same and as per the Minutes of the LMC meeting held on 27.12.2018, placed before the Court, the LMC after detailed deliberations noted that the response of the respondent no. 3 met the tender requirements. It was further decided to forward the queries and e-mail responses received from its office at Houston and the queries and e-mail responses submitted by the respondent no. 3 to the IEMs for their opinion. Pursuant to the said decision of the LMC, all those papers were forwarded from the end of the respondent OIL to the IEMs by an e-mail dated 08.02.2019. It was in pursuance of forwarding of the documents by the LMC on 08.02.2019, the IEMs discussed the issue and arrived at a decision not to hold any further meeting on the matter of the tender awarded to the respondent no. 3 as the respondent OIL was found to have acted on the advice of the IEMs during the hearing. The said decision was communicated to the respondent OIL from the end of the IEMs on 08.03.2019.
25.9. When an e-mail was sent from the petitioner's side to the respondent OIL on 16.01.2020 stating that the petitioner had not heard from the respondent OIL regarding the decision of the IEMs in the matter, the respondent OIL forwarded the decision of the IEMs, taken on 08.03.2019, to the petitioner by an e-mail dated 28.01.2020.
25.10. A perusal of the newsitem appearing in Petrowatch on 25.01.2018, a copy of which has been annexed to the writ petition, goes to show that the newsitem stated that the respondent no. 3 stood accused of submitting forged documents in a tender process of the OIL which the respondent no. 3 had strongly denied. Mentioning the respondent no. 3 as a newcomer in the oil testing business, it was Page No. 26/32 reported that the respondent no. 3 had submitted its bid in the Contract-Work with M/s 3 & 1 Enterprises T&R Inc as its technical partner. The newsitem further mentioned that a source had alleged that the Completion Certificate provided by M/s 3 & 1 Enterprises T&R Inc from M/s Pintail Oil & Gas LLC as evidence of experience was forged. It was reported to be heard that the certificate submitted by the respondent no. 3 was in the name of 'M/s 3 & 1 Enterprises' and not from 'M/s 3 & 1 Enterprises T&R Inc'. According to Petrowatch, the company named M/s 3 & 1 Enterprises Inc was classed as 'Inactive' because of voluntary action. The newsitem further mentioned that as per the records of the State of Louisiana, the company - M/s 3 & 1 Enterprises T&R Inc was also not in good standing. On a close perusal of the newsitem in Petrowatch, it is noticed that the contents of the newsitem regarding the allegation of forged documents submitted by the respondent no. 3 were based on sources and hearsay. A newsitem without any further proof is at best a second-hand secondary evidence. The photographs, annexed at Page no. 329 of the writ petition, allegedly of the office of M/s 3 & 1 Enterprises T&R Inc, are sourced from Google Maps. The evidentiary value of those photographs are also required to be authenticated. Since those are in the nature of hearsay secondary evidence, judicial notice of the facts stated in such newsitem cannot be taken automatically unless proved by evidence aliunde. In view of such proposition of law, the contents of the newsitem in Petrowatch, relied on behalf of the petitioner, cannot be presumed and accepted to reach any final opinion by this Court on the allegation about forged/fraudulent nature of the documents placed by the respondent no. 3 in the bidding process initiated by the E-Tender. Similarly placed is the case in respect of the photographs.
25.11. The petitioner has stated to have obtained information to the effect that as per the business profile of M/s 3 & 1 Enterprises T&R Inc, it was a small organization in the business of consulting services having two employees and an estimated annual revenue of ₹ 76,000. On close perusal of the documents wherein such information had appeared, annexed at page nos. 323 to 328 of the case papers, the same appears to have been sourced from FindTheCompany by GRAPHIQ. It cannot be ascertained conclusively that the source for such information was the public records maintained by the State of Louisiana, USA. The petitioner has further stated to have obtained the profiles of the two companies viz. M/s 3 & 1 Enterprises & M/s 3 & 1 Enterprises T&R Inc, annexed at page nos. 315 to 322 of the case papers, from the public records maintained by the State of Louisiana, USA. On a reading, it goes to indicate that the status of M/s 3 & 1 Enterprises Inc was inactive due to voluntary action with an affidavit to dissolve, filed on 29.05.2014, and the status of M/s 3 & 1 Enterprises T&R Inc was active Page No. 27/32 but as per the annual report status, it was not in good standing for failure to file annual report. The domicile addresses of both the companies were shown as '1212 HWY 12 East, Dequincy, LA 70633' and '1212 HIGWAY 12, Dequincy, LA 70633' respectively. But what also mentioned in page no. 319 is that it is not the primary source and the company registry should always be referred to for definitive information. Thus, it cannot be said with certainty that the information presented by the petitioner with the support of those two documents are conclusive in nature.
26. From the table, referred to in paragraph 15 above, it is noticed that the bid value offered by the respondent no. 3 for the Contract-Work at ₹ 49,20,50,409.89 was the lowest whereas the bid value offered by the petitioner for the Contract-Work at ₹ 78,51,55,303.00 was the 3 rd lowest. Thus, the difference between the bid values offered by the respondent no. 3 and the petitioner was ₹ 29,31,04,893.11. One of the factors which can be looked into in a challenge made in respect of a competitive bidding process and the award made to a participating bidder after evaluation of the bids of the bidders is the price at which the contract is awarded to the successful bidder by the tendering authority. In respect of award of a contract work by the State or an instrumentality/agency of the State the price at which the contract work is awarded is a relevant factor as the cost is to be borne out of the State exchequer. In the case in hand, the Contract-Work was awarded by the respondent IOC to the respondent no. 3, who had emerged as the lowest [L-1] bidder. It can be iterated, at the cost of repetition, that the Award Criteria mentioned that the OIL would award the Contract-Work to the successful bidder whose bid had been determined to be substantially responsive and had been determined as the lowest evaluated bid [L-1]. It was also mentioned in the Bid Document that the information and documents furnished by the bidder/contractor in respect of the Contract-Work would be accepted to be true and genuine. It is not in dispute that the LoA for the Contract-Work in favour of the respondent no. 3 was issued on 27.01.2018 and the petitioner lodged the complaint alleging submission of forged/fabricated document by the respondent no. 3 with its bid at a later point of time on 08.03.2018. The tendering authority had made its decision to award the Contract-Work on the basis of the documents submitted by the respondent no. 3 relating to its technical collaborator. At the time of evaluation of the bids there was no allegation of commission of fraudulent practice from the petitioner and there was no allegation of fake/fabricated documents against the respondent no. 3. In such given facts and circumstances, it cannot be said that the decision-making process leading to the award of the Contract-Work in favour of the respondent no. 3 became vitiated.
Page No. 28/3227. It is also one of the contentions of the petitioner that it was prevented from approaching the Court due to unjust delay of 538 days on the part of the respondents in communicating the decisions of the IEMs. The writ petition was filed on 09.12.2020. As per the statement of the petitioner, it received the final decision of the IEMs dated 06.03.2019 on 28.01.2020. There is no explanation as to what prevented the petitioner from approaching the Court during the period from 28.01.2020 till 09.12.2020. The representative of the petitioner took part in the proceedings before the IEMs on 12.04.2018 and 31.05.2018. As it is seen from the above, the body of IEMs is a neutral and independent body and it is not made a party-respondent in the present petition. Though the petitioner has contended that it wrote to the respondent OIL on several occasions thereafter to know the outcome of the complaint but no details about any such communication in writing have been mentioned in its pleadings. The contention from the respondent OIL's side is that it was only on 16.01.2020 the petitioner by an e-mail asked the respondent OIL about the outcome of the proceedings before the IEMs and as such, it was the petitioner who was sleeping on the matter. The further contention is that immediately after receipt of the e-mail dated 16.01.2020, the final decision of the IEMs, taken on 16.03.2019, was communicated to the petitioner on 28.01.2020. The issue whether the final decision of the IEMs was communicated to the petitioner by the IEMs directly or not cannot be ascertained as the body of IEMs has not been impleaded as the party-respondent in the present writ petition. But the allegation regarding delay made by the petitioner, attributing entire blame to the respondents, cannot be accepted as wholly true in the obtaining fact situation of the case, where there was considerable and inexplicable delay on the part of the petitioner also as it stayed inert and indolent for the period from 28.01.2020 till 09.12.2020.
28. Upon perusal of the Bid Document and the other documents available on record, it can be realistically figured out from the definition and scope of the Contract-Work that the equipments sought to be utilized for the Contract-Work were with advanced technology and the services required to be offered under the Contract-Work needed domain expertise. The tendering authority who had authored the tender document by setting out the terms and conditions therein, was in the best position to know its requirements. The evaluation of the tender documents submitted by the participating bidders, were undertaken by a tender evaluation committee consisting of experts having the domain knowledge and experience in the oil and gas sector. It is such committee of experts who had evaluated the tender documents submitted by the participating bidders including that of the petitioner and the respondent no. 3 and after a process of verification and evaluation, the committee recommended for acceptance of the bid of the respondent no. 3 which was ultimately accepted by the tendering authority. After the Page No. 29/32 complaint was lodged by the petitioner raising a question mark over the eligibility of the respondent no. 3 on the ground of submission of forged/fabricated documents with regard to the credentials of its technical collaborator, it is seen that the authorities in the respondent OIL had undertaken an exercise to verify the authenticity of the documents submitted by the respondent no. 3 relating to its technical collaborator for the Contract-Work by calling for information from different sources and by seeking assistance from its office located in Houstone, USA and after going through the information and documents received during such exercise, the body called the LMC consisting of officials of the respondent OIL, had reached a conclusion that the respondent no. 3 had met the requirements for the Contract-Work. The body of IEMs consisted of eminent personalities of high integrity and reputation and their role was neutral and independent. In the case in hand, the body of IEMs after going through the materials placed before them by the parties and called for by them, had got themselves satisfied on the matter and refrained from making any adverse report in connection with the complaint lodged by the petitioner regarding doubtful nature of the documents submitted by the respondent no. 3 at the time of submission of its bid.
29. In Silpi Constructions Contractors [supra] and M/s Galaxy Transport Agencies [supra], the Hon'ble Supreme Court of India has surveyed a number of earlier decisions rendered by the Court in tender jurisdiction relating to evaluation of tenders or award of contracts. It has been observed herein if the State or its instrumentality/agency has acted reasonably, fairly and in public interest in awarding contract, the interference of the Court in such matters should be minimal. The High Court's jurisdiction in such matters being limited, the Court should normally exercise judicial restraint unless illegality or arbitrariness on the part of the tendering authority is apparent on the face of the record. Since evaluation of tenders and award of contract are essentially commercial functions, the principles of equity and natural justice are to be kept at a distance and if the decision relating to award of contract is bona fide and is in public interest, the Court 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. It has also been observed that where a decision is taken manifestly in consonance with the language of the tender document or subserves the purpose of which the tender is quoted, the court has to follow the principle of restraint. It has been observed therein, after surveying the decisions, that the essence of the law 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 Page No. 30/32 like a court of appeal over the appropriate authority; the court must realize 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 tender, and has authored the tender documents is the best judge as to how the tender documents have to be interpreted. If two interpretations is possible then the interpretation of the author must be accepted. The court will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity.
30. From the discussion made above, it has emerged that the contentious issues hover around three entities - M/s 3 & 1 Enterprises Inc, M/s 3 & 1 Enterprises T&R Inc and M/s Pintail Oil & Gas LLC and the persons named Mr. Robert Perkins, Mr. Alec Watson, etc., who were allegedly associate with these entities. All the afore-stated three entities are companies not incorporated in India and are stated to be foreign companies. Similarly, the persons, named above, associated with these companies are not citizens of India and are foreign citizens. The Work Order no. CF-15128 dated 10.01.2016 and the Completion Certificate dated 03.11.2017 were issued by Mr. Robert Perkins as an authorized signatory of M/s Pintail Oil & Gas LLC, located in the USA. Mr. Alec Watson who is stated to be a representative of M/s Pintail Oil & Gas LLC had claimed that Mr. Robert Perkins was not authorized to issue such work order and completion certificate on behalf of M/s Pintail Oil & Gas LLC. It was, however, not said in specific terms M/s Pintail Oil & Gas LLC did not award a contract for 6 [six] nos. of well test pressures. Documents were made available by the respondent no. 3 to the respondent OIL and the IEMs to claim that the Work Order no. CF-15128 dated 10.01.2016 and the Completion Certificate dated 03.11.2017 issued by Mr. Robert Perkins were true and genuine. When the respondent OIL made enquiry through its representative named Mr. Austin W. Brister, based in the USA from Mr. Alec Watson, who appears to be a lawyer of M/s Pintail Oil & Gas LLC informed that Mr. Robert Perkins was employed by M/s Pintail Oil & Gas LLC but Mr. Robert Perkins did not have any authority to issue such completion certificate. At the same time, Mr. Brister did not show his inclination to give the same information in writing nor he disclosed who had the authority to issue the same. There appeared to be money transactions between M/s Pintail Oil & Gas LLC and M/s 3 & 1 Enterprises Inc. Whether the two foreign entities - M/s 3 & 1 Enterprises Inc and M/s 3 & 1 Enterprises T&R Inc can be considered as one or not cannot be determined on the basis of the documents on record and whether the details furnished in relation to the work with regard to 6 [six] wells : SL12239/001, WOOD 10H/001, MD 33/011-ALT, AKS PROP/001, FM 6/001 & OWENS/001 with test pressures over 10,000 PSI in Beauregard and Calcasieu Parishes were correct or false are questions that require determination Page No. 31/32 on the basis of cogent and reliable evidence and there is necessity to examine the claimants and other witnesses who have made these claims and counter claims. Having considered the matter in its entirety, this Court has found that apart from the above disputed facts, many other disputed questions are involved in the case in hand and some of these questions are of complex nature. The core issue is whether the respondent no. 3 had practiced fraud by submitting false/fabricated documents in order to be awarded the Contract-Work and to establish a case of fraud committed through false/fabricated documents, one may have to lead cogent and reliable - oral and or documentary - evidence and the person against whom such allegations are made, is also to be afforded all the opportunities to rebut such allegations and the same is only possible in a trial. The materials placed on record by the petitioner are found not sufficient to arrive at any definite findings regarding commission of fraudulent practice on the basis of any false/fabricated documents.
31. It has been settled by a long line of decisions that the jurisdiction of the High Court under Article 226 of the Constitution of India is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary and it is not to be exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will be exercised subject to certain self- imposed limitations. It is also settled that the High Court is not deprived of its jurisdiction to entertain a writ petition under Article 226 of the Constitution merely because in order to consider the right of the petitioner to be granted the relief sought for questions of facts fall to be determined. In a writ petition under Article 226 of the Constitution, the High Court has jurisdiction to try issues both of fact and law. In the process, the Court has to consider as to what facts are in dispute and what facts are not in dispute and such a state comes after the exchange of pleadings in the form of affidavits amongst the parties is complete. A writ petition is ordinarily decided on the basis of affidavits. A lis arising out of contractual matter is also not beyond the purview of the judicial review though such purview is limited and the discretionary writ jurisdiction in such matters is to be exercised on sound judicial principles. When in a writ petition raises disputed questions of fact of serious and complex nature requiring appreciation of evidence, both oral and documentary, and for determination of such serious and complex questions of fact, examination of witnesses would be necessary then it may not be convenient to decide such disputes in a proceeding under Article 226 of the Constitution and then in such a case, the Court may decline to try a writ petition. Though no authority is required to be cited for such settled proposition of law, the decision of the Hon'ble Supreme Court of India in Gunwant Kaur vs. Municipal Committee, Page No. 32/32 Bhatinda, reported in [1969] 3 SCC 769; Noble Resources Ltd. vs. State of Orissa and another, reported in [2006] 10 SCC 236; and State of Kerala and others vs. M.K. Jose, reported in [2015] 9 SCC 433 can be referred to as reference. It is also settled, as has been observed by a Constitution Bench of the Hon'ble Supreme Court of India in Thansingh Nathmal vs. The Superintendent of Taxes, Dhubri and others, reported in AIR 1964 SC 1419, that the High Court in its jurisdiction under Article 226 of the Constitution does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The present one is such a case which would require determination of several serious and complex disputed questions of facts through both oral and documentary evidence with examination of witnesses from the parties in a full fledged trial and the present writ petition is found to be not the proper and appropriate proceedings.
32. Having regard to the scope and ambit of the power of judicial review in a case involving serious and complex disputed questions of facts and the discussion made above with regard to the facts and circumstances obtaining in the case, this Court is of the considered view that the reliefs sought for by the petitioner in this writ petition, as mentioned above, are found not merited. As a corollary, the writ petition is liable to be dismissed and it is accordingly, dismissed. There shall, however, be no order as to cost.
JUDGE Comparing Assistant