Gujarat High Court
Samvit Buildcare Private Limited vs Ministry Of Civil Aviation on 12 March, 2018
Bench: M.R. Shah, A.Y. Kogje
C/SCA/1094/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1094 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 1262 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/
and
HONOURABLE MR.JUSTICE A.Y. KOGJE sd/
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1 Whether Reporters of Local Papers may be allowed to see NO
the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any
order made thereunder ?
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SAMVIT BUILDCARE PRIVATE LIMITED
Versus
MINISTRY OF CIVIL AVIATION
=============================================
Appearance:
MR. P.R.NANAVATI, ADVOCATE WITH HARSH V GAJJAR(7828) for the
PETITIONER(s) No. 1
MR. SHALIN MEHTA, SENIOR ADVOCATE WITH MR. BHADRISH S
RAJU(6676) WITH MR. DHANESH R PATEL, ADVOCATE for the
RESPONDENT(s) No. 2 & 3
NOTICE NOT RECD BACK(3) for the RESPONDENT(s) No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2,3
SERVED BY RPAD (N)(6) for the RESPONDENT(s) No. 1
UNSERVED WANT OF TIM(31) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 12/03/2018
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. As common question of law and facts arise in both Page 1 of 51 C/SCA/1094/2018 JUDGMENT these petition, they are heard, decided and disposed of together by this common judgment and order.
2.0. By way of Special Civil Application No. 1094 of 2018 Samvit Buildcare Private Limited has prayed for an appropriate writ, direction and order to quash and set aside the the impugned E Tender No.2017_AAI_5610 issued by the Airport Authority of India for the work of "Mechanised Environmental Support Services (MESS) UP Keeping of Terminal 1 and Inter Terminal Link" at SVPI Airport, Ahmedabad.
2.1. By way of Special Civil Application No.1262 of 2018 the very petitioner has prayed for an appropriate writ, direction and order to quash and set aside the the impugned E Tender No.2017_AAI_5175 issued by the Airport Authority of India for the work of "Mechanised Environmental Support Services (MESS) UP Keeping of Terminal 2 and Inter Terminal Link" at SVPI Airport, Ahmedabad. The petitioner has also prayed for an appropriate writ, direction and order directing the respondent to accept and consider the bid submitted by the petitioner in hardcopy format and process the same in accordance with law.
3.0. For the sake of convenience, the facts of Special Civil Application No.1094 of 2018 have been narrated and considered.
3.1. That the respondent no.2 herein Airport Authority of India invited the Rate E Tender for work of "Mechanised Environmental Support Services (MESS) UP Keeping of Terminal 1 and Inter Terminal Link" at SVPI Airport, Ahmedabad at an estimated cost of Page 2 of 51 C/SCA/1094/2018 JUDGMENT Rs.12,03,92,407/ (including GST excluding PF, ESI and Bonus) with completion period of three years. That the tender fee was to be paid upto 17:00 hrs on 19.01.2018. The last date of submission of ebid through portal was upto 17:00 hrs on 19.01.2018. That along with the tender, bidder was required to deposit EMD of the value Rs.8,02,616/. That Tender was required to be submitted in three envelops (Envelop I, II and III). Envelope I was containing qualifying requirements of Contractor / Firm. Envelope II was Technical Bid containing scanned copy of the Unconditional Acceptance of AAI's Tender Condition and EMD, Affidavit for Not Blacklisting and integrity pact. Envelope III was the Financial eBid shall be submitted in "Items" Section of etendering portal. That as per the tender document, the qualifying requirements of contractor / firms were as under:
(i)Agency specialized in the similar nature of work and registered with Registrar of Companies / Firms / Central Govt. / State Govt. as the case may be and having Permanent Account Number.
(ii) The Bidder should have experience of similar works (definition of similar works as below) during the last seven years ending on 31.12.2017. The bidder has to submit the relevant work experience certificates to the tune of 03 works each of Rs. 1,60,52,321/ (40% of annual estimated value) (or) 02 works each of Rs.2,00,65,401/ (50% of the annual estimated value) (or) 01 work of Rs.3,21,04,642/ (80% value of the annual estimated value) in last 07 years.
Similar works mean - Mechanized cleaning of airport terminals, nonresidential corporate office buildings / Cyber city, MNC Buildings, shopping malls / complex, Five Star Hotels/ Corporate Hospitals/ metro rail premises etc. Client certificate for experience should show the nature of work done, the value of work, date of start, date of completion as per agreement / Status of ongoing work (should have at least 01 year Page 3 of 51 C/SCA/1094/2018 JUDGMENT of work executed. In case of ongoing work, amount of executed work as on 31.12.2017 will only be considered for experience criteria.) Firms showing work experience certificate from non government / nonPSU organizations should submit copy of tax deduction at sources certificate in support of their claim for having experience of stipulated value of work.
iii) Should have annualized average financial turnover of Rs.1,20,39,241/ against works executed during last three years ending 31st March of the previous financial year. As a proof, CA attested copy of Abridged Balance Sheet along with Profit and Loss Account Statement of the firm should be submitted along with the application. Firms showing continuous losses during the last three years in the balance sheet shall be summarily rejected.
iv) The Bidders to submit the proof of the owing the machineries OR Hire agreement with the Equipment Owners (On Stamp Paper of Rs.100/) in PQQ folder as mentioned in Annexure - A on 31st March of the previous financial year. The machines in possession of bidder should not be more than 05 years old.
v) Details of the Tender fees transactions
vi) Undertaking for GST Registration & its
compliance(Annexure A1)
3.2. That along with the document bid, a bidder was required to submit scanned copy of the EMD value of Rs.8,02,616/ to be submitted in the "Tech Bid Folder" in a Technical Bid Attachment section of etendering portal along with the Unconditional Acceptance of the AAI's Tender Conditions, integrity pact and Documents for Technical Evaluation having separate file of each criteria including copy of presentation in PPT. The tender document also provided clarification on technical bid evaluation (Additional Eligibility Criteria) which read as under:
1.The Client shall follow the system where the technical bid and financial bid and financial bid shall be evaluated separately.
2.The tendering evaluation shall be done on weightage with 70% to technical evaluation and 30% to financial evaluation.Page 4 of 51
C/SCA/1094/2018 JUDGMENT
3.The technical bid evaluation shall be done based on the following criteria:
4.During the technical evaluation stage, each bidder shall be assigned different marks out of a total of 100 marks, as per the criteria specified below:
S.N Criteria Max Conditions & Score Remarks/ Documents o. Marks for submission in technical bid folder 1 Firm turnover 20 (a) If firm turnover >200 Cr Firm turnover is (20 Marks) defined as the average
(b) else if firm turnover in turnover from facility 151200 Cr. management services Range (15 Marks) over the last 3 years.
(c) else if firm turnover in 101 - 150 Cr Charted Accountant range (10 Marks) verified / audited
(d) else if firm turnover in turnover statements to 25 - 100 Cr be furnished as proof range (05 Marks) for the same.
(e) firm turnover <25 Cr(02 Marks) 2 Scale & Size of 15 (a) Single work of similar Similar works mean - Operations nature > 10 Cr during Mechanized cleaning awarded work duration 15 of airport terminals, Marks nonresidential
(b) Single work of similar corporate office nature greater than 7.5 Cr buildings / Cyber city, but lesser than 10 Cr during MNC Buildings, awarded work duration - 10 shopping malls / Marks complex, Five Star
(c) Single work of similar Hotels / Corporate nature greater than 05 Cr Hospitals/ metro rail but lesser than 7.5 Cr during premises etc. awarded work duration -05 Marks Client certificate for
(d) Single work lesser than experience should 05 Crores during awarded show the nature of work duration - 02 Marks work done, the value of work, date of start, date of completion as per agreement / status of ongoing work.
Level of satisfaction fo client with work needs to be mentioned in the work experience certificate.
Highest work value
performed over the
last 7 years of the
single work will be
considered for
Page 5 of 51
C/SCA/1094/2018 JUDGMENT
evaluation with min.
of 1 year of execution
of contract completed
(Ongoing works
meeting above criteria
will be considered for
the amount actually
executed upto the
previous month of
floating of tender.)
3 No. of Projects 15 (a) No. of works of similar Definition of similar
nature >= 10 15 works - same as above
Marks but with at least 1
year duration. Work
(b) No. of works of similar can be completed
nature greater than 07 but work / ongoing work lesser than 10 10 and should have at Marks least 1 year of work executed and should
(c) No. of works of similar have been performed nature greater than or equal over the last 7 years.
to 04 but lesser than 07 Value of each works
05 contract should not be
Marks < 03 Cr over awarded
(d) No. of works of similar duration.
nature lesser than 04
02 Selfattested copy of
Marks experience certificates
for completed work /
ongoing work issued
by the Organization
awarded work shall be
acceptable. References
of clients are also
requested.
4 Manpower on Roll 15 (a) Overall manpower on Manpower on roll will
roll > 5,000 15 be all employees on
Marks the books of the
(b) Overall manpower on company on the date
roll between 3,5005,000 of release of the
10Mar tender.
ks
(c) Overall manpower on Duly CA audited
roll between 1,0003,500 statement of
05 manpower wages /
Marks manpower roll for the
(d) Overall manpower previous four quarters <1,000 to be submitted as 02 part of the technical Marks bid.
For winning
contractor, EPFO
Challan / bank
account statement
(duly submitted to
Page 6 of 51
C/SCA/1094/2018 JUDGMENT
EPFO) in respect of
the previous four
quarters may be
verified during award
of contract. Inability
to produce the same
will lead to
blacklisting of agency
from future AAI MESS
tenders.
5 Quality Focus & 10 OHSAS:18001(>1yr 10 QA certification
Capability Marks should have been
obtained at least a
year before the date of
the tender release.
Certification should be
valid with undertaking
for periodic renewal.
6 Possession of Machinery 10 (a) If Book Value/Rent The Bidders to submit Value of Machinery > 5 Cr the proof of the 10 owning the Marks machineries (invoice
(b) If Book Value/Rent etc) OR Hire Value of Machinery between agreement with the 3 Cr to 5 Cr Equipment Owners 06 Marks (On Stamp Paper of
(c) If Book Value/Rent Rs.100/) with details Value of Machinery between of the Book 1 Cr to 3 Cr value/Rent Value of 04 Marks machineries as mentioned in
(d) If Book Value/Rent AnnexureA on 31st Value of Machinery < 1 Cr March of the previous 02 financial year. The Marks machines in possession of bidder should not be more than 05 years old.
7 Presentation 15 Presentation by the firm on Presentation will be
the work to be done; evaluated by a panel
appointed by AAI on
(a) Work plan methodology the aspects defined in (Chemicals / Machinery / scoring criteria.
Manpower) with cleaning
plan for critical areas of Bidders are
referred airport encouraged to study
(05 Marks) the referred airport
and also suggest
(b) Worker retention / improvements for
incentive plan (05 upkeep. Bidder is
Marks) supposed to explicitly
detail out work plan
(c) New Technology usage / of chemical usage
Innovations in (make and monthly
Housekeeping consumption
(05 quantity), manpower
Page 7 of 51
C/SCA/1094/2018 JUDGMENT
Marks) deployment (quantity
and qualifications) as
well as machinery
plan (no. of machines
and make) in the
presentation.
Work plan details of
machinery, chemicals,
manpower as well as
innovations
showcased in
presentation will be
added to work
contract / agreement
and contractor will be
bound to adhere to it
at all costs.
Date of Presentation
will be intimated.
5. A Bidder should secure mandatorily a minimum of 70% marks (i.e. 70 marks our of total 100 marks as per para 4) in Technical Evaluation in order to be a qualified bidder for being eligible for Technical weightage and subsequently for opening of financial bids.
AAI reserves the right to lower the qualification marks of 70% marks if more than 2 bidders do not achieve the 70 marks out of total 100 marks as per para 4.
6. The total marks obtained by a Bidder in the technical bid (as per 4) shall be allocated 70% of technical weightage and the financial bids shall be allocated 30% of the financial weightage, and thereby making a total of 100% weightage for the complete bidding.
Illustration 1 (for Technical weightage) If a Bidder has secured 80 marks out of the total marks in technical evaluation after following para 4, his technical evaluation value shall be: 56 i.e. (80 x 70%).
7. The Bidder shall be required to produce attested copies of the relevant documents in support of 4 in addition to the documentary evidences for (PQQ EnvelopeII) for being considered during technical evaluation.
8. A substantially responsive bid shall be one that meets the requirements of the bidding document in totality i.e. by following the procedures of Para 9. The technical bid not meeting the minimum requirements as per the tender documents shall be rejected and their financial proposals shall Page 8 of 51 C/SCA/1094/2018 JUDGMENT not be opened.
(i) The responsiveness of the bid, i.e. receipts of duty filled, signed and accepted bid documents in complete form, including Authorization letter.
(ii) Receipt of valid EMD with requisite amount in acceptable format.
(iii) Documents in proof of meeting the minimum eligibility criteria.
(iv)Any other documents as requried to support the responsiveness of the bidder, as per tender.
3.3. The Tender document also further provided that bidder who qualified in the Technical Evaluation stage shall only be considered for opening of financial bids. Clause 10 of the Tender Document provide for Financial Bid opening procedure, which read as under:
10.1 The Financial Bids of all the technically qualified Bidders shall be opened on the appointed date and time in presence of the qualified bidders / their authorized representatives, who choose to be present at the time of opening of the financial bids. 10.2 Absence of bidders or their authorized representatives shall not impair the legality of the process.
10.3. The financial bid price, as indicated in the financial bid submission form of each bidder shall be read out on the spot, however, it shall be clearly stated that the final financial bid price would be arrived at after detailed scrutiny/ correction fo arithmetical error in the financial bid.
10.4. Mere becoming the lowest bidder, prior to financial bid scrutiny will not give any right to the lowest bidder to claim that he is successful in the bidding process. The successful bidder (L1) shall be decided only after following due procedure as explained in Para 11.
11. FINANCIAL BID EVALUATION AND DETERMINATION OF THE SUCCESSFUL BIDDER 11.1 The financial evaluation shall be carried out and financial bids of all the bidders shall be given 30% of weightage.Page 9 of 51
C/SCA/1094/2018 JUDGMENT 11.2 The Bidder with the lowest bid Prices (L1) shall be assigned full 30 Marks. (i.e. 30% x 100) and his total scores of the bid shall be as per illustration 2 below:
Illustration 2 If the Bidder at Illustration 1 is L1 Bidder and quoted Rs.500/ for being L1, then his total value shall be 86 i.e. (56 Technical Value + 30 financial Value) 11.3 The financial scores of the other bidders (i.e. L2, L3 ... ad so on) shall be computed as under 30 X 500 (Lowest prices i.e. L1 Price)/ Quoted Value (L2 OR L3) Illustration 3 If the Bidder at Illustration 1 is L2 Bidder and he quoted Rs.625/, therefore, 30% being the weighted value, the financial scores for L2 shall be computed as under.
30X500 (Lowest prices i.e. L1)/625 (Quoted pricesL2)=24 (financial score) Therefore L2 Bidder shall have total value of 80 (56 Technical Value + 24 Financial Values) 11.4 The bidder's ranking shall be arranged depending on the marks obtained by each of the bidder both in Technical Evaluation and Financial Evaluation.
11.5 The Bidder meeting the minimum eligibility criteria and with the highest Marks/ rank (i.e. the total of technical evaluation marks and financial evaluation marks) shall be deemed as the successful Bidder and shall be considered eligible L 1 Bidder for further process.
11.6 If there is a discrepancy between words and figures, the amount it words shall prevail.
EnvelopIII:The Financial eBid shall be submitted in "Items" section of etendering portal.
3.Original EMD (where DD/Bankers Cheque /BG/FDR is submitted), to be sent to DGM (Ops), O/o Airport Director, AAI, SVPI Airport, Ahmedabad on or before the date and time mentioned in NIT, Tender of the tenderers whose EMD (where DD/Bankers Cheque/BG/FDR is submitted are not received by the time and date mentioned in NIT, then their tenders will be summarily rejected. Any postal delay will not be entertained.
3.4. Considering the above, it appears that in the tender document itself it was specifically mentioned that bid shall be Page 10 of 51 C/SCA/1094/2018 JUDGMENT processed on QCBS. That pursuant to the aforesaid tender notice, the petitioner submitted tender / bid for Terminal, however without even deposit of EMD fee as required as per the tender document. It appears that the petitioner submitted the bid / tender for terminal 1 on 19.01.2018 i.e. last date of submission bids envelops I, II & III on eportal. Simultaneously, the petitioner also preferred present Special Civil Application No.1094 of 2018 challenging the impugned E Tender while considering / evaluating the technical bid and financial bid.
3.5. Now, so far as Special Civil Application No.1262 of 2018 is concerned, it is with respect to E Tender document for Terminal
2. The petitioner has prayed to quash and set aside the impugned E Tender for Terminal 2 challenging the eligibility criteria / conditions mentioned in the E tender while considering Technical Bid as well as Financial Bid including condition to deposit the EMD by all bidders like the petitioner who is small scale Enterprise/ Industries registered as such.
4.0. Shri P.R. Nanavati, learned advocate has appeared on behalf of the respective petitioners, Shri Shalin Mehta, learned Senior Advocate has appearing with Shri B.S. Raju, learned advocate for the respondent no.3 Airport Authority of India.
5.0. Shri P.R. Nanavati, learned advocate appearing on behalf of the respective petitioners has vehemently submitted that as such Page 11 of 51 C/SCA/1094/2018 JUDGMENT conditions stipulated in the E Tender including eligibility criteria are absolutely illegal and arbitrary.
5.1. It is further submitted by Shr Nanavati, learned advocate for the respective petitioners that as such the contract in question ought to have been reserved for Micro and Small Scale Industries of State of Gujarat, as per Section 11 of the Micro, Small and Medium Enterprise Development Act, 2006.
5.2. It is vehemently submitted by Shri Nanavati, learned advocate for the respective petitioners that contract for which the tenders are invited is a service contract and not a works contract and therefore, the same is required to be reserved for Micro and Small Scale Industries of State of Gujarat. It is submitted that therefore, the impugned E Tender and / or contract not reserved for the Micro and Small Scale Industries of State of Gujarat is absolutely illegal and arbitrary and contrary to the Policy of the Central Government.
5.3. It is vehemently submitted by Shri Nanavati, learned advocate for the respective petitioners that adopting QCBS (Quality and Costs Based Selection), by the respondent authority for the contract in question is absolutely illegal and arbitrary. It is submitted that for the work / contract in question the QCBS method of selection is not required to be applied. It is submitted that one another contractor under the RTI raised a specific query as Page 12 of 51 C/SCA/1094/2018 JUDGMENT to whether for procurement of nonconsulting services to the effect that QCBS is a method of selection for procurement of upkeeping services and also whether Mechanized Environmental Support Services (MESS) is a contract of upkeeping (cleaning and housekeeping) facilities, apropos both the above referred queries, the concerned authority of Ministry of Finance have specifically informed that QCBS may be used for consulting services, whereas quality of consultancy is prime concerned and upkeeping is non consultancy services as per the definition under GFR 197 QCBS is not the appropriate method of procurement. It is submitted that therefore, in view of the above, it is absolutely clear that the bids invited by the concerned respondent for Mechanized Environmental Support Services (MESS) upkeeping of Terminal 1 and InterTerminal Link at Sardar Vallabhbhai Patel International Airport, Ahmedabad is nothing but a non consultancy services and therefore, the whole exercise of following QCBS criteria is absolutely ill founded and the same has been adopted with mala fide intention to eliminate the MESS Units like the present petitioner, who has been otherwise successfully catering the needs of the concerned respondent and private upkeeping service since 2012 to their satisfaction.
5.4. It is further submitted by Shri Nanavati, learned advocate for the respective petitioners that even technical bid evaluation criteria, on the basis of which, the technical bid and financial bid are to be evaluated, are just contrary to the policy of the Central Government and CVC guideline. It is submitted that as per the CVC Page 13 of 51 C/SCA/1094/2018 JUDGMENT guideline the prequalification criteria specified in the tender document should neither be made very stringent nor very lax to restrict / facilitate the entry of bidders. It is submitted that it is further clarified that pre qualification criteria are exhaustive, yet specific and to see that there is fair competition.
5.5. It is further submitted by Shri Nanavati, learned advocate for the respective petitioners that even otherwise the respondent Airport Authority of India was required to follow the guidelines issued by the Central Government on MSME. It is submitted that it is the policy of the State Government that the MSME shall be envisaged. It is submitted that therefore, as such the petitioner being registered as Medium and Small Industries, the petitioner was required to be exempted from payment of EMD. It is submitted that therefore, rejection of the bid of the petitioner in Special Civil Application No.1262 of 2018 on the ground that the petitioner has not paid even the EMD cannot be sustained and same deserves to be quashed and set aside.
It is further submitted that in any case the other criteria / eligibility criteria while considering the financial bid namely the firm turnover, scale and size of operations, number of projects, manpower on Roll etc. are arbitrary and mala fide only with a view to eliminate bidders like the petitioners who would not be in a position to compete with other bidders. It is submitted that therefore, suchthe conditions / eligibility criteria are bad in law and therefore, entire E Tender deserves to be quashed and set aside.
Page 14 of 51C/SCA/1094/2018 JUDGMENT 5.6. Shri Nananvati, learned advocate for the respective petitioners has heavily relied upon the decision of the Hon'ble Supreme Court in the case of State of Bihar vs. Suprabhat Steel Limited reported in AIR 1999 SC 303, decision of the Division Bench of this Court in the case of Utkal Pharmaceuticals Manufacturers and Anr vs. State of Orissa and Ors reported in 2011(1) ILR (Cut) 316 in support his submission on the contract in question to be reserved for MSME.
5.7. Shri Nananvati, learned advocate for the respective petitioners has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Reliance Energy Limited vs, Maharashtra Road Development Corporation Limited reported in (2007) 8 SCC 1 in support of his submission that "Level Playing Field" is an import concept while construing Article 19(1)(g). It is submitted that as observed and held by the Hon'ble Supreme Court "Level Playing Field" provides space within which equally placed competitors are allowed to bid so as to subserve large public interest.
Making above submissions, it is requested to allow the present petitions.
6.0. Both these petitions are vehemently opposed by Shri Shalin Mehta, learned counsel for the respondent nos. 2 and 3. It is vehemently submitted by Shri Mehta, learned counsel for the respondent nos. 2 and 3 that as such Prequalification criteria in the tender document prescribed are strictly in accordance with CVC guidelines dated 17th December 2002. It is submitted that as such Page 15 of 51 C/SCA/1094/2018 JUDGMENT CVC guidelines have been issued only in respect of Prequalification criteria and pertaining to Civil/Electrical works which has been made base for formulating PQ, for the tender of the Mechanized Environmental Support Services (UpKeeping) including all the similar tenders by Airport Authority of India throughout the country.
6.1. It is submitted that to meet the growing demands of the passengers and to compete in the present aviation scenario, AAI, CHQ has formulated the Quality and Cost Based System (QCBS) MESS guidelines to be implemented in selected airports through open tender process. It is submitted that subject work is comprehensive in nature and specialized job for upkeep of high rise Terminal buildings consisting of glass and steel structure upto the height of 57 ft which includes manpower, machinery (high rise lifts etc.) and chemicals/consumables. It is submitted that therefore, it cannot be said that the technical criteria stipulated in the impugned tender are in gross violation of CVC Guidelines.
6.2. Now, so far as conditions of financial turnover as mentioned in the clause 2.4 of the Tender is concerned, it is submitted that in the Notice Inviting Tender, AAI has not asked average financial turnover must be Rs. 25200 Crores as alleged by the petitioner. It is submitted that the financial condition mentioned is additional eligible criteria are based on QCBS Evaluation criteria which have been adopted at various airports. It is submitted that said QCBS are being followed by IIT Chennai, IIT Kanpur, CAG office, HAL, AIIMS etc. It is submitted that since this Page 16 of 51 C/SCA/1094/2018 JUDGMENT is the open tender, all agencies meeting the minimum criteria can participate in the tendering process,. It is submitted that QCBS evaluation is done in order to ensure high cleaning standards at International Airports and to meet the growing customers' needs and requirements. It is submitted that Tender guideline cannot be framed separately to meet the interest of any particular agency. It is submitted that it is open tender and in the interest of public for quality service at competitive cost. It is submitted that therefore, it cannot be said that the tender conditions are framed to deprive small units and favour large scale entities. It is submitted that in any case the said adopted QCBS system in no way would cause loss of capital to the public exchequer, but on the contrary it would maintain the Airports in better condition.
6.3. It is further submitted by Shri Mehta, learned counsel for the respondent nos. 2 and 3 that it is true that the petitioner was a successful bidder earlier and its work is in progress. It is submitted that however the work was awarded in 2012 and during that period footfall was very less but there is tremendous growth in passenger's movement reaching to approximately 7.5 million per annum (projected for the year 201718 is 8.6 million per annum) and due to the growing traffic, Corporate Head Quarters of AAI has classified Ahmedabad Airport under QCBS category "A". It is submitted that during the recent past we have received numerous complaints pertaining to upkeeping of Terminals from the passengers and the same has been reported in media, Public grievances log, online complaint portal in respect of Upkeeping of Ahmedabad Airport. It is submitted that extension of work of Page 17 of 51 C/SCA/1094/2018 JUDGMENT existing contractor petitioner herein has been based on mandatory requirement for smooth operations of any airport and cannot be stopped as the work is perennial in nature..
6.4. It is further submitted by Shri Mehta, learned counsel for the respondent nos. 2 and 3 that as such the petitioner did not raise any objection earlier against adopting QCBS by the respondent authority. It is submitted that in the representation dated 15.01.2018 addressed to the Chairman, AAI, no such objection was raised against the QCBS. It is further submitted that no specific queries were raised with respect to adopting QCBS. It is submitted that as such ultimately it is for the appropriate authority to adopt the particular criteria for selecting the best contractor.
6.5. Now, so far as submission on behalf of the petitioner that contract in question ought to have been reserved for Micro and Small Industries and reliance placed upon the MSME Act is concerned, it is vehemently submitted by Shri Mehta, learned counsel for the respondent nos. 2 and 3 that as such contract in question is "works contract" and not for procurement of goods alone. It is submitted that it can be said to be hybrid works contract for which, MSME Act shall not be applicable. It is submitted that in clause 35 itself everybody was put to notice that MSME Act shall not be applicable as it is works contract different from contractor for supply of material. It is submitted that therefore, all were required to pay EMD which petitioner failed to pay / deposit. Relying upon the relevant clauses of the Tender Notice viz. Clause 3, 4, 5,,8, 13, 15, 16(d), 27, it is vehemently Page 18 of 51 C/SCA/1094/2018 JUDGMENT submitted that as such the contract in question is "works contract"
and therefore, MSME Act shall not be applicable.
6.6. It is further submitted by Shri Mehta, learned counsel for the respondent nos. 2 and 3 that author of the Tender has specifically labelled and / or considered the contract as "works contract" and therefore, being works contract, MSME Act shall not be applicable. In support of his above submissions, Shri Mehta, learned counsel for the respondent nos. 2 and 3 has heavily relied upon the decision of the Division Bench of this Court in the case of Surya International vs. Union of India & Ors rendered in Special Civil Application No. 14297 of 2017. It is submitted that therefore, the Procurement Policy, 2012 shall not be applicable with respect to contract in question.
6.7. It is further submitted by Shri Mehta, learned counsel for the respondent nos. 2 and 3 that as such petitioner has not challenged the condition of deposit of EMD.
6.8. It is further submitted by Shri Mehta, learned counsel for the respondent nos. 2 and 3 that what is challenged by the petitioner is additional eligibility criteria and not sole eligibility criteria. It is submitted that what is challenged by the petitioner is additional eligibility criteria and not prequalification criteria. It is submitted that CVC guidelines upon which the reliance has been placed is with respect to prequalification criteria and not with respect to additional criteria.Page 19 of 51
C/SCA/1094/2018 JUDGMENT 6.9. It is further submitted by Shri Mehta, learned counsel for the respondent nos. 2 and 3 that even otherwise additional eligibility criteria under challenge cannot be said to be so arbitrary or have no nexus with the object or no prudent person would impose such condition.
6.10. Now, so far as the submission on behalf of the petitioner relying upon communication dated 18.01.2016, by which, the petitioner is in the list of approved firm for empanelment in Category A is concerned, it is submitted that merely because the petitioner is in the list of approved contractor category A, the petitioner does not get any additional right. The petitioner is to compete with others subject to compling with the eligibility criteria both prequalification as well as additional eligibility criteria.
6.11. Now, so far as reliance placed upon the additional document produced along with the affidavit filed on behalf of the petitioner dated 28.02.2018 relied upon by the petitioner and reply received under the RTI Act and the case on behalf of the petitioner that for work in question QCBS method of selection is not required, Shri Mehta, learned counsel for the respondent nos. 2 and 3 has submitted that as such Airport Authority of India has been classified under the Miniratna Companies and is a PSU and thus it has been empowered with discretion to act as autonomy and with flexibility to operate effectively in a competitive environment and therefore, Airport Authority of India are empowered with a greater autonomy under Airport Authorities Act, 1994 in order to compete with other private players in the Aviation Industry and to provide better Page 20 of 51 C/SCA/1094/2018 JUDGMENT services of International Standard. It is submitted that MESS (QCBS) based tender was prepared and floated by Airport Authority of India after approval of the competent authority. It is submitted that MESS is specialized nature of job and is different from General Cleaning by Janitors and Outsourcing of Building facilities as mentioned in the reply given by Ministry of finance which has no bearing in the present case, i.e. in MESS tender floated for T1 and T2. It is submitted that Machines / Equipment/ T & P costing turns out to approximately 65 lakhs for T1 and approximately 95 Lakhs for T2 which has been deployed and thus operation of these machines thus require Experience and Expertise and to ensure proper safety during passengers movement, without compromising Cleanliness, Standard QCBS tender has been floated by the authority. It is submitted that other reputed Institutions / Authority likes AIMS and others have adopted the same QCBS based tender to attract financial and technical soundness in working process. It is further submitted that in any case adopting QCBS method cannot be said arbitrary and / or illegal and / or mala fide.
Making above submissions and relying upon the following decisions, it is requested to dismiss the present petitions.
1. Surya International vs. Union of India rendered in SCA No.14297 of 2017.
2. Michigan Rubber Ltd vs. State of Karnataka and Ors reported in (2012) 8 SCC 216.
3. S.S. & Company vs. Orissa Mining Corporation Ltd reported in (2008) 5 SCC 772.
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4. Commissioner, Central Exciese and Customs, Kerala vs. Larsen and Toubro Ltd reported in (2016) 1 SCC 170.
5. Global Energy Ltd and Anr vs. Adani Exports Ltd and Ors reported in (2005) 4 SCC 435.
6. Central Coalfields Ltd and Anr vs. SLLSML and Ors reported in (2016) 8 SCC 622.
7. Goldstone Infratech Ltd vs. State of Gujarat rendered in SCA No.2097 of 2018.
8. Tractors & Farm Equipment Ltd vs. Union of India rendered in SCA No.18153 of 2017.
9. Directorate of Education & Ors. vs. Educomp Datamatics Ltd. & Ors reported in(2004) 4 SCC 19.
7.0. Heard the learned counsel for the respective parties at length. At the outset, it is required to be noted that the respective petitioners have prayed for appropriate writ, direction and order to quash and set aside the impugned E tender for the work Mechanised Environmental Support Services (MESS) UpKeeping of terminal 1 and 2 at SVPI, Airport, Ahmedabad. That the petitioners have challenged some of the eligibility criteria by submitting that same are either not required and / or too harsh and / or by which only some of the contractors are likely to be eligible and the contractors like the petitioners are likely to be ousterd. It is also the case on behalf of the petitioners that as such contract in question is required to be reserved for Micro and Small Industries / enterprise as per Section 11 of MSME Act. It is also the case on behalf of the petitioners that as such the petitioners being Small Scale Enterprise is entitled to exemption from deposit of EMD. It is also the case on Page 22 of 51 C/SCA/1094/2018 JUDGMENT behalf of the petitioners that QCBS method adopted by the respondent is not required for the work in question. It is also the case on behalf of the petitioners that some of the eligibility criteria are just contrary to the CVC guidelines and / or Procurement Policy, 2012.
Therefore, question which is posed for the consideration of this Court is, can a bidder pray to amend and/or modify the terms and conditions of the Tender Notice to the extent it suits it to make it eligible to participate ? The next question which is posed for the consideration of this Court is whether the High Court would be justified in directing the employer / purchaser to modify and/or amend the eligibility criteria / terms and conditions of the Tender Notice which may suit one of the bidder, in exercise of powers under Article 226 of the Constitution of India? Another question which is posed for consideration of this Court is, whether is it open for one of the bidder to challenge the terms and conditions / eligibility criteria mentioned in the Tender Notice because of which he is likely to be disqualified and can bidder pray for a writ of mandamus and/or any other writ to modify and/or amend the terms and conditions / eligibility criteria which suits it ?
7.1. While considering the aforesaid issue, the scope of judicial review in the contract matter as considered by the Hon'ble Supreme Court in some of the decisions are required to be dealt with and considered. In the case of Educomp Datamatics Ltd. & Ors (Supra), the Hon'ble Supreme Court has observed and held that terms of initiation to tender are not open to judicial scrutiny, the same being in the realm of contract. It is observed that the Government must Page 23 of 51 C/SCA/1094/2018 JUDGMENT have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative body in an administrative sphere. It is further observed that the Court can scrutinize the award of the contracts by the Government or its agencies in exercise of their powers of judicial review to prevent arbitrariness or favoritism. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. It is further observed and held that the Courts cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. While observing so in 9 to 12, the Hon'ble Supreme Court has observed and held as under:
"9. It is well settled now that the courts can scrutinize the award of the contracts by the government or its agencies in exercise of its powers of judicial review to prevent arbitrariness or favoritism. However, there are inherent limitations in the exercise of the power of judicial review in such matters. The point as to the extent of judicial review permissible in contractual matters while inviting bids by issuing tenders has been examined in depth by this Court in Tata Cellular vs. Union of India [1994 (6) SCC 651]. After examining the entire case law the following principles have been deduced.
94. The principles deducible from the above are:
(1) The modern trend points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract Page 24 of 51 C/SCA/1094/2018 JUDGMENT is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.
10. In Air India Limited vs. Cochin International Airport Limited, this Court observed:
The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the court can examine the decision making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness.
11. This principle was again restated by this Court in Monarch Infrastructure (P) Ltd. vs. Commissioner, Ulhasnagar Municipal Corporation and Others [2000 (5) SCC 287]. It was held that the terms and conditions in the tender are prescribed by the Page 25 of 51 C/SCA/1094/2018 JUDGMENT government bearing in mind the nature of contract and in such matters the authority calling for the tender is the best judge to prescribe the terms and conditions of the tender. It is not for the courts to say whether the conditions prescribed in the tender under consideration were better than the one prescribed in the earlier tender invitations.
12. It has clearly been held in these decisions that the terms of the invitation to tender are not open to judicial scrutiny the same being in the realm of contract. That the government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative body in an administrative sphere. The courts would interfere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The courts cannot strike down the terms of the tender prescribed by the government because it feels that some other terms in the tender would have been fair, wiser or logical. The courts can interfere only if the policy decision is arbitrary, discriminatory or mala fide.
7.2. In the case of Central Coalfields Limited and Ors. (Supra), the Hon'ble Supreme Court after considering the host of decisions, has observed and held that the decision making process of the employer or owner of the project in accepting or rejecting the bid of a tenderer should not be interfered with. It is observed and held that interference is permissible only if the decision making process is mala fide or is intended to favour someone. It is further observed that similarly, the decision should not be interfered with unless the decision is so arbitrary or irrational that the Court could say that the decision is one which no responsible authority acting reasonably and in accordance with law could have reached. It is further observed that in other words, the decision making process or the decision should be perverse and not merely faulty or incorrect or erroneous. In the aforesaid decision, the Hon'ble Page 26 of 51 C/SCA/1094/2018 JUDGMENT Supreme Court has considered its earlier decision in the case reported in (1989) 3 SCC 293 as well as decision in the case reported in (1994) 6 SCC 651 as well as in the case of (2007) 4 SCC 517. After considering the aforesaid decisions, the Hon'ble Supreme Court has went a step further and has held that the decision if challenged, the Constitutional Court can interfere if the decision is perverse. However, the Constitutional Courts are expected to exercise restrain in interfering with the administrative decision and ought not to substitute its view for that of the administrative authority. Similar view has been taken by the Hon'ble Supreme Court in the case of Afcons Infrastructure Ltd (Supra).
7.3. In the case of Central Coalfields Limited (Supra), the Hon'ble Supreme Court has further observed and held that the Court, as far as possible, avoid a construction which would render the words used by the author of the document meaningless and futile or reduce to silence any part of the document and make it altogether inapplicable. It is further observed and held that whether a term is essential or not is a decision taken by the employer, which should be respected and soundness of that decision cannot be questioned by Court. It is further observed in the case of Central Coalfields Limited (Supra) that it is well settled rule of interpretation applicable alike to documents as to statutes that, save for compelling necessity, the Court should not be prompt to ascribe superfluity to the language of a document and should be rather at the outset inclined to suppose every word intended to have some effect or be of some use. It is further observed that to Page 27 of 51 C/SCA/1094/2018 JUDGMENT reject words as insensible should be the last resort of judicial interpretation, for it is an elementary rule based on common sense that no author of a formal document intended to be acted upon by the others should be presumed to use words without a meaning. Even in the case of Michigan Rubber (India) Limited (Supra), the decision which has been relied upon by the learned counsel for the petitioner, the Hon'ble Supreme Court has observed that the Court cannot interfere with the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical.
The Hon'ble Supreme Court in the case of Central Coalfields Limited (Supra), in paras 31 to 38, 42 to 44, 47 to 49, 52, 55 and 56 has observed and held as under:
"31. We were informed by the learned Attorney General that 9 of the 11 bidders furnished a bank guarantee in the prescribed and correct format. Under these circumstances, even after stretching our credulity, it is extremely difficult to understand why JVC was unable to access the prescribed format for the bank guarantee or furnish a bank guarantee in the prescribed format when every other bidder could do so or why it could not seek a clarification or why it could not represent against any perceived ambiguity. The objection and the conduct of JVC regarding the prescribed format of the bank guarantee or a supposed ambiguity in the NIT does not appear to be fully above board.
32. The core issue in these appeals is not of judicial review of the administrative action of CCL in adhering to the terms of the NIT and the GTC prescribed by it while dealing with bids furnished by participants in the bidding process. The core issue is whether CCL acted perversely enough in rejecting the bank guarantee of JVC on the ground that it was not in the prescribed format, thereby calling for judicial review by a constitutional court and interfering with CCL's decision.
33. In Ramana Dayaram Shetty v. International Airport Authority of India, 1979 3 SCC 489 this Court held that the words used in a document are not superfluous or redundant but must be given some meaning and weightage: "It is a well settled rule of Page 28 of 51 C/SCA/1094/2018 JUDGMENT interpretation applicable alike to documents as to statutes that, save for compelling necessity, the Court should not be prompt to ascribe superfluity to the language of a document "and should be rather at the outset inclined to suppose every word intended to have some effect or be of some use". To reject words as insensible should be the last resort of judicial interpretation, for it is an elementary rule based on common sense that no author of a formal document intended to be acted upon by the others should be presumed to use words without a meaning. The court must, as far as possible, avoid a construction which would render the words used by the author of the document meaningless and futile or reduce to silence any part of the document and make it altogether inapplicable."
34. In Ramana Dayaram Shetty case, the expression "registered IInd Class hotelier" was recognized as being inapt and perhaps ungrammatical; nevertheless common sense was not offended in describing a person running a registered II grade hotel as a registered II Class hotelier. Despite this construction in its favour, respondents 4 in that case were held to be factually ineligible to participate in the bidding process.
35. It was further held that if others (such as the appellant in that case) were aware that non fulfillment of the eligibility condition of being a registered II Class hotelier would not be a bar for consideration, they too would have submitted a tender, but were prevented from doing so due to the eligibility condition, which was relaxed in the case of respondents 4. This resulted in unequal treatment in favour of respondents 4 treatment that was constitutionally impermissible. Expounding on this, it was held:
"It is indeed unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the interests of the individual. Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of this principle it makes no difference whether the exercise of the power involves affectation of some right or denial of some privilege."
36. Applying this principle to the present appeals, other bidders and those who had not bid could very well contend that if they had known that the prescribed format of the bank guarantee was not mandatory or that some other term(s) of the NIT or GTC were not mandatory for compliance, they too would have meaningfully participated in the bidding process. In other words, by rearranging the goalposts, they were denied the "privilege" of participation.
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37. For JVC to say that its bank guarantee was in terms stricter than the prescribed format is neither here nor there. It is not for the employer or this Court to scrutinize every bank guarantee to determine whether it is stricter than the prescribed format or less rigorous. The fact is that a format was prescribed and there was no reason not to adhere to it. The goalposts cannot be rearranged or asked to be rearranged during the bidding process to affect the right of some or deny a privilege to some.
38. In G.J Fernandez v. State of Karnataka, 1990 2 SCC 488 both the principles laid down in Ramana Dayaram Shetty were reaffirmed. It was reaffirmed that the party issuing the tender (the employer) "has the right to punctiliously and rigidly" enforce the terms of the tender. If a party approaches a Court for an order restraining the employer from strict enforcement of the terms of the tender, the Court would decline to do so. It was also reaffirmed that the employer could deviate from the terms and conditions of the tender if the "changes affected all intending applicants alike and were not objectionable." Therefore, deviation from the terms and conditions is permissible so long as the level playing field is maintained and it does not result in any arbitrariness or discrimination in the Ramana Dayaram Shetty sense.
42. Unfortunately, this Court did not at all advert to the privilege of participation principle laid down in Ramana Dayaram Shetty and accepted in G. J. Fernandez. In other words, this Court did not consider whether, as a result of the deviation, others could also have become eligible to participate in the bidding process. This principle was ignored in Poddar Steel.
43. Continuing in the vein of accepting the inherent authority of an employer to deviate from the terms and conditions of an NIT, and reintroducing the privilege of participation principle and the level playing field concept, this Court laid emphasis on the decision making process, particularly in respect of a commercial contract. One of the more significant cases on the subject is the three judge decision in Tata Cellular v. Union of India, 1994 6 SCC 651 which gave importance to the lawfulness of a decision and not its soundness. If an administrative decision, such as a deviation in the terms of the NIT is not arbitrary, irrational, unreasonable, mala fide or biased, the Courts will not judicially review the decision taken. Similarly, the Courts will not countenance interference with the decision at the behest of an unsuccessful bidder in respect of a technical or procedural violation. This was quite clearly stated by this Court (following Tata Cellular) in Jagdish Mandal v. State of Orissa, 2007 14 SCC 517 in the following words:
Page 30 of 51C/SCA/1094/2018 JUDGMENT "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 succor to thousands and millions and may increase the project cost manifold."
This Court then laid down the questions that ought to be asked in such a situation. It was said :
"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."
44. On asking these questions in the present appeals, it is more than apparent that the decision taken by CCL to adhere to the terms and conditions of the NIT and the GTC was certainly not irrational Page 31 of 51 C/SCA/1094/2018 JUDGMENT in any manner whatsoever or intended to favour anyone. The decision was lawful and not unsound.
47. The result of this discussion is that the issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. As held in Ramana Dayaram Shetty the terms of the NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone or a decision "that no responsible authority acting reasonably and in accordance with relevant law could have reached" as held in Jagdish Mandal followed in Michigan Rubber.
48. Therefore, whether a term of the NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders as held in Ramana Dayaram Shetty. However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. The lawfulness of that decision can be questioned on very limited grounds, as mentioned in the various decisions discussed above, but the soundness of the decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot.
49. Again, looked at from the point of view of the employer if the Courts take over the decision making function of the employer and make a distinction between essential and non essential terms contrary to the intention if the employer and thereby rewrite he arrangement, it could lead to all sorts of problems including the one that were grappling with. For example, the GTC that we are concerned with specifically states in Clause 15.2 that "Any Bid not accompanied by an acceptable Bid Security/EMD shall be rejected by the employer as non responsive." Surely, CCL ex facie intended this term to be mandatory, yet the High Court held that the bank guarantee in a format not prescribed by it ought to be accepted since that requirement was a non essential term of the GTC. From the point of view of CCL the GTC has been impermissibly rewritten by the High Court.
52. There is a wholesome principle that the Courts have been Page 32 of 51 C/SCA/1094/2018 JUDGMENT following for a very long time and which was articulated in Nazir Ahmed v. King Emperor, 1936 AIR(PC) 253 namely "Where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden."
There is no valid reason to give up this salutary principle or not to apply it mutatis mutandis to bid documents. This principle deserves to be applied in contractual disputes, particularly in commercial contracts or bids leading up to commercial contracts, where there is stiff competition. It must follow from the application of the principle laid down in Nazir Ahmed that if the employer prescribes a particular format of the bank guarantee to be furnished, then a bidder ought to submit the bank guarantee in that particular format only and not in any other format. However, as mentioned above, there is no inflexibility in this regard and an employer could deviate from the terms of the bid document but only within the parameters mentioned above.
55. On the basis of the available case law, we are of the view that since CCL had not relaxed or deviated from the requirement of furnishing a bank guarantee in the prescribed format, in so far as the present appeals are concerned every bidder was obliged to adhere to the prescribed format of the bank guarantee. Consequently, the failure of JVC to furnish the bank guarantee in the prescribed format was sufficient reason for CCL to reject its bid.
56. There is nothing to indicate that the process by which the decision was taken by CCL that the bank guarantee furnished by JVC ought to be rejected was flawed in any manner whatsoever. Similarly, there is nothing to indicate that the decision taken by CCL to reject the bank guarantee furnished by JVC and to adhere to the requirements of the NIT and the GTC was arbitrary or unreasonable or perverse in any manner whatsoever."
7.4. [8.4] In the case of Maa Binda Express Carrier & Anr. vs. North Eastern Frontier Railway & Ors. reported in (2014)3 SCC 760, the Hon'ble Supreme Court had an occasion to consider the scope of judicial review in the matters relating to award of contracts by the State and its instrumentalities. In paras 8 to 11 the Hon'ble Supreme Court has observed and held as under :
"8. The scope of judicial review in matters relating to award of Page 33 of 51 C/SCA/1094/2018 JUDGMENT 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 consideration 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.
9. Suffice it to say that in the matter of award of contracts the Government and its agencies have to act reasonably and fairly at all points of time. To that extent the tenderer has an enforceable right in the Court who is competent to examine whether the aggrieved party has been treated unfairly or discriminated against to the detriment of public interest. (See Meerut Development Authority v. Assn. Of Management Studies4 and Air India Ltd. v. Cochin International Airport Ltd.
10. The scope of judicial review in contractual matters was further examined by this Court in Tata Cellular v. Union of India, Raunaq International Ltd. case and in Jagdish Mandal v. State of Orissa [Supra] besides several other decisions to which we need not refer."
7.5. In the case of Tata Cellular (Supra), the Hon'ble Supreme Court in para 94 has observed and held as under:
94. The principles deducible from the above are :
[1] The modern trend points to judicial restraint in administrative action.
[2] The court does not sit as s court of appeal but merely reviews the manner in which the decision was made.Page 34 of 51
C/SCA/1094/2018 JUDGMENT [3] The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted, it will be subsisting its own decision, without the necessary expertise which itself may be fallible. [4] The terms of the invitation of tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. [5] The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasiadministrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
[6] Quashing decisions may impose heavy administrative burden on the administration and lead to increased and un budgeted expenditure."
7.6. In the case of Michigan Rubber [India] Limited (Supra), the Hon'ble Supreme Court has observed and held as under :
"24. It is also highlighted by the State as well as by the KSRTC that the tender conditions were stipulated by way of policy decision after due deliberation by the KSRTC. Both the respondents highlighted that the said conditions were imposed with a view to obtain good quality materials from reliable and experienced suppliers. In other words, according to them, the conditions were aimed at the sole purpose of obtaining good quality and reliable supply of materials and there was no ulterior motive in stipulating the said conditions."
7.7. In the case of Tamil Nadu Generation & Distribution Corporation Limited [TANGEDCO] & Anr. vs. CSEPDITRISHE Consortium & Anr., reported in (2017) 4 SCC 318, the Hon'ble Supreme Court has observed and held that in a complex fiscal evaluation, the Court has to apply the doctrine of restraint. Several aspects, clauses, contingencies, etc., have also to be factored.Page 35 of 51
C/SCA/1094/2018 JUDGMENT 8.0. In the case of Raunaq International Limited vs. I.V.R. Construction Ltd. and Ors. reported in (1999)1 SCC 492, it is observed and held by the Hon'ble Supreme Court that (a) before entertaining a petition, Court must be satisfied that some element of public interest is involved; (b) the dispute purely is not inter se private parties; (c) difference in price offer between the two tenderers may or may not be decisive in deciding the question of public interest; (d) where a decision is taken bonafide and the choice exercised on legitimate consideration, without any arbitrariness, Court should not show indulgence; (e) While granting interim injunction, Court must carefully weigh conflicting public interest; (f) where the decision making process stands structured and the tender conditions do set out requirements, Court is entitled to examine application thereof to the relevant fact circumstances;
(g) relaxation if otherwise permissible, in terms of the conditions must be exercised for legitimate reasons; (h) nature and urgency in getting the project implemented is a relevant factor; (i) judicial review is permissible only on the established grounds, including malafide, arbitrariness or unreasonableness of the variety of Wednesbury principle.
8.1. The Hon'ble Apex Court in the case of Master Marine Services (P) Ltd. vs. Metlalfe & Hodg Kinson (P) Ltd. and another reported in (2005) 6 SCC 138 (Two Judges), Court reiterated the principles that: (a) State can choose its own method to arrive at a decision; (b) State and its instrumentalities have duty to be fair to all concerned; (c) even when some defect is found in Page 36 of 51 C/SCA/1094/2018 JUDGMENT decision making process, Court must exercise its extra ordinary writ jurisdiction with great caution and that too in furtherance of public interest; and (d) larger public interest in passing an order of intervention is always a relevant consideration.
8.2. The Hon'ble Apex Court in the case of Jagdish Mandal vs. State of Orissa and others reported in (2007)14 SCC 517 (Two Judges), reiterated the aforesaid principles by stating that before interfering in a tender and contractual matter, in exercise of its power of judicial review, Court should pose itself the following question: "(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 answer is in the negative, there should be no interference under Article 226. Most recently the Hon'ble Supreme Court in the case of Central Coalfields Limited (Supra), observed that: "..........If an administrative decision, such as a deviation in the terms of the NIT is not arbitrary, irrational, unreasonable, mala fide or biased, the Courts will not judicially review the decision taken. Similarly, the Courts will not countenance interference with the decision at the behest of an unsuccessful bidder in respect of a technical or procedural violation....."
8.3. In the case of Maa Binda Express Carrier and another Page 37 of 51 C/SCA/1094/2018 JUDGMENT (Supra), the Hon'ble Supreme Court relying upon its earlier decisions reiterated the following principles: "23... ...
(a) the basic requirement of Article 14 is fairness in action by the State, and nonarbitrariness 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...."
(Emphasis supplied) 8.4. The principles stand reiterated in Haryana Urban Development Authority and others vs. Orchid Infrastructure Developers Private Limited reported in (2017) 4 SCC 243 (Two Judges) and Reliance Telecom Limited and another vs. Union of India and another reported in (2017) 4 SCC 269 (Two Judges).
Page 38 of 51C/SCA/1094/2018 JUDGMENT 8.5. In the case of International Trading Co. and Another (Supra), while emphasizing on national priorities, the Hon'ble Supreme Court has observed and held in paras 22 and 23 as under:
"22. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities and adopt trade policies. As noted above, the ultimate test is whether on the touchstone of reasonableness the policy decision comes out unscathed.
23. Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interests of the general public and not from the standpoint of the interest of persons upon whom the restrictions have been imposed or upon abstract consideration. A restriction cannot be said to be unreasonable nearly because in a given case, it operates harshly. In determining whether there is any unfairness involved; the nature of the right alleged to have been infringed the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time, enter into judicial verdict. The reasonableness of the legitimate expectation has to be determined with respect to the circumstances relating to the trade or business in question. Canalization of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the country. (See Parbhani Transport Coop. Society Ltd. v. Regional Transport Authority5, Shree Meenakshi Mills Ltd. v. Union of India6, Hari Chand Sarda v. Mizo District Council7 and Krishnan Kakkanth v. Govt. of Kerala8.)"
8.6. In the case of Global Energy Ltd. and Another V/s. Adani Exports Ltd. and Others reported in (2005)4 SCC 435, it was observed that unless terms of a tender notice are wholly arbitrary, discriminatory or actuated by malice are not subject to judicial review. It was observed as under: "10. The principle is, therefore, well settled that the terms of the invitation to tender are not open to judicial scrutiny and the Courts cannot whittle down the terms of the tender as they are in the realm of contract unless they are wholly arbitrary, discriminatory or actuated by malice. This being the position of law, settled by a Page 39 of 51 C/SCA/1094/2018 JUDGMENT catena of decisions of this Court, it is rather surprising that the learned Single Judge passed an interim direction on the very first day of admission hearing of the writ petition and allowed the appellants to deposit the earnest money by furnishing a bank guarantee or a bankers' cheque till three days after the actual date of opening of the tender. The order of the learned Single Judge being wholly illegal, was, therefore, rightly set aside by the Division Bench."
8.7. n case of Siemens Aktiengeselischaft and Siemens Limited V/s. Delhi Metro Rail Corporation Ltd. and Others reported in (2014)11 SCC 288, the Hon'ble Supreme Court relying upon the decision in the case of Tata Cellular (Supra), observed as under:
"23. There is no gainsaying that in any challenge to the award of contact before the High Court and so also before this Court what is to be examined is the legality and regularity of the process leading to award of contract. What the Court has to constantly keep in mind is that it does not sit in appeal over the soundness of the decision. The Court can only examine whether the decision making process was fair, reasonable and transparent. In cases involving award of contracts, the Court ought to exercise judicial restraint where the decision is bonafide with no perceptible injury to public interest."
8.8. In case of Association of Registration Plates V/s. Union of India and Others reported in (2005)1 SCC 679, the Hon'ble Supreme Court examined the validity of the qualifying conditions imposed by the State authorities for procurement of high security number plates for vehicles across the country. In this context, it was observed as under:
"30. Looking to the huge vehicular population of the country, the capacity of the manufacturer has to be as great because plates are to be fitted to a very large number of existing vehicles within first two years. Thereafter, every year about one lakh vehicles in each State would be required to be fitted with the plates. If the bulk of contract is exhausted in the first two years, fresh manufacturers would not come forward to undertake the remaining work as it would not be cost effective. A longterm contract was necessitated for various reasons such as necessity of huge investment for building infrastructure, uninterrupted supply of plates in the first two years Page 40 of 51 C/SCA/1094/2018 JUDGMENT and thereafter every year and the investment of such infrastructure requiring recovery over a long duration by way of supply. If the contract period is lowered, the cost of plate might go up as the huge investment will have to be recovered in a shorter period.
35. Taking up first the challenge to the impugned conditions in the Notices Inviting Tenders issued by various State authorities, we find sufficient force in submissions advanced on behalf of the Union and the State authorities and the contesting manufacturers. The State as the implementing authority has to ensure that scheme of high security plates is effectively implemented. Keeping in view the enormous work involved in switching over to new plates within two years for existing vehicles of such large numbers in each State, resort to 'trial and error' method would prove hazardous. Its concern to get the right and most competent person cannot be questioned. It has to eliminate manufacturers who have developed recently just to enter into the new field. The insistence of the State to search for an experienced manufacturer with sound financial and technical capacity cannot be misunderstood. The relevant terms and conditions quoted above are so formulated to enable the State to adjudge the capability of a particular tenderer who can provide a failsafe and sustainable delivery capacity. Only such tenderer has to be selected who can take responsibility for marketing, servicing and providing continuously the specified plates for vehicles in large number firstly in initial two years and annually in the next 13 years. The manufacturer chosen would, in fact, be a sort of an agent or medium of the RTOs concerned for fulfillment of the statutory obligations on them of providing high security plates to vehicles in accordance with rule 50. Capacity and capability are two most relevant criteria for framing suitable conditions of any Notices Inviting Tenders. The impugned clauses by which it is stipulated that the tenderer individually or as a member of jointventure must have an experience in the field of registration plates in at least three countries, a common minimum net worth of Rs. 40 Crores and either jointventure partner having a minimum annual turnover of at least Rs. 50 Crores and a minimum of 15% turnover of registration plates business have been, as stated, incorporated as essential conditions to ensure that the manufacturer selected would be technically and financially competent to fulfill the contractual obligations which looking to the magnitude of the job requires huge investment qualitatively and quantitatively.
38. In the matter of formulating conditions of a tender document and awarding a contract of the nature of ensuring supply of high security registration plates, greater latitude is required to be conceded to the State authorities. Unless the action of tendering Authority is found to be malicious and misuse of its statutory powers, tender conditions are unassailable. On intensive Page 41 of 51 C/SCA/1094/2018 JUDGMENT examination of tender conditions, we do not find that they violate the equality clause under Article 14 or encroach on fundamental rights of a class of intending tenderer under Article 19 of the Constitution. On the basis of the submissions made on behalf of the Union and State authorities and the justification shown for the terms of the impugned tender conditions, we do not find that the clauses requiring experience in the field of supplying registration plates in foreign countries and the quantum of business turnover are intended only to keep out of field indigenous manufacturers. It is explained that on the date of formulation of scheme in rule 50 and issuance of guidelines thereunder by Central Government, there were not many indigenous manufacturers in India with technical and financial capability to undertake the job of supply of such high dimension, on a long term basis and in a manner to ensure safety and security which is the prime object to be achieved by the introduction of new sophisticated registration plates.
39. The notice inviting tender is open to response by all and even if one single manufacture is ultimately selected for a region or State, it cannot be said that the State has created monopoly of business in favour of a private party. Rule 50 permits, the RTOs concerned themselves to implement the policy or to get it implemented through a selected approved manufacturer.
40. Selecting one manufacturer through a process of open competition is not creation of any monopoly, as contended, in violation of Article 19(1)(g) of the Constitution read with clause (6) of the said Article. As is sought to be pointed out, the implementation involves large network of operations of highly sophisticated materials. The manufacturer has to have embossing stations within the premises of the RTO. He has to maintain a data of each plate which he would be getting from his main unit. It has to be crosschecked by the RTO data. There has to be a server in the RTO's office which is linked with all RTOs' in each State and thereon linked to the whole nation. Maintenance of record by one and supervision over its activity would be simpler for the State if there is one manufacturer instead of multimanufacturers as suppliers. The actual operation of the scheme through the RTOs in their premises would get complicated and confused if multimanufacturers are involved. That would also seriously impair the high security concept in affixation of new plates on the vehicles. If there is a single manufacturer he can be forced to go and serve rural areas with thin vehicular population and less volume of business. Multi manufacturers might concentrate only on urban areas with higher vehicular population."
Thus, the Courts have consistently held that the scope of Page 42 of 51 C/SCA/1094/2018 JUDGMENT judicial review in the context of conditions of tenders is limited to examination on the basis of the arbitrariness, discrimination or malice. Therefore, the Court before intervening in tender or contractual matters in exercise of powers 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?"
10. Therefore, challenge to the impugned E Tender and applying QCBS method for evaluation and / or certain eligibility criteria are required to be tested on the touchstone of the aforesaid decisions of the Hon'ble Supreme Court and decision of this Court in the case of Tractors & Farm Equipment Ltd (supra).
11. Now, so far as the case on behalf of the petitioners that work in question is required to be reserved for Micro and Small Enterprise as per Section 11 of the MSME Act is concerned, at the outset, it is required to be noted that in the Tender Notice itself in clause 35 everybody was informed and / or put to notice that the current intended contract is a composite contract involving material Page 43 of 51 C/SCA/1094/2018 JUDGMENT and labours both and therefore, such contracts involving transfer of property in goods in the execution of the contract are liable to be taxed under the provisions of MVAT Act as deemed sale transactions/ work contracts and differ from procurement of services and goods. That under the said clause everybody was put to notice that the contract does not fall under the purview of Public Procurement Policy on procurement of goods and services from Micro and Small Enterprises, by all Central Ministries / Departments / PSUs of the Government of India, vide Gazette of India No. 503 dated 26.3.2012. Therefore, everybody was informed and / or put to notice that every bidder is likely to make deposit of EMD. Everybody was put to notice that in case EMD is not paid / deposited then the tenders are liable to be summarily rejected. In fact, in the condition of contract itself, there is a justification why the contract in question is "work contract" and not procurement of goods alone. From the following clauses mentioned in the tender notice itself it can safely be concluded that the contract in question is "work contract"and not procurement of goods alone. The relevant clauses in the tender notice to demonstrate that the contract in question is work contract and not procurement of goods alone are Clause 3 (page 80), Clause 4 and 5 (Page 87), Clause 8 (Page 89), Clause 13 (page 92), Clause 15 (Page 93), clause 16.D (Page 96) and Clause 27(Page 106).
11.1. Even considering the scope of the work so specified in Clause 3 of Special Condition of Contract and as per the same scope of work includes Mechanized cleaning & sweeping of Airport terminals including toilets, passengers chairs, sofas, office areas, Page 44 of 51 C/SCA/1094/2018 JUDGMENT internal & external facade, false ceiling work and all roads and paved area of city/ air side including flyovers as conveyed by the Airport Director or his authorized representative and as per the shifts mentioned in the contract. Even as per the clause 13.1 the Contractor is required to execute and complete the work as per specifications and time schedule, progressively deploy adequate equipment tools, tackles and augment the same as decided by the Airport Director or his authorized representative (Clause 13.1 of the Special Condition of Contract). Even considering the clause 13.4 (page 162), clause 28.3 (Page 169), clause 28.5 (Page 171), Clause 28.3 (Page 170), it can be said that contract in question is works contract and not for procurement of the goods alone.
11.2. Therefore, when the contract in question is works contract,not for procurement of goods alone, the same is not required to be reserved for Micro and Small Enterprise as per MSME Act, 2006. At this stage, the decision of the Division Bench of this Court in the case of Surya International (supra) is required to be referred to. In the aforesaid decision, the Division Bench of this Court has specifically observed and held that after considering Section 11 of the MSME Act if the contract is "works contract", neither the provisions of MSME Act shall be applicable nor Public Procurement Policy, 2012 shall be applicable and in that case, bidder who is small / micro enterprise shall not be entitled to the benefits under the MSME Act including exemption of submission of EMD/ Bid Security Fee. At this stage, it is required to be noted that the author of the tender has just for valid reason has labelled and considered the contract in question as "works contract". Therefore, Page 45 of 51 C/SCA/1094/2018 JUDGMENT the submission on behalf of the petitioners that the contract in question, the MSME Act shall be applicable or Procurement Policy, 2012 shall be applicable and that the contract in question ought to have been reserved for Micro and Small Scale Enterprise, has no substance and cannot be accepted. At this stage, it is required to be noted that so far as the petitioners are concerned, the petitioners have not paid EMD as required as per the terms and conditions of the Tender Notice. It is also required to be noted that petitioners have also not challenged the conditions of Deposit of EMD.
12.0. Now, so far as the case on behalf of the petitioners that for the work in question respondent ought not to have adopted the QCBS method is concerned, at the outset, it is required to be noted that as such it is for the author / employer to select the method of selection. In the present case, there is a justification by the respondent authority why they have selected QCBS method. It is the case on behalf of the respondent so stated in the affidavit in reply to meet the growing demands of the passengers and to compete in the present aviation scenario, AAI, CHQ has formulated the Quality and Cost Based System (QCBS)MESS guidelines to be implemented in selected airports through open tender process. It is submitted that the subject work is comprehensive in nature and specialized job for upkeep of high rise Terminal buildings consisting of glass and steel structure upto the hight of 57 ft which includes manpower, machinery(high rise lifts etc) and chemicals / consumables. It is ultimately for the employer to select method of selection in the larger public interest and bidder cannot be permitted to object to the same.Page 46 of 51
C/SCA/1094/2018 JUDGMENT 12.1. As observed by the Hon'ble Supreme Court in the case of Tata Cellular (Supra) when a conscious decision has been taken by the employer to impose certain conditions and/or provide the eligibility criteria and that too after obtaining the opinion of the Experts, normally the Court will not interfere with the same as the Court does not sit as a Court of Appeal but merely reviews the manner in which the decision was made. In the case of Tata Cellular (Supra), the Hon'ble Supreme Court has further observed that the Court does not have expertise to correct the administrative decision. It is further observed that if the review of administrative decision is permitted, it will be substituting its own decision, without necessary expertise which itself may be fallible. At this stage few para No.82 of the decision of the Hon'ble Supreme Court in the case of Tata Cellular (Supra) are required to be referred to and reproduced which are as under:
"82. Bernard Schwartz in Administrative Law, 2nd Edn., p. 584 has this to say :
"If the scope of review is too broad, agencies are turned into little more than media for the transmission of cases to the courts. That would destroy the values of agencies created to secure the benefit of special knowledge acquired through continuous administration in complicated fields. At the same time, the scope of judicial inquiry must not be so restricted that it prevents full inquiry into the question of legality. If that question cannot be properly explored by the judge, the right to review becomes meaningless. 'It makes judicial review of administrative orders a hopeless formality for the litigant.... It reduces the judicial process in such cases to a mere feint.' Two overriding considerations have combined to narrow the scope of review. The first is that of deference to the administrative expert. In Chief Justice Neely's words :
'I have very few illusions about my own limitations as a judge and from those limitations I generalize to the inherent limitations of all appellate courts reviewing rate Page 47 of 51 C/SCA/1094/2018 JUDGMENT cases. It must be remembered that this Court sees approximately 1262 cases a year with five judges. I am not an accountant, electrical engineer, financier, banker, stock broker, or systems management analyst. It is the height of folly to expect judges intelligently to review a 5000 page record addressing the intricacies of public utility operation.' It is not the function of a judge to act as a superboard, or with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator.
The result is a theory of review that limits the extent to which the discretion of the expert may be scrutinised by the nonexpert judge. The alternative is for the court to overrule the agency on technical matters where all the advantages of expertise lie with the agencies, If a court were to review fully the decision of a body such as state board of medical examiners 'it would find itself wandering amid the maze of therapeutics or boggling at the mysteries of the Pharmacopoeia'. Such a situation as a state court expressed it many years ago 'is not a case of the blind leading the blind but of one who has always been deaf and blind insisting that he can see and hear better than one who has always had his eyesight and hearing and has always used them to the utmost advantage in ascertaining the truth in regard to the matter in question'.
The second consideration leading to narrow review is that of calendar pressure. In practical terms it may be the more important consideration. More than any theory of limited review it is the pressure of the judicial calendar combined with the elephantine bulk of the record in so many review proceedings which leads to perfunctory affirmably of the vast majority of agency decisions."
12.2. In the present case, a conscious decision has been taken to adopt the QCBS system in the larger public interest. The same cannot be said to be either arbitrary, mala fide or illegal, which calls for the interference of this Court in exercise of powers under Article 226 of the Constitution of India. Even otherwise, there is a justification by the respondent to adopt QCBS. It is the case on behalf of the respondent authority that earlier when work was Page 48 of 51 C/SCA/1094/2018 JUDGMENT awarded in 2012, during that period footfall was very less but there is tremendous growth in passenger's movement reaching to approximately 7.5 million per annum (projected for the year 2017 18 is 8.6 million per annum) and due to the growing traffic, Corporate Head Quarters of AAI has classified Ahmedabad Airport under QCBS category "A". It is also the case on behalf of the respondent authority that during the recent past authority has received numerous complaints pertaining to upkeeping of Terminals from the passengers and therefore, a conscious decision has been taken to adopt QCBS which as observed herein above cannot be said to be arbitrary. As observed herein above, as such it is for the employer to select the method and manner and even eligibility criteria and the Courts would not be justified in interfering with the same unless the same is found to be so perverse that no prudent person who take such decision and or adopt such method.
13.0. Now, so far as submission on behalf of the petitioners that some of technical bid evaluation criteria and other eligibility criteria on the basis of which technical bid and financial bids to be evaluated are just contrary to the policy of the State Government and the CVC guideline and that by such conditions only few bidders would be in the competition are concerned, at the outset, it is required to be noted that what is challenged by the petitioner is additional eligibility criteria and not sole eligibility criteria. What is challenged by the petitioner is additional eligibility criteria and not principal eligibility criteria. Therefore, as such CVC guidelines shall not be applicable. Even otherwise, the additional eligibility criteria Page 49 of 51 C/SCA/1094/2018 JUDGMENT under challenge cannot be said to be so arbitrary and / or no nexus with the object. The additional eligibility criteria cannot be said to be so arbitrary and / or perverse that no prudent persons would impose such condition.
14.0. Now, so far as submission on behalf of the petitioners that as the petitioner is in the list of approved firm for empanelment in Category A and therefore, petitioner is not required to go through and / or clear eligibility criteria and their bid is required to be considered on merits is concerned, the same was not substance. Merely because, the petitioner may be in the approved list of contractor in Category A, the petitioner does not get any additional right. The petitioner has to compete with others subject to complying with the eligibility criteria both prequalification as well as additional eligibility criteria.
15. Now, so far as reliance placed upon some of the reply under the RTI referred herein above are concerned, learned counsel for the respondent authority is justified in submitting that the replies are required to be considered with respect to the question asked. It is submitted that if question is asked in a particular manner, the answered is bound to be with respect to such question. It is submitted that in the present case the question was not asked with respect to works / contract for which tenders were invited viz.
"Mechanised Environmental Support Services (MESS) UP Keeping of Terminal 1 and Inter Terminal Link". Under the circumstances, none of the communication / replies under the RTI Act shall be of any assistance to the petitioner.Page 50 of 51
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16. Considering the aforesaid facts and circumstances and the law laid down by the Hon'ble Supreme Court in the aforesaid decisions and applying the same to the facts of the case on hand and as observed herein above, contract in question is works contract, for which the MSME Act shall not be applicable and that the authority is justified in applying QCBS method while evaluating bids and the eligibility criteria cannot be said to be perverse and / or arbitrary, both these petitions fail and same deserve to be dismissed and are accordingly dismissed. Rule discharged. No costs.
sd/ (M.R. SHAH, J) sd/ (A.Y. KOGJE, J) KAUSHIK J. RATHOD Page 51 of 51