Gauhati High Court
Page No.# 1/2 vs Oil And Natural Gas Corporation Limited ... on 1 August, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/21
GAHC010131142024
2025:GAU-AS:10013
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3345/2024
RAJU ALI
S/O- LATE SAHADULLA ALI,
R/O- VILLAGE- KALGAON,
P.S AND P.O- GELAKEY, PIN-785696,
DIST- SIVASAGAR, ASSAM,
VERSUS
OIL AND NATURAL GAS CORPORATION LIMITED REPRESENTED BY THE
CHAIRMAN AND MANAGING DIRECTOR
OIL AND NATURAL GAS CORPORATION LTD,
DEENDAYAL URJA BHAWAN, 5A, NELSON MANDELA MARG, VASANT
KUNJ, NEW DELHI-110070
2:THE EXECUTIVE DIRECTOR
ASSET MANAGER
ASSAM ASSET
OIL AND NATURAL GAS CORPORATION LTD.
NAZIRA
PIN-785685
3:THE CHIEF GENERAL MANAGER
MM
OIL AND NATURAL GAS CORPORATION LTD.
O/O THE CGM HEAD MM
ROB II
IST FLOOR
NAZIRA
PIN-785685
4:THE CHIEF GENERAL MANAGER (DRILLING)
Page No.# 2/21
OIL AND NATURAL GAS CORPORATION LTD.
OT COMPLEX
DRILLING SERVICES
SIVASAGAR
PIN-785640
ASSAM
5:M/S ASSAM DRILLING FIELDS AND EQUIPMENT SERVICES
HAVING ITS REGHD. OFFICE NEAR KPM CHARALI
A.T ROAD
SIVSAGAR
PIN-785640
ASSAM
REP. BY ITS PARTNER
ROHIT PRASAD KAKOT
For the petitioner (s) : Mrs. M. Hazarika, Sr. Advocate
Ms. S. Newar, Advocate
For the respondent (s) : Mr. D. Saikia, Sr. Advocate
Mr. M. K. Das, Advocate
Mr. A. Ganguly, Advocate
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
Date of Hearing : 01.08.2025
Date of Judgment : 01.08.2025
JUDGMENT AND ORDER (ORAL)
Heard Mrs. M. Hazarika, the learned Senior Counsel assisted by Ms. S. Newar, the learned counsel appearing on behalf of the petitioner and Mr. D. Saikia, the learned Senior Counsel assisted by Mr. M. Das, the learned counsel appearing Page No.# 3/21 on behalf of the Respondent Nos.1 to 4 as well as Mr. A. Ganguly, the learned counsel appearing on behalf of the Respondent No.5.
2. The petitioner herein has approached this Court seeking a writ in the nature of mandamus thereby directing the Respondent Nos.1 to 4 not to reconsider the techno commercial bid of the Respondent No.5 on the basis of the opinion rendered by the Independent External Monitors (IEM).
3. The facts which give rise to the instant proceedings are that the Respondent No.3 had issued an Invitation to Bid on 02.02.2024 for carrying out fabrication works, painting of Rigs & equipment and Bunk House repairing for a period of 3 years for Drilling Services, Assam Asset. The period of the contract was for 3 years which may be automatically extended for the time required to complete the job in progress on the date of expiry of the contract on the same rates, terms and conditions.
4. It is further apparent from the records, more particularly the Invitation to Bid that the Bids were required to be submitted in two parts, i.e. the technical bid and the financial bid. For the purpose of evaluation of the technical bid, there is a document in the name and style of "Bid Evaluation Criteria" (BEC) which is a part of the said Invitation to Bid containing the parameters.
Page No.# 4/21 Clause 2 stipulates the eligibility and experience of the bidder.
5. It further appears from the records that as many as 5 bidders participated in the said bid process. The technical bid of the Respondent No.5 was rejected as would appear from the email dated 29.04.2024 for two reasons. First, that the Respondent No.5 did not fulfill BEC Clause B.2.1(a)(ii) and secondly for non-compliance to Clause B.1.4. In the said email, it was further mentioned that the work orders/PO so submitted by the Respondent No.5 was less than Rs.2.01 crores, and as such, not qualified in terms with Clause B.2.1(a)(ii). It was also mentioned that the Respondent No.5 did not submit a valid labour license or an undertaking.
6. The Respondent No.5 on coming to learn about its bid being rejected, submitted a communication to the Respondent No.3 dated 01.05.2024 stating inter-alia that the rejection of the technical bid of the Respondent No.5 was not proper in as much as the Respondent No.5 was eligible in terms with Clause B.2.1(a)(ii). It was also mentioned in the said communication dated 01.05.2024 that the other ground for rejection of the technical bid which was non-submission of the labour license and/or the undertaking was not in consonance with the Materials Management Manual Clause No.13.4.3.
Page No.# 5/21
7. The Respondent No.5 also submitted a representation to the Independent External Monitors. The Independent External Monitors vide an email dated 04.06.2024 opined that the experience in the education industries may be considered acceptable as per BEC Clause of the subject tender, and accordingly, advised the Respondent Nos.1 to 4 to review the evaluation of the Respondent No.5. The IEM also opined that the non-submission of the labour license or an undertaking for its submission, the Respondent Corporation may seek their clarification.
8. The petitioner came to learn about the opinion expressed by the IEM and submitted a representation on 09.06.2024 to the IEM requesting them to reconsider the issue in as much as the Indian Institute of Technology, Guwahati {for short, 'IIG(G)'} would not come within the ambit of Oil Field installations/Rigs (Drilling/workover), chemical industries/petro-chemical industries/any other large industries.
The representation so submitted by the petitioner to the IEM was however rejected and intimated to the petitioner vide an email dated 25.06.2024. It is under such circumstances, the petitioner had approached this Court by filing the present writ petition.
Page No.# 6/21 At this stage, it is pertinent to observe that though the grievance of the petitioner was solely on account of the opinion rendered by the IEM as well as rejection of the representation submitted to the IEM, but the IEM have not been arrayed as a party to the writ petition.
9. The record reveals that vide an order dated 27.06.2024, the learned Coordinate Bench of this Court had issued notice returnable by 4 weeks and further directed that pending adjudication of the writ petition, the techno-commercial bid of the Respondent No.5 shall not be reconsidered by the tendering authority without the leave of the Court.
10. The materials on record further show that the Respondent Nos.1 to 4 have filed an affidavit-in-opposition and two additional affidavits on 11.11.2014, 18.12.2024 and 21.02.2025 respectively. Replies thereto have also been filed.
In the affidavit-in-opposition which was filed on 11.11.2024, the stand of the Respondent Nos. 1 to 4 was that initially the Respondent Authorities considered that performance of work in an educational institution like IIT(G) would not fall under the ambit of large industries. The Respondent Corporation felt that it would not be appropriate to refer to the Education Sector as education industry. However, after deliberation held in Page No.# 7/21 the meeting with the IEM and thereafter an in-house discussion was held amongst the officials of the Respondent Corporation wherein all the factors were reassessed and it was felt that the phrase "any other large industry" stipulated in the BEC is very generic and even Educational Sector can be accommodated within it. It was further mentioned that any contractor having experience in sectors other than Oil Field installations/ chemical industries/ petro-chemical industries could have also participated in the tender and the work submitted by Respondent No.5 in connection with the works and services relating to IIT(G) fell within the ambit of large industry as per BEC as well as the clarification given by the Respondent Corporation by its reply dated 22.02.2024.
11. The first additional affidavit which was filed on 18.12.2024 by the Respondent Nos.1 to 4 further mentions that the IEM opined that large industry means Oil Field installations/Rigs (Drilling/workover), chemical industries/petro-chemical industries etc. or any other large industries stipulated in the BEC which was very generic and would cover Education Sector/industries. It was further mentioned that pursuant to the in-house discussion held in the meeting with the IEM by the officials of the Respondent Corporation when all factors were reassessed, the representation so submitted by the petitioner to the IEM and the clarification Page No.# 8/21 which was provided to M/S Ahmed Repairing Works wherein the term "etc." has been used has broadened the definition of "large industries" and even Educational Sector could be accommodated within it. It was further stated that the aspect pertaining to the non-furnishing of the labour license and/or the undertaking, the Respondent Corporation was of the opinion that the view of the IEM with regard to seeking clarification for non-submission of the labour license from the Respondent No.5 should be accepted.
12. In the additional affidavit filed by the respondent Nos. 1 to 4 on 21.02.2025, it was mentioned that upon perusal of the purchase orders and the work completion certificate, it was apparent that even though the purchase order was issued by the Research and Development Department of IIT(G), but the said work was tied up with the PHE Department, Government of Assam. It was further stated that all the jobs that were executed relating to the purchase orders were executed at various Sub- Divisions of PHED Boko, Guwahati and Changsari and it was clear that the end user of the said purchase orders was PHED, which is one of the major Departments under the Government of Assam. To the said additional affidavit filed on 21.02.2025, the opinions of the Independent External Monitors dated 03.06.2024 and 25.06.2024 was enclosed.
13. It is further seen that against the affidavit-in-opposition as Page No.# 9/21 well as the additional affidavits referred to herein above, the petitioner had filed the affidavits-in-reply reiterating his stand in the writ petition. It is also seen that the Respondent No.5 had also filed the affidavit-in-opposition bringing on record their stands that they comply with Clause B.2.1(a)(ii).
CONTENTIONS MADE BY THE LEARNED COUNSELS FOR THE PARTIES
14. Mrs. M. Hazarika, the learned Senior Counsel appearing on behalf of the petitioner drawing the attention of this Court to the Bid Evaluation Criteria submitted that a combined reading of Clause B.2.1(a)(i) and Clause B.2.1(a)(ii) would show that the experience has to be at Oil Field installations/Rigs (Drilling/work over), chemical industries/petro-chemical industries/any other large industries. The requirement of the submission of the financial turnover for the last 7 years had to be also in respect to these industries only as would appear from a very reading of Clause B.2.1(a)(ii). The learned Senior Counsel submitted that the education sector would not fall within the ambit of Clause B.2.1(a)(i) as well as Clause B.2.1(a)(ii), and as such, the work orders issued by the IIT(G) in so far as the Respondent No.5 is concerned could not have been taken into consideration. The learned Senior Counsel further submitted that without the work orders, the Respondent No.5 did not have Rs.2.01 crores as the financial turnover for the last 7 years.
Page No.# 10/21
15. The learned Senior Counsel for the petitioner further submitted that the Respondent Authorities on the basis of the representation submitted by the Respondent No.5 and on the advice of the Independent External Monitors (IEM) have changed the goalposts whereby additional industries have been brought in so as to accommodate the Respondent No.5. This act on the part of the Respondent Authorities to change the goalpost in order to accommodate the Respondent No.5 renders the action of the Respondent Authorities arbitrary, unreasonable and even contrary to the Bid Evaluation Criteria.
16. The Learned Senior counsel for the petitioner further submitted that the IEM have no role to play prior to work order being issued in as much as the IEM's role is limited to oversee as to whether the integrity pact has been violated.
17. The learned Senior Counsel for the petitioner further submitted that the Respondent Nos.1 being a statutory Corporation, the statements which have been made as regards certain discussions with the IEM in their affidavit have to based on contemporary records maintained and as it is admitted that no such records were maintained, it shows that the stand which has been taken by the Respondents now is an afterthought.
18. The learned Senior Counsel for the petitioner further Page No.# 11/21 submitted that the affidavits which have been filed from time to time by the Respondent Nos.1 to 4 would show the changing of the stand of the Respondent Nos.1 to 4 in order to accommodate the Respondent No.5. In the last additional affidavit, as submitted by the learned Senior Counsel, the stand taken relates to PHED which was never a stand taken earlier as would be apparent from their own affidavits.
19. Per contra, Mr. D. Saikia, the learned Senior Counsel appearing on behalf of the Respondent Nos.1 to 4 submitted that in the eligibility criteria, the experience was in respect to Oil Field installations/Rigs (Drilling/work over), chemical industries/petro- chemical industries/any other large industries. He submitted that the allegation that the PHED aspect is an afterthought is not correct in as much as the said stand was even taken by the Respondent No.5 when they submitted the representation before the IEM as would be seen from a perusal of the opinion of the Independent External Monitors dated 03.06.2024 wherein at Clause (v), the said aspect has been duly mentioned.
20. The learned Senior Counsel further submitted by drawing the attention of this Court to the opinion of the IEM dated 03.06.2024 and more particularly to Clause 6.4 of the said opinion wherein the IEM had advised the ONGC to review the evaluation of the offer of the Respondent No.5 on the basis that Page No.# 12/21 education industries may be considered acceptable as per the BEC Clause of the subject tender.
21. Mr. D. Saikia, the learned Senior Counsel further submitted that the instant writ petition assails the action of the IEM in submitting an opinion in favour of reconsideration of the case of the Respondent No.5. But, surprisingly, the IEM is not made a party. The learned Senior Counsel further submitted that the allegation so made that the IEM has no role to play would have been best answered by the IEM had the IEM be made a party, and therefore on this count alone, the instant writ petition should be dismissed.
22. The learned Senior Counsel further submitted that in terms with the judgment of the Supreme Court in the case of Afcons Infrastructure Limited vs. Nagpur Metro Rail Corporation Limited and Another, reported in (2016) 16 SCC 818, the Respondent Authorities being the author of the tender would be the best person to understand and appreciate its requirement and interpret its documents. The learned Senior Counsel submitted that the Supreme Court had categorically observed that the constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is malafide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions, which is not the Page No.# 13/21 present case. The learned Senior Counsel for the Respondent Nos.1 to 4 further referred to the judgments of the Supreme Court in the case of Galaxy Transport Agencies, Contractors, Traders, Transports and Suppliers vs. New J. K. Roadways, Fleet Owners and Transport Contractors and Others, reported in (2021) 16 SCC 808 wherein a similar approach was adopted by the Supreme Court.
23. Mr. A. Ganguly, the learned counsel appearing on behalf of the Respondent No.5 submitted that from the work orders and work completion certificate which have been enclosed to the affidavit filed by the Respondents, it would be seen that the Respondent No.5 had performed similar works as have been sought for in the BEC. He further submitted that the works which performed for and on behalf of the IIT, Guwahati, the end user is the Public Health Department of the Government of Assam, and as such, there is no infirmity in the opinion rendered by the IEM to review the earlier evaluation on the aspect of non-compliance to Clause B.2.1(a)(ii). On the question of non-submission of labour license, the learned counsel appearing on behalf of the Respondent No.5 submitted that the said aspect is not an issue. Further to that, in terms with the Integrated Materials Management Manual, these supporting documents can be given by way of clarification.
Page No.# 14/21 ANALYSIS AND DETERMINATION
24. The issue involved in the instant writ petition pertains to as to whether the Respondent No.5 meets the eligibility criteria as set out in Clause B.2.1(a)(ii). For the purpose of deciding the same, Clause B.2.1(a)(i) and Clause B.2.1(a)(ii) being relevant are reproduced herein under:-
"B.2.1(a)(i) Bidder (i.e. Single bidder/Indian Joint Venture company Incorporated) should have minimum 03 years of continuous or cumulative experience in providing similar* services i.e. "Revamping/ Repair/ Fabrication and Painting at Oil field installations / rigs (drilling / work-over) / Chemical industries/ Petrochemical industries / any other Large industries and having executed fabrication, repair and painting jobs related to Bunk Houses/ Fluid Tanks / Mud tanks/ Tank skids/ walkways & floorings/Rig equipment/any other major job during last 7 years (7 years period shall be reckoned from the date of opening of Techno-Commercial Bid).
B.2.1.(a)(ii) The bidder should have executed job orders/contracts of similar* services for the above mentioned jobs of at least Rs. 2.01 crores in last 07 (Seven) years reckoned from the originally SCHEDULED date of (TBO) techno-commercial bid opening.
All the executed job orders/contracts must be of Rs. 5 lakh or more. The bidder submitting the work order/contracts of less than Rs. 5 lakh will not be considered for evaluation purpose.
Page No.# 15/21 Note: Ongoing contracts having satisfactory completion shall be considered as executed for evaluation of 3 years' experience and for job orders/contracts amounting Rs. 2.01 crores as above.
To this effect (i & ii above), Bidder should submit copies of respective contracts, along with documentary evidence in respect of satisfactory execution of each of those contracts, in the form of copies of any of the documents (indicating respective contract number and type of services), such as - (i) Satisfactory completion / performance report (OR) (ii) proof of release of Performance Security after completion of the contract (OR) (iii) proof of settlement / release of final payment against the contract (OR) (iv) any other documentary evidence that can substantiate the satisfactory execution of each of the contracts cited above.
Note: In this regard bidder is required to fill up details of various contract / work-orders in Proforma (Appendix-6 of Annexure-I of the Tender) provided in Techno-Commercial Bid for the documents submitted in support of their experience."
25. From the above quoted Clauses of the BEC, it would be seen that the experience has to be minimum 3 years in providing similar services for which the contract tender was issued, i.e. Revamping/ Repair/ Fabrication and Painting. These similar services were required to be provided at Oil Field installations/Rigs(Drilling/work over), chemical industries/petro- chemical industries/any other large industries. The materials on Page No.# 16/21 record show that the ONGC initially rejected the Bid of the Respondent No.5 vide the email dated 29.04.2024 on the grounds that the Respondent No.5 did not meet the criteria stipulated in Clause B.2.1(a)(ii), i.e. having the total turnover of 2.01 crores in respect to similar services at the installations referred in Clause B.2.1(a)(i). The materials on record show that the said decision was arrived at by not taking into consideration the work orders issued by the IIT(G) on the ground that the work orders were issued by educational institutions. In other words, educational institutions were not considered to come within the purview of 'any other large industries'.
26. The Respondent No.5 thereupon submitted representations and on the basis of the representations submitted to the Respondent No.3 as well as IEM, the IEM opined in their opinion dated 03.06.2024 that the work orders issued by IIT(G) ought to be considered taking into account that the work performed was in respect to education industry. Further, the representation dated 09.06.2024 which was submitted by the petitioner to the IEM was also rejected vide the email dated 25.06.2024
27. The materials on record show that the petitioner herein had approached this Court immediately thereupon without awaiting any decision as to whether the Respondent No.1 to 4 would accept the opinion rendered by the IEM. This Court further finds Page No.# 17/21 it pertinent to observe that the bulk of the grievances of the petitioner were on account of the opinion rendered by the IEM dated 03.06.2024 and the rejection of the representation submitted by the petitioner to the IEM vide email dated 25.06.2024, but the IEM have not be arrayed as a party to the present proceedings. The writ petition in the opinion of this Court ought to fail on this count alone.
28. Be that as it may, from the affidavits filed by the Respondent Nos.1 to 4, it is seen that the said Respondents considered that the work performed by the Respondent No.5 in respect to the work orders issued by the IIT(G) wherein the end user was the Public Health Engineering Department, Government of Assam and therefore, the Respondent Nos.1 to 4 taking the same to be a water industry was of the opinion that the said would come within the ambit of the term 'other large industries'. It may not be out of place to mention that the petitioner had approached this Court at a stage when the Tendering Authority were yet to take a decision on the opinion rendered by the IEM. The affidavits so filed by the Respondent Authorities which includes the Tendering Authority appears that they have reconsidered the scope and ambit of the term 'any other large industries' to include the water industry.
29. At this stage, this Court finds it relevant to take note of the Page No.# 18/21 judgment of the Supreme Court in the case of Afcons Infrastructure Limited (supra) wherein the Supreme Court at paragraph No.15 observed as herein under:-
"5. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given."
30. From the above principles laid down by the Supreme Court in the above quoted paragraph, it would be seen that the employer of the project having authored the tender documents is the best person to understand and appreciate its requirements and interpret its documents. It further stipulates that unless there is malafide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions, the constitutional Courts must defer to this understanding, even if, the interpretation given in tender documents may not be acceptable to the constitutional Courts.
Page No.# 19/21
31. It is also seen that the Supreme Court in the case of Galaxy Transport Agencies, Contractors, Traders, Transports and Suppliers (supra) observed that the author of the tender documents is the best to understand and appreciate its requirements and the same should not be second guessed by the Court in judicial review proceedings.
32. This Court also takes note of that the petitioner herein has approached this Court even without taking into account whether the opinion rendered by the IEM would be accepted by the Respondent Nos.1 to 4 who are the authors of the documents. Be that as it may, the Respondent Authorities were of the opinion that 'other large industries' would include water industry and the work performed by the Petitioner on the basis of work orders issued by the IIT(G) wherein the end user was PHED, Assam can be taken into consideration as per Clause B.2.1(a)(i) of the BEC. This aspect can be discerned from the affidavit filed by the Respondent Nos. 1 to 4. The said opinion so expressed by the Respondent Nos.1 to 4 is not the subject matter of challenge.
33. Be that as it may, can it be said that the Respondent Authorities opinion so expressed as discussed in the foregoing paragraph is perverse to the terms of the Bid document or suffers from malafide. There is no allegation of malafide in that respect. Now the question arises as to whether the said opinion Page No.# 20/21 is perverse? The answer has to be in the negative as the Respondents Authorities were of the opinion that the work performed by the Respondent No. 5 related to works where the end user was PHED, Assam which deals with the water industry. The said in the opinion of this Court would not come within the ambit of perversity.
34. This Court further taking into account the scope of the work in question, i.e. Revamping, Repair, Fabrication and Painting related to Bunk Houses/Fluid Tanks/Mud Tanks/Tank Skids/walkways of flooring Rig Equipment is of the opinion that the decision of the Respondent Authorities to include water industry within the ambit of other "large industries" cannot be said to be perverse or malafide.
35. This Court is further of the opinion that even if assuming that the opinion of the Respondent Nos.1 to 4 to include water industry or education industry within the ambit of "other large industries" may not be a correct interpretation, but as per the settled principles this Court ought not to act as an Appellate Authority and substitute its opinion to that of the Respondent Nos.1 to 4, sans any perversity or malafide is shown.
36. This Court further observes that taking into consideration the work orders of the IIT(G) wherein the end user is PHED to Page No.# 21/21 bring the Respondent No.5 within the ambit of Clause B.2(1)(a)
(i) of the BEC do not appear in any manner to suffer from arbitrariness, illegalities, unreasonableness or irrationality inviting this Court to exercise the power of judicial review.
37. In view of the above, this Court does not find it to be a fit case for exercising its jurisdiction under Article 226 of the Constitution for which the instant writ petition stands dismissed. Interim orders passed earlier stands vacated.
38. However, in the peculiar facts of the case, this Court is not inclined to impose any costs.
JUDGE Comparing Assistant