Karnataka High Court
Tera Software Limited vs State Of Karnataka on 8 January, 2014
Author: A.S.Bopanna
Bench: A S Bopanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 8TH DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
WRIT PETITION No.13253/2013 (GM-TEN)
BETWEEN:
TERA SOFTWARE LIMITED
A COMPANY REGISTERED UNDER
THE COMPANIES ACT
REP. BY ITS PROJECT MANAGER AND
DULY AUTHORIZED PERSON,
NO.471, FIRST FLOOR, 3RD CROSS,
HMT LAYOUT, ANANDANAGAR,
BANGALOTRE-560 024
PRESENTLY AT NO.1/33, 2ND FLOOR,
OBALAPPA STREET, CHIKKAMAVALLI,
BANGALORE-560004. ... PETITIONER
(BY SRI Y K NARAYANA SHARMA, ADV.)
AND:
1. STATE OF KARNATAKA
BY ITS CHIEF SECRETARY,
VIDHANA SOUDHA,
BANGALORE-560 001.
2. THE SECRETARY
DEPARTMENT OF REVENUE
(DEPARTMENT OF STAMPS
AND REGISTRATION)
GOVERNMENT OF KARNATAKA,
M.S.BUILDING, DR.AMBEDKAR VEEDHI,
BANGALORE-560 001.
3. THE INSPECTOR GENERAL OF
REGISTRATION AND
COMMISSIONER OF STAMPS,
8TH FLOOR, KANDAYA BHAVAN,
K.G.ROAD, BANGALORE-560 009.
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4. HCL INFOSYSTEMS LIMITED,
A COMPANY REGISTERED UNDER
THE COMPANIES ACT
AND REP. BY ITS MANAGING DIRECTOR
OA DIVISION, NO.128/1, 2ND FLOOR,
VIDYADEEP BUILDING, ULSOOR ROAD,
BANGALORE-560042. ... RESPONDENTS
(BY PROF. RAVIVARMA KUMAR, ADVOCATE GENERAL A/W
SRI VIJAYAKUMAR A. PATIL, HCGP. FOR R1-3
SRI UDAYA HOLLA, SR. ADVOCATE FOR
SRI NANDISH PATEL, ADV. FOR R4 (NOC))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO;
DIRECT TO RESTRAIN THE R3 FROM AWARDING THE
CONTRACT TO THE R4 AND TO AWARD THE CONTRACT TO
THE PETITIONER AND DIRECT THE R3 TO FOLLOW THE
PROCEDURE IN ACCORDANCE WITH LAW IN DEALING WITH
THE MATTER AND TO FINALIZE THE TENDER PROCESS IN
ACCORDANCE WITH LAW.
THIS WRIT PETITION HAVING BEEN RESERVED FOR
ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING :
ORDER
The petitioner had initially filed this writ petition seeking for mandamus to restrain the third respondent from awarding the contract to the fourth respondent and to award the same to the petitioner. The petitioner has thereafter sought for quashing the order dated 20.09.2013 (Annexure-T) whereby the objections raised by the petitioner was rejected and the bid of the fourth 3 respondent herein was accepted and declared as the lowest bidder (L-1).
2. The third respondent called for tender by notification dated 10.12.2012 through e-procurement portal to procure, install and maintain the new hardware and develop new software called 'New Kaveri'. The process was of three cover tender viz., pre- qualification, technical and commercial. The last date for submission as per corrigendum was fixed as 31.01.2013. Six bidders had responded which included the petitioner and the fourth respondent herein and all of them have pre-qualified. On technical presentation, the Technical Scrutiny Committee (TSC) held its meeting on 12.03.2013 and 13.03.2013. Among the bidders, five had technically qualified. The commercial bid of the five technically qualified bidders were opened on 13.03.2013 and notified in the e-procurement portal. The petitioner had quoted Rs.165,20,43,838/-, while the fourth respondent had quoted Rs.147,91,39,727/- and the others had quoted more than what the 4 petitioner had quoted. Thus the fourth respondent was classified as L-1 and petitioner as L-2 tenderers respectively. The petitioner was however aggrieved that the fourth respondent was treated as L-1 and as such filed their objection with the third respondent on 15.03.2013. The petitioner has immediately filed this writ petition on 18.03.2013 and this Court by order dated 19.03.2013 had initially restrained the third respondent from issuing the work order to fourth respondent.
3. The respondents had thereafter appeared, filed objection statement and application for vacating stay. By order dated 10.04.2013, this Court vacated the stay and on taking note of the fact that Tender Accepting Authority ('TAA' for short) i.e., the first respondent had not taken a decision, had indicated that the first respondent will independently examine the matter and while doing so, the objection raised by the petitioner will also be considered. Subsequent thereto, the objections raised by the petitioner was also noticed and the 5 impugned order dated 20.09.2013 (Annexure-T) is passed by the TAA. The petitioner however being aggrieved by the same has assailed the said order also by amending the petition. Respondents No.1 to 3 and respondent No.4 have filed their separate detailed objection statement justifying their action.
4. Heard Sri Y.K.N. Sharma, learned counsel for the petitioner, Sri Ravivarma Kumar, learned Advocate General along with Sri Vijayakumar A. Patil, learned Government Advocate for respondents No. 1 to 3, Sri Udaya Holla, learned senior counsel along with Sri Nandish Patel, learned counsel for the fourth respondent and perused the petition papers.
5. At the outset, it is to be noticed that the contention on behalf of the petitioners relating to the fourth respondent having not disclosed that they were blacklisted by the Commercial Tax Department in the State of Rajasthan and that the fourth respondent had not quoted for toners and consumables and as such their bid should have been rejected had been urged by 6 the petitioner while seeking consideration of I.A.No.4/2013 for stay of the impugned order dated 20.09.2013. This Court by a detailed order dated 11.10.2013 had not accepted the contention at that stage. The learned senior counsel for the fourth respondent on referring to the said order has contended that the same would act as res-judicata and the petition is liable to be dismissed. The decision in the case of Dattatraya -vs- Srinivasa Bhat Thammanna (ILR 1985 KAR 1946) and in the case of U.P. State Road Transport Corporation -vs- State of U.P. and Another [(2005) 1 SCC 444) wherein it is held that res- judicata applies on the findings between two stages in the same litigation and will not allow the parties to re- agitate the matter again at a subsequent stage is relied on. Having considered the same, though there can be no doubt with regard to the legal position enunciated, in the instant facts, it is to be noticed that a prima facie view was taken in the background of principle of law relating to grant or refusal of interim order. Even otherwise, it has been clarified by the order dated 7 11.10.2013 that the further proceedings will remain subject to result of the writ petition which was for the purpose of adverting to the contentions in detail. Hence, the said contention on behalf of the respondents is not acceptable and the principle of res-judicata cannot be applied in the present circumstance. The matter therefore is required to be adverted further.
6. The learned counsel for the petitioner has strenuously contended that the fourth respondent had been blacklisted by the Rajasthan Commercial Tax Department and as such their Tender was liable to be rejected on that ground itself. Though subsequently the fourth respondent has produced copies of the orders passed by the High Court of Rajasthan, even then the fourth respondent had not disclosed this fact to the Tender Inviting Authority (TIA for short) which amounts to suppression and misrepresentation to have their bid considered. Hence it is his contention that the fourth respondent should have been disqualified at the outset. The learned Advocate General and the learned senior 8 counsel for the fourth respondent would however contend that condition 9.1.1 introduced by Corrigendum (III) dated 22.01.2013 no doubt provided that a bidder should not stand blacklisted by any Central and State Government Department, organization, agencies or public sector unit for unsatisfactory past performance etc. However, in the instant case, though a blacklisting order had been passed, the same had been assailed by the fourth respondent before the High Court of Rajasthan, which had stayed the order from 27.09.2012 till 16.07.2013. In the meanwhile, the Commercial Tax Department, Rajasthan had itself revoked the order on 12.07.2013. In that view, the order of blacklisting was not operating as on the date of submission of the bid. The learned counsel for the petitioner would however contend that even if that be the subsequent position, the fourth respondent ought to have disclosed the same and the affidavit filed is false.
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7. In that regard, the learned counsel for the petitioner has relied on the decision in the case of Uee Electrical Engineers Pvt. Ltd vs. Delhi Jal Board and Another [(2005)1 CTLJ 370 Delhi] wherein it was held that the petitioner therein had knowingly and deliberately tried to withhold information that it had been blacklisted by DDA and when it was caught, it tried to justify and it was held as not tenable. The learned senior counsel for the fourth respondent relied on the decision in the case of Consolidated Coffee Ltd. vs. Agricultural Income Tax Officer, Madikeri and Others [(2001)1 SCC 278] wherein it is held that an order of stay may be in different ways but the effect of it is the same that for the period during which an order of stay operates, the order that is stayed does not exist in the eye of law. Hence, it is held for the period of stay, there is no default and no penalty can be levied.
8. Before adverting to the above aspects, what is also necessary to be noticed is that the contention relating to blacklisting had been urged at the first 10 instance before this Court and while directing consideration of all materials by the TAA, this Court by the order dated 10.04.2013 had left that aspect also to be considered by TAA based on the materials available. In that view, a perusal of the impugned order dated 20.09.2013 (Annexure-T) will disclose that the issue relating to blacklisting had also been considered by the TAA. The condition No.9.1.1 which provided for the same is extracted and the same reads as hereunder:
"The bidder should not stand blacklisted by any Central/State Government Departments, Organizations, Agencies or Public Sector Units for unsatisfactory past performance, corrupt, fraudulent or any other unethical business practices as on the last date of bid submission."
9. One other bidder M/s. WIPRO who had been blacklisted had disclosed the same and had indicated that they had obtained the stay against the black listing order. Insofar as the petitioner, it cannot be in dispute that they had in fact been blacklisted as on the date of submission of the bid and they had also approached the 11 High Court and the order of blacklisting had been stayed. The issue therefore is as to whether the non- disclosure should be treated as misrepresentation or suppression and they should be disqualified and whether disclosure would have entailed disqualification and is it for that reason they had not disclosed.
10. On the legal position based on the decisions cited by the respective learned counsel noticed supra, the decision in the case of Uee Electrical Engineers Pvt. Ltd., is in a situation where the order of blacklisting had not been challenged at all and the earlier writ petition referred thereto was in respect of non-grant of tender by DDA. Hence, the blacklisting order in that case was operating as on the date of submission of the bid and if that had been disclosed, the tender document was liable to be rejected. However, from the decision in the case of Consolidated Coffee Ltd., the position enunciated is that when a stay operates, the order which is stayed does not exist in the 12 eye of law. If the said position of law is kept in view in technical terms, in the instant case, it is evident that the order of blacklisting against the fourth respondent was not in existence as on date of submission of the bid as it had been stayed. To that extent, the affidavit (Annexure-R4) appears in consonance with the legal position. If the said position is technically accepted and condition No.9.1.1 extracted above is perused, the non- disclosure would not offend at that stage as the order of blacklisting was not operating and did not exist, but since it was only an interim order and the decision in the writ petition would have ultimately decided upon the validity or otherwise of the blacklisting, it is necessary that it should be disclosed so that the TIA, TSC and TAA can take note of the situation to take an appropriate decision as the fall out of the acceptance of such a bidder vis-à-vis the pending litigation relating to blacklisting will also have to be kept in view while the TAA taking a decision.
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11. Even if the above aspects are kept in perspective, since in the instant facts, this Court at an earlier instance did not choose to interfere on that ground but had directed the TAA to consider that aspect on the materials, the situation at that point will be relevant. The position relating to the effect of blacklisting was available for consideration by the TAA and has been elaborately considered by it. Apart from the fact that the order of blacklisting had been stayed by the High Court, the order of blacklisting itself had been revoked by Commercial Tax Department of Rajasthan on 12.07.2013. Hence, in a matter of the present nature, what is to be noticed is whether it would have made any difference to the consideration if the fourth respondent had mentioned the details and in that light, whether it would amount to suppression or misrepresentation as an attempt to gain qualification which the fourth respondent would not have otherwise secured. From the facts noticed, it is clear that notwithstanding the blacklisting, the fourth respondent would have qualified as in the case of M/s. WIPRO in 14 view of the stay order and in view of the subsequent revocation of blacklisting, it would be wiped out. Therefore, on facts, it cannot be treated as misrepresentation or suppression so as to disqualify the fourth respondent at this stage only on that ground when they have otherwise technically qualified and have quoted much lower than others and are also L-1 since the blacklisting neither came into effect or subsisted.
12. The learned counsel for the petitioner has next contended that even otherwise the fourth respondent should have been disqualified for not quoting the rates as prescribed under the tender documents. It is contended that Clause-3.5 provides for supply of consumables utilized during the contract period. The payment was for the actual quantity of consumables such as toners etc., which would depend on the number of pages printed and scanned. Hence, it should have been quoted separately as provided in the format, but the fourth respondent has not quoted any amount and as such it is incomplete. Clause-9.5 15 provides for disqualification of the bidder, if they fail to meet the bidding requirement as enumerated therein. The fourth respondent has contravened all of them by submitting the bid as per their own method without adhering to the format or the details that was necessary to be furnished. When the requirement was not complied, it could not have been accepted by subsequent documents to explain that the cost of consumables is included in the Annual Maintenance Contract (AMC) or that it is being supplied free of cost. Clause-5, more particularly 5.2.2 is referred relating to other services and in that context contended that if the cost is not quoted for consumables, it would be difficult to work the contract since time period is specified for supply of consumables and delay in supply will incur penalty based on the rate that is quoted in relation to the delay. Reference is made to the Consumables Opex Costs to point out that toner is included with cost of Low end and High end printer and the column for consumable cost has been left blank. It is contended that from Annexure-N, the terms and condition is a 16 camouflage and misleading and is hidden costs. Hence, it is contended that if the rates are worked out as done by the petitioners in Annexure-P, the AMC of fourth respondent would be more which is due to the fact that consumables are charged. The TAA has not considered these aspects while passing the impugned order and as such the same is liable to be set aside is the contention.
13. The learned Advocate General and the learned Senior counsel for the fourth respondent have sought to rebut such contention. It is contended that though the format requires quoting the rates for consumables, the fourth respondent has not left the same blank, but has written numeric 'O' against the same to indicate that no amount will be charged for the consumables and that it would be supplied free in the AMC and in this regard, the fourth respondent has also addressed a letter dated 15.03.2013. The said further clarifications and undertaking was obtained from fourth respondent in view of objections raised by petitioner and not as additional documents to justify the quote which was not 17 as per format as contended. Hence, the question of disqualifying the fourth respondent did not arise. It is contended that the question of hidden costs does not arise since the total amount as quoted by the fourth respondent which is inclusive of costs is crystallized and nothing more would be payable to the fourth respondent and the total amount only is relevant. Clause-11 i.e., the terms and conditions are referred and it is contended that quoting the price for consumables is not the only method for regulating the contract, but there is sufficient safeguard to secure compliance and also the power to terminate and Bank Guarantee is available for invoking. The calculations as made by the petitioner is self serving. The operating costs and nature of supplies will be monitored by the Sub-registrars and if there is non-compliance, action will be taken. All these aspects relating to the financial implications of the contract in the light of the total cost quoted by the bidders has been considered by the technical experts and has been evaluated and a decision has been taken. The TAA has also looked into all these aspects, more particularly in 18 the light of the objection raised by the petitioner. Hence, it does not call for interference is the contention.
14. Though the rival contentions have been adverted to in detail, before considering the same, it would also be necessary to refer to the decisions cited by the learned counsel for the parties so as to assimilate the legal position and consider the extent to which this Court in a proceedings under Article 226 of the Constitution can examine. The learned counsel for the petitioner has relied on the following decisions:
(i) The case of the Barium Chemicals Ltd., and Another -vs- A.J. Rama and Others (AIR 1972 SC
591), wherein the scope of the expression 'consider it necessary' is stated. It is held that it is therefore manifest that careful thinking or due application of the mind regarding necessity to obtain and examine documents is sine-qua-non for making the order. If the impugned order shows there had been no careful thinking or proper application of mind as to necessity of obtaining and examining the acts specified, the 19 essential requisite to the making of order would be held non-existent.
(ii) The case of W.B. State Electricity Board -vs-
Patel Engineering Co. Ltd. and Others [(2001) 2 SCC 451] wherein it is held that mistakes in the bid documents cannot be permitted to be corrected. Rules and instructions must be complied scrupulously in order to avoid discrimination, arbitrariness and favoritisms. Relaxation by State or its agencies of a rule or condition in favour of a particular bidder is held not permissible. It is also held that there is no obligation to give it to lowest bidder and it is open to negotiate with next lowest bidder, try and reach economically viable and mutually acceptable price.
(iii) The case of TATA Cellular -vs- Union of India [(1994) 6 SCC 651] wherein it is held that the decision making process is reviewable though not the merits of the decision itself. The Court does not sit as Appellate Court but whether decision/action is vitiated by arbitrariness, unfairness, illegality, irrationality or 20 wednesbury unreasonableness can be looked into by the Court. Power should not be used by authority for collateral purpose, if so, it violates Article 14 of Constitution.
(iv) The case of Sterling Computers Limited
-vs- M/s. M & N Publications Limited and Others [(1993) 1 SCC 445] wherein it is held that the State action in commercial/contractual transactions with private parties must be in consonance with Article 14 of Constitution. Decision making if influenced by extraneous or irrelevant considerations would vitiate the decision even if it is without bias.
(v) The case of Gajanana Engineers -vs- The Principal Secretary to Government Energy Department and Others (ILR 2005 KAR 3973-DB) wherein it is held that it is the discretion of the State in choosing its own method, price etc., but State and authorities are bound to adhere to norms, standards and procedure laid down by them and cannot depart arbitrarily. The Court can examine the decision making 21 process and interfere if vitiated by malafides, unreasonableness and arbitrariness and due to violation of the terms and conditions imposed by the authority itself. Public duty is to be fair.
(vi) The case of Monarch Infrastructure (P) Ltd.,
-vs- Commissioner, Ulhasnagar Municipal Corporation and Others [(2000) 5 SCC 287] wherein it is held that while awarding contract, judicial review and interference is called for where Government action is arbitrary or discriminatory. Where one of the conditions is deleted after the expiry of time limit for submission of tenders but before opening and awarding of contract, who did not satisfy condition at the time of submission was set aside.
(vii) The case of Reliance Energy Ltd., and Another -vs- Maharashtra State Road Development Corporation Ltd., and Others [(2007) 8 SCC 1) wherein it is held that in Government contracts there is necessity to provide 'level playing field' to all bidders. There is necessity to indicate norms and benchmark 22 with clarity so as to ensure legal certainty. Test of reasonableness should be satisfied.
15. The learned Advocate General has relied on the following decisions:
(i) The case of Michigan Rubber (India) Limited -vs- State of Karnataka and Others [(2012) 8 SCC 216] wherein it has been held as hereunder:
"23. From the above decisions, the following principles emerge:
(a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play.
These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities;
(b) Fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts 23 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." It has been further held that the Government and its undertakings should have free hand in setting terms and the interference by Courts is called for only if it is arbitrary, discriminatory, mala fide or actuated by bias but not because the Court feels that some other terms would have been more fair.
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(ii) The case of Jagadish Mandal -vs- State of Orissa and Others - [(2007) 14 SCC 517] wherein it is held that judicial review of administrative action is intended to prevent arbitrariness, irrationality and reasonableness, bias and mala fides. The purpose is to check whether the choice or decision is lawful and not to check whether the choice is sound. 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 Court before interfering in tender or contractual matters should pose to itself the questions as to whether the process adopted or decision made by the authority is mala fide or intended to favour some one or whether process adopted or decision made is so arbitrary or irrational that the Court can say the decision is such that no responsible authority acting 25 reasonably and in accordance with relevant law could have reached. The second question is whether public interest is affected. If the answers are in the negative there should be no interference under Article 226 of the Constitution.
(iii) The case of Meerut Development Authority
-vs- Association of Management Studies and Another [(2009) 6 SCC 171] wherein it is held that the judicial quest in administrative matters is to strike the just balance between the administrative discretion to decide matters as per Government policy. Though executive does not have an absolute discretion and certain principles had to be followed, the public interest be the paramount consideration.
(iv) The case of B.S.N.Joshi and Sons Limited
-vs- Nair Coal Services Limited and Others [(2006) 11 SCC 548] wherein it is held that it may be true that a contract need not be given to the lowest tenderer but it is equally true that the employer is the best judge therefore, the same ordinarily being within its domain, 26 Courts interference in such matter should be minimal. The High Courts jurisdiction in such matters being limited, the Courts should normally exercise judicial restraint unless illegality or arbitrariness on the part of the employer is apparent on the face of the record. The employer must take into consideration not only the viability but also the fact that the Contractor would be able to discharge its contractual obligations. However, the essential terms of contract are required to be fulfilled and the details cannot be supplied at a later stage or quote a lower rate upon ascertaining the rate quoted by others.
(v) The case of Master Marine Services (P) Limited -vs- Metcalfe and Hodgkinson (P) Limited and Another [(2005) 6 SCC 138] wherein after referring to the principles which have to be applied in judicial review of administrative decision as enunciated in the earlier decisions has held that there is inherent limitation in judicial review. The Government is the guardian of finances of the State and it has the right to 27 refuse the lowest tenderer. However, such right to choose is not arbitrary power. Even when some defect is found in the decision making process, the Court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should interfere and not otherwise.
(vi) The case of Directorate of Education and Others -vs- Educomp Datamatics Limited and Others [(2004) 4 SCC 19] wherein after referring to the earlier decisions it has been held that it is not for the Courts to say whether the conditions prescribed in the tender under consideration to be better than the ones prescribed in the earlier tender invitation. The Courts cannot strike down conditions set by Government 28 because it feels that some other terms in the tender would have been fair. The Court can interfere only if policy decision is arbitrary, discriminatory or mala fide.
16. The learned senior counsel for the fourth respondent has relied on the following decisions:
(i) The case of Poddar Steel Corporation -vs-
Ganesh Engineering Works and Others [(1991) 3 SCC 273] wherein it is held that as a matter of general proposition, it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail and is not entitled to waive even a technical irregularity of little or no significance. The close examination of the nature of the condition which had been relaxed and its impact before answering the question had been made.
(ii) The case of State of NCT of Delhi and Another -vs- Sanjeev Alias Bittoo [(2005) 5 SCC 181] wherein it is held that judicial review is limited to consideration of legality of decision making process and 29 not legality of the order per se. The mere possibility of another view cannot be a ground for interference. The Courts will not interfere unless the decision suffers from illegality, irrationality and procedural impropriety.
(iii) The case of Raunaq International Limited
-vs- I.V.R. Construction Limited and Others [(1991) 1 SCC 492] wherein it is held that in the process of judicial review, the Court should weigh the complete public interest as against public detriment in granting stay. The Court can examine whether tender conditions have been considered and if any relaxation granted is bona fide and the decision taken is in a fair manner.
(iv) The case of Indian Railway Catering and Tourism Corporation Limited and Another -vs- Doshion Veolia Water Solutions Pvt. Limited and Others [(2010) 13 SCC 364] wherein it is held that it was for the appellant to evaluate the valid offers of the bidders. On the basis of the recommendations of the tender committee the accepting authority found the 30 offer of 'I' to be better than the offer of respondent therein. Hence, it was held that by reversing the decision, the High Court acted as Appellate Authority and exceeded the power of judicial review. In the absence of condition preventing quoting discount, the acceptance subject to discount is not violation of essential terms of tender wherein the tender document required indication of total excise duty amount included in price for plant and equipment. Note did not say it will be rejected. Hence, it was held that the recommendation of tender committee to accept was proper and accepting authority did not find deviation. In such case, there is no breach for non-mention of excise duty. The issue relating to the discount is considered in detail in para 43 of the order.
(v) The decision in the case of Gupta Coal (India) Limited and Another -vs- KIOCL Limited and Another (ILR 2012 KAR 5097) wherein it is held that the power of judicial review in matters as to tenders or award of contracts, certain special features should be 31 borne in mind that is, evaluation of tenders and awarding of contracts are essentially commercial transactions and principles of equity and natural justice stay at a distance.
17. A cumulative perusal of all the decisions noticed above will disclose that in matters of tender and contracts, though the Courts would be entitled to interfere in appropriate cases the scope of judicial review is well circumscribed and is not all encompassing. It is not that every aberration that will call for interference since in the process of evaluation there are several aspects which is required to be taken into consideration by the tender evaluation committee and the tender accepting authority which includes public interest and financial interest of State to be kept in view. The view expressed is that the Government and its undertakings should have a free hand and the Courts would interfere only if the action is arbitrary, discriminatory, malafide or actuated by bias. The only intention is to check that the decision is lawful and if it 32 is found that the decision relating to contract is bonafide and in public interest the Court will not interfere in its power of judicial review even if a procedural aberration or error in assessment or prejudice to a tenderer is made out, nor will equitable consideration or principles of natural justice apply. Of course, if in the process of judicial review the decision making process adopted by the authority indicates total non-application of mind or is influenced by extraneous or irrelevant consideration or discloses that one of the tenderer has been unduly favoured despite non compliance of the essential requirements certainly it would be open for the Court to intervene.
18. In the above backdrop, it is necessary to notice whether such circumstance arises in the instant facts. The contention referred in brief will disclose that the grievance of the petitioner is that the fourth respondent has not quoted the price for the toners and consumables separately, but has included the same in the AMC which is a deviation from the requirement to 33 quote as per the format. Clause 3.5 relating to supply of consumables no doubt indicates that it has been specified therein that the payment for the consumables during the contract period will be for the actual consumption as per the rates discovered in the commercial bid. In the format provided for the Consumables Opex Costs the fourth respondent has indicated the Toner along with Low end printer and High end printer and quoted a lump sum figure but has thereafter not quoted any price for the consumables separately under the column provided therein, whereas the petitioner has shown a lesser value for the printer and has separately quoted for the toner and consumables. Clause 9.5 is therefore relied to contend that there is disqualification.
19. But in the instant facts, it is seen that the said columns have not been left blank by the fourth respondent as contended by the petitioner but as disclosed by the respondents the fourth respondent has mentioned numeric '0' against the said column and it is 34 their contention that they do not choose to charge anything separately for the consumables and the same is included in the AMC due to which the State stands to benefit and the cost of the consumables are absorbed by the fourth respondent in the overall cost of the contract. The petitioner on the other hand has referred to the chart prepared by them as at Annexure-P to contend the actual working would be otherwise. Firstly, in my opinion, the indication of numeric zero is certainly an indication that the fourth respondent would not charge any amount for the consumables and since they have maintained that to be the correct position and that would not charge separately, it cannot be considered as a deviation from the tendering process or the requirement. It would have been a deviation if the fourth respondent had not quoted anything at the time of submission of the tender documents and if they were subsequently allowed by the Authorities to either modify or to indicate some other figure. It may be true that the petitioner had quoted lesser for the printer and the price separately for the consumables while the fourth 35 respondent has quoted a higher price for printer inclusive of the toner but the overall evaluation has been made by the TSC. Further, though the petitioner has now sought to produce a working sheet, such working sheet is also on probabilities and not the actual consumption. Even otherwise this Court will not go into the intricacies of economics involved in the contract which is best left to the authorities who are experts in the field and the evaluation on the whole would be made keeping in view the financial interest of the State which is also in the public interest as held in the decisions noticed supra.
20. In that light the perusal of the papers will show that the wholesome evaluation of the bids of all the tenderers was made and a comparison of the total price quoted was taken into consideration. The price quoted by the petitioner is at Rs.165,20,43,838/-, whereas the price quoted by the fourth respondent is at Rs.147,91,39,727/-. There is a huge difference in the price quoted and evaluated as visible to the naked eye 36 and there is no need for this Court to resort to the calculations in the manner as done by the petitioner nor is it desirable. There is a clear understanding that the fourth respondent would not be entitled to anything more than what has been quoted. If that be the position, the financial evaluation made by the authorities is to enure to the benefit of the public exchequer since the fourth respondent is charging lesser. In view of the contention of the petitioner that the quality of print would suffer as it would be the attempt to extract as many copies, it is an aspect which requires to be monitored by the authorities by fixing responsibilities in that regard and take appropriate action if there is default as per the terms and it would not be possible to speculate on that aspect at this juncture. That would be also the position so as to ensure timely supply of the consumables or to penalize as it is contended that the penalty is to be worked based on the delay in supply of the consumables and the price quoted therefor.
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21. Further, the contention that the petitioner was placed in a disadvantageous position as the fourth respondent was given the benefit of furnishing additional documents by way of affidavit and clarificatory letter is also not material as it does not alter the situation. As already noticed, the facts does not disclose that the fourth respondent was allowed to alter their bid and quote something else as against their earlier quote but the additional undertaking has been taken to ensure that the fourth respondent will not seek for anything more in addition to the price quoted. Such documents were particularly in view of the objections that was put forth by the petitioner. Therefore it is not a case where the fourth respondent was favoured in that regard by permitting them to alter their quotation or documents received to unduly favour them.
22. In the above circumstance, it is necessary to advert to the impugned order dated 20.09.2013 (Annexure-T). The consideration was made by the TAA in the background of the direction issued by this Court 38 to take into consideration all aspects. Apart from referring to the aspect of blacklisting which had been raised, the issue relating to the quote for toners was referred and the consideration of that aspect by the TSC in its meeting dated 15.03.2013 was taken note of and it has been considered that when numeric '0' is quoted against consumables there was no occasion to prevent them from not charging. Such decision by the TSC or TAA in accepting the concession cannot be said to be contrary to law if the view expressed by the Hon'ble Supreme Court in the case of Indian Railway Catering and Tourism Corporation Ltd. (supra) is kept in perspective. Further, when there is huge difference in the price quoted by L-1 and L-2, it would also not be in public interest for this Court to upset the process. Hence, I see no reason to interfere.
In the result, the petition stands dismissed with no order as to costs.
Sd/-
JUDGE hrp/bms